United States v. Seale Brief for Appellant
Public Court Documents
January 1, 1970
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IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
NO. 18246
UNITED STATES OF AMERICA,
Appellee,
v.
BOBBY G. SEALE,
Appellant.
On Appeal from the United States District Court
for the Northern District of Illinois
BRIEF FOR APPELLANT
JACK GREENBERG
MICHAEL MELTSNER
CONRAD K. HARPER
ELIZABETH B. DUBOIS
ERIC SCHNAPPER
10 Columbus Circle
New York, New York 10019
CHARLES R. GARRY
BENJAMIN DREYFUS
FRANCIS J. McTERNAN
501 Freemont Bldg.
341 Market Street
San Francisco, Calif. 94105
ANTHONY AMSTERDAM
Stanford Law School
Stanford, California 94305
MARSHALL PATNER
109 North Dearborn Street
Chicago, Illinois 60602
Attorneys for Appellant 1
TABLE OF CONTENTS
Statement Of The Issues Presented For Review ......... xix
Statement Of The Case .................................. 1
Summary Of Argument .................................... 4
ARGUMENT:
Introduction ....................... 7
1 < ...............
I. The Court's Wrongful Denial Of Defendant
Seale's Right To Counsel Of His Choice Or,
Alternatively, His Right To Represent Him
self, Requires Reversal Of The Contempt
Conviction ........................................... 1 7
A. The Court Wrongfully Denied Defendant
Seale's Right To Counsel Of His Choice
Or, Alternatively, His Right To RepresentHimself ...................................... 18
Facts .................................... 18
(1) The Court Wrongfully Denied Seale
the Right To Retained Counsel Of His
Choice ...................................... 32
(2) The Court Wrongfully Denied Seale
The Right To Represent Himself ............ 40
B. The Court's Wrongful Denial Of Appellant's
Sixth Amendment Rights Requires Reversal Of
His Contempt Conviction ........................ 49
II. In Imposing An Aggregate Sentence Of Four
Years For Criminal Contempt Without According
Appellant A Jury Trial, The Court Below Vio
lated His Rights As Defined In Bloom v. Illinois,
391 U.S. 194 (1968), and Cheff v. Schnackenbera,
384 U.S. 373 (1966) 54
A. Assuming That 16 Separate Contempts Were
Committed, The Court Erred In Imposing An
Aggregate Sentence In Excess Of Six Months
Without According Appellant A Jury Trial ..... 54
PAGE
B. The Court Erred In Proceeding Against
Appellant On Serious Criminal Contempt
Charges Without According Him A Jury
Trial ........................................... 62
C. Appellant's Conduct Constituted At
Most A Single Contempt And The Court Below
Thus Erred In Imposing A Sentence In
Excess Of Six Months Without According
Appellant A Jury Trial ......................... 65
III. In The Circumstances Of This Case Appellant
Was Entitled To Have His Contempt Charges Heard
By A Judge Other Than The Judge Who Presided
Over The Trial Out Of Which Said Charges Arose .... 77
A. Where Contempt Charges Arise Out Of
A Personal Confrontation With The Trial
Judge And Involve Personal, Critical And
Derogatory Comments About That Judge,
And Where That Judge Finds No Necessity
For Immediate Action, Then The Contemnor
Is Entitled To A Hearing Before Another
Judge ........................................... 79
B. Where The Trial Judge Becomes Per
sonally Embroiled With The Contemnor,
Then The Contemnor Is Entitled To A
Hearing On The Contempt Charges Before
Another Judge ................................... 91
IV. The Court Below Erred In Convicting
Appellant Summarily Rather Than According
Him The Procedural Safeguards Defined In
Rule 42(b) Of The Federal Rules Of Criminal g7
Procedure ...........................................
PAGE
A. Contemnors May Be Summarily Punished
Pursuant To Rule 42(a) Of The Federal
Rules Of Criminal Procedure Only Where
Instant Adjudication Is Found Necessary
To Ensure The Orderly Continuance Of
Trial Proceedings .............................. 98
B. Contemnors May Not Be Summarily
Punished Pursuant To Rule 42(a) Of The
Federal Rules Of Criminal Procedure For
Prior Acts Of Misconduct Where Prejudice
Is Caused By The Delay In Adjudication ........ 108
l i
PAGE
V. Assuming It Was Proper To Proceed Under
Rule 42(a), Appellant Was At Least Entitled
To Some Hearing And The Court Below Erred
In (A) Denying Him Any Opportunity To Pre
sent Evidence Or Argument Going To Guilt,
And (B) Denying Him An Adequate Sentencing
Hearing, Including The Right To Representa
tion By Retained Counsel ...........................
VI. Appellant's Conduct Did Not Constitute
Contempt Within The Scope Of 18 U.S.C. § 401 ..... 119
>• *
VII. Appellant's Conviction Violates Due
Process Because He Was Not Adequately Warned
That His Conduct Would Be Criminally Punished .... 137
VIII. Appellant's Conviction Should Be
Reversed And The Citation For Contempt Dismissed
In The Interests Of Justice ........................ 152
IX. The Matter of Electronic Surveillance ........ 176
Conclusion ............................................. 178
iii
TABLE OF CASES
Adams v. United States, 317 U.S. 269 (1942)............. 41
Alderman v. United States, 394 U.S. 165 (1969)........... 177
Alexander v. Sharpe, 245 A.2d 279 (Me. Sup. Jud. Ct.
1968)...................................................... 1 0 1
Appeal of the S. E. C., 226 F.2d 501
(6th Cir. 1955)..................................... 114,138,152
Bachellar v. Maryland, 38 U.S.L. Wk. 4316 (1970)......... 132Baldwin v. New York, 38 U.S.L. Wk. 4554 ( 1 9 7 0 ) ......... 63
Bayless v. United States, 381 F.2d 67 (9th Cir. 1967) . . 40,43
Bell v. United States, 349 U.S. 81 (1955)........... 66,68,69,72
Berger v. United States, 295 U.S. 78 (1935)............. 156
Black v. United States, 385 U.S. 26 (1966)............... 177
Blockburger v. United States, 284 U.S. 299 (1932) . . . . 69,76
Bloom v. Illinois, 391 U.S.194 (1968) ................... 14,15,16,54,55,56,57,58,59,61,62
63, 64,65,69,73,110,113,115,173
Bohr v. Purdy, 412 F.2d 321 (5th Cir. 1 9 6 9 ) ............. 60
Borum v. United States, 409 F.2d 440 (D.C. Cir. 1967) . . 173
Braverman v. United States, 317 U.S. 49 (1942)....... 66
Bridges v. California, 314 U.S. 252 (1941)............... 14
Brown v. United States, 359 U.S. 41 (1959)........... 14,104,105
Brown v. United States, 356 U.S. 148 (1958) 69,130,138
Brown v. United States, 264 F.2d 363 (D.C. Cir...................................................... 40,34,45,47
Bullock v. United States, 265 F.2d 683 (6th Cir. 1959). . . 76
Butler v. United States, 317 F.2d 249 (8 th Cir.) cert.
denied, 375 U.S. 838 (1963)............................. 41,46,47
Cafeteria Employees Union v. Angelos, 320 U.S. 293 (1943).. 132
Callan v. Wilson, 127 U.S. 540 (1888)................... 63,65
Page
IV
Cammer v. United States, 223 F.2d 322 (D.C. Cir. 1955),
rev'd, 350 U.S. 399 (1956).......................... ' 1 7 3
Cardona v. Perez, 280 N.Y. Supp. 2d 913 (App. Div.
1st Dept. 196 7)........................................... 1 1 4
Carnley v. Cochran, 369 U.S. 506 (1962)................. 34
Carter v. United States, 135 F.2d 858 (5th Cir. 1943) . . 74
Chambers v. District of Columbia, 194 F.2d 336 (D.C
C i r * 1952) .......................................................... 60
Chandler v. Fretag, 348 U.S. 3 (1954)................... 12,112
Cheff v. Schnackenberg, 384 U.S. 373 (1966) . . . 54,55,63,64,115
Chewning v. Cunningham, 368 U.S. 443 (1962)............. 1 1 3
Chivers v. State, 5 Ga. App. 654, 63 S.E. 703 (1909). . . 38
Clark v. District Court, 125 N.W. 2d 264 (Iowa 1963). . . 69
Coleman v. Alabama, 38 U.S.L. Wk. 4535 (1970)........... 52
Commonwealth v. Langnes, 434 Pa. 478, 255 A.2d 131
(1969), cert granted sub nom. Mayberry v. Pennsylvania,
April 6 , 1970, No. 1389.................................. 57,58
Commonwealth v. Mayberry, 255 A.2d 548 (Pa. Sup.
Ct. 1969).................................................. 57
Connally v. General Const. Co., 269 U.S. 385 (1926) . . . 138
Cooke v. United States, 267 U.S. 517 (1925) . . . 87,100,106,114
Cornish v. United States, 299 F. 283 (6 th Cir. 1924). . . 88
Cox v. Louisiana, 379 U.S. 559 (1964).........126,140,149-50,168
Dancy v. United States, 361 F.2d 75 (D.C. Cir. 1966). . . 51
Daschbach v. United States, 254 F.2d 687
(9th Cir. 1958)........................................... 137,147
Dearinger v. United States, 344 F.2d 309 (9th
cir- 1 9 6 5 ) ................................................ 40,46
DeStefano v. Woods, 392 U.S. 631 (1968).................. 5 7
District of Columbia v. Clawans, 300 U.S. 617 (1937). . . 63,65
Page
Cammer v. United States, 350 U.S. 399 (1956)............. 14
v
District of Columbia v. Colts, 282 U.S. 63 (1930) . . . . 63,64
Donovan v. Dallas, 377 U.S. 408 (1964)............ 172
Duke v. United States, 255 F.2d 721 (9th Cir. 1958) . . . 41
Duncan v. Louisiana, 391 U.S. 145 (1968)................. 63,115
Dunn v. United States, 284 U.S. 390 (1932)....... 67
Dunn v. United States, 388 F.2d 511 (10th Cir. 1968). . . 172
English v. State, 8 Md. App. 330, 259 A.2d 822 (1969) . . 38
Ex parte Craig, 282 Fed. 138 (2d Cir. 1 9 2 2 ) ............ 130
Ex parte Hudgings, 249 U.S. 378 (1919)................... 130,136
Ex parte McLeod, 120 Fed. 130 (N.D. Ala. 1903)........... 152
Ex parte Snow, 120 U.S. 274 (1887)........................ 67,71
Ex parte Terry, 128 U.S. 289 (1888)...................... 100
Franken v. United States, 248 F.2d 789 (4th Cir. 1957). . 38
Gautreaux v. Gautreaux, 220 La. 564, 57 So.2d 188 (1952). . 74,75
Gelling v. Texas, 343 U.S. 960 (1952)................... 138
Gideon v. Wainwright, 372 U.S. 335 (1963)............... 52
Gilmore v. United States, 273 F.2d 79 (D.C. Cir. 1959). . 38
Glasser v. United States, 315 U.S. 60 (1942)............ 34,39
Gore v. United States, 357 U.S. 386 (1958)............... 72
Great Lakes Screw Corp. v. N.L.R.B., 409 F.2d 375
(7th Cir. 1969)........................................... 1 3 5
Green v. United States, 356 U.S. 165
(1958)................................... 14,56,99,139,140,155,174
Gregory v. Chicago, 394 U.S. Ill (1969)................. 132
Gridley v. United States, 44 F.2d 716 (6 th Cir. 1930) . . 129
Hallinan v. United States, 182 F.2d 880 (9th
Page
vi
Harrison v. United States, 7 F.2d 259 (2d Cir. 1925). . . 173
Heflin v. United States, 358 U.S. 415 (1959)............. 66,72
Hendrix v. City of Seattle, 456 P.2d 696 (Wash.
Sup. Ct. 1 9 6 9 ) ........................................... 112
Herman v. United States, 289 F.2d 362 (5th Cir. 1961) . . 159
Hickinbotham v. Williams, 228 Ark. 46, 305 S.W. 2d
841 (1957)................................................ 71
Hoffa v. United States, 385 U.S. 293 (1966)............. 177
Holt v. United States, 218 U.S. 245 (1910)................. 61
Holt v. Virginia, 381 U.S. 131 (1965)................. 114,120
Illinois v. Allen, 38 U.S.L. Wk. 4247 (1970). . . 62,77,137,141
In re Atterbury, 316 F.2d 106 (6 th Cir. 1 9 6 3 ) ....... 138
In re Brown, 346 F.2d 903 (5th Cir. 1 9 6 5 ) ........... 154
In re Foote, 76 Cal. 543, 18 P. 678 (1888)........... 103
In re Gault, 387 U.S. 1 (1967)........................ 112
In re Hallinan, 459 P.2d 255 (Cal. 1969)............... 135,137
In re Johnson, 62 Cal. 2d 325, 398 P.2d 420 (1965). . . . 60
In re McConnell, 370 U.S. 230 (1962), reversing
Parmelee Transportation Co. v. Keeshin, 294 F.2d
310 (7th Cir. 1961)...................................... 124
In re Michael, 326 U.S. 224 (1945)...................... 14,140
In re Murchison, 349 U.S. 144 (1955)................... 78,89
In re Oliver, 333 U.S. 257 (1948)................. 100,114,116
In re Osborne, 344 F.2d 611 (9th Cir. 1965) . . . . 74,109,173
In re Williams, 152 S.E. 2d 317 (N.C. Sup. Ct. 1967). . 114
International Bro. of Teamsters, etc. v. United States,
275 F.2d 610 (4th Cir. 1 9 6 0 ) ............................ 74
Page
Harris v. United States, 382 U.S. 162 (1965)..14,90,103,104,105
vii
James v. Headley, 410 F.2d 325 (5th Cir. 1969)......... 60,115
Joelich v. United States, 342 F.2d 29 (5th
Cir. 1 9 6 5 ) ............................................. 40,43
Johnson v. United States, 344 F.2d 401 (5th Cir.
1965).................................................... 114,138
Johnson v. United States, 318 F.2d 855 {3th Cir. 1963) . . 40
Johnson v. Zerbst, 304 U.S. 458 (1938)................... 34
Jones v. Mayer, 392 U.S. 409 (1968)......................... 171
Juelich v. United States, 214 F.2d 950 (5th Cir. 1954). . 61
Kasson v. Hughes, 390 F.2d 183 (3d Cir. 1968) ......... 91,96
Kelley v. United States, 199 F.2d 265 (4th Cir. 1952) . . 173
Kilbourn v. Thompson, 103 U.S. 168 (1881).................. 155
Kinoy v. District of Columbia, 400 F.2d 761 (D.C.
Cir. 1 9 6 8 ) ................................................ 154
Kobey v. United States, 208 F.2d 583 (9th Cir. 1953)... 38
La Buy v. Howes Leather Company, 352 U.S. 249 (1957) . . 155
Ladner v. United States, 385 U.S. 169
Page
(1958) ......................................... 65,66,68,69,72
Lee v. United States, 235 F.2d 219 (D.C. Cir. 1956) . . . 32
Lias v. United States, 51 F.2d 215 (4th Cir. 1931). . . . 38
Long v. State, 119 Ga. App. 82, 166 S.E.2d 365 (1969) . . 38
Longshoreman's Asso. v. Marine Trade Asso., 389 U.S.
64 (1967).................................................. 140
Maclnnis v. United States, 191 F.2d 157 (9th Cir.
1951)..................................................... 101,103
McCarthy v. United States, 394 U.S. 459 (1969)......... 34,35
McConnell v. United States, 375 F.2d 905 (5th
Cir. 1 9 6 7 ) ............................................. 34
McNabb v. United States, 318 U.S. 332 (1943)........... 155
viii
Page
Mapp v. Ohio, 367 U.S. 643 (1961)........................ 170
Marxuach v. United States, 398 F.2d 548 (1st Cir. 1968) . 33,38
Matheson v. Hanna-Schoelkopf Co., 122 Fed. 836 (E.D. Pa.
1903)...................................................... 153
Maxwell v. Rives, 11 Nev. 213 (1876)................. 71,72 ,75
Mempa v. Rhay, 389 U.S. 128 (1967)................... 52,113
Miranda v. Arizona, 384 U.S. 436 (1966)................. 52
Moore v. Michigan, 355 U.S. 155 (1957)................... 113
Murrell v. United States, 253 F.2d 267 (5th Cir. 1958). . 173
Musser v. Utah, 223 P.2d 193 (1950)...................... 138
N.A.A.C.P. v. Button, 371 U.S. 415 (1963)................. 139
Nelson v. Holzman, 300 F. Supp. 201 (D. Ore. 1969). . . . 115
Nilva v. United States, 227 F.2d 74 (8th Cir. 1955) . . . 106
Nye v. United States, 313 U.S. 33 (1940)................. 14
O'Brien v. United States, 386 U.S. 345 (1967)........... 177
O'Bryant v. District of Columbia, 223 A.2d 799
(D.C. Mun. Ct. App. 1966)................................ 60
Offutt v. United States, 348 U.S.
11 (1954).............................. 58,88,89,95,107,138,173
Offutt v. United States, 208 F.2d 842 (D.C. Cir. 1953)
rev'd, 348 U.S. 11 (1954).............................58,167,173
Offutt v. United States, 232 F.2d 69 (D.C. Cir.),
cert, denied, 351 U.S. 988 (1956)....................... 107,116
Offutt v. United States, 145 F. Supp. Ill (D.D.C.
1956).................................................... 74,167
Olimpius v. Butler, 248 F.2d 169 (4th Cir. 1957)......... 173
Olmstead v. United States, 277 U.S. 438 (1928)........... 170
McNeill v. United States, 236 F.2d 149
(1st Cir. 1956)........................................... 74
IX
Panico v. United States, 375 U.S. 29 (1963) . . . .
Parmelee Transportation Co. v. Keeshin, 294
F .2d 310 (7th Cir. 1961) rev'd sub nom.
In re McConnell, 370 U.S. 230 (1962) ...............
Pagano v. United States, 224 F.2d 682 (2nd Cir. 1955)
Parmelee Transportation Co. v. Keeshin, 292
F .2d 806 (7th Cir. 1961) ...............
People v. Burson, 11 111. 2d 360, 143 N.E.
2d 239 (1957) .........................................
People v. Burt, 257 111. App. 60 (1930)...............
People v. Crovedi, 53 Cal. Rptr. 284, 417 ...........
People v. Riela, 200 N.Y. Supp. 2d 43, 7 N.Y.
2d 571, 166 N.E. 2d 840 (1960), cert. denied,
364 U.S. 474 (1960) ..................................
People ex rel. Amarante v. McDonnell,
100 N.Y. Supp. 2d 463 (S. Ct. Kings Co. 1950) . . . .
Powell v. Alabama, 287 U.S. 45 (1932).................
Price v. Johnston, 334 U.S. 266 (1948) ...............
Prince v. United States, 352 U.S. 322 (1957) .........
Raley v. Ohio, 360 U.S. 423 (1959) ...................
Releford v. United States, 288 F.2d 298
(9th Cir. 1961) .......................................
Reynolds v. Cochran, 365 U.S. 525 (1961) .............
Reynolds v. United States, 98 U.S. 145 (1879) .........
Reynolds v. United States, 267 F.2d 235
(9th Cir. 1959) .....................................
Richardson v. State, 288 S.W. 2d 500
(Tex Ct. Crim. App. 1956) ............................
Rollerson v. United States, 343 F.2d 269
(D.C. Cir. 1964).......................................
Sacher v. United States, 343 U.S. 1
(1952), affirming 182 F .2d 416
(2d Cir. 1950) .........................................
x
173
105, 116
59, 124, 135,
173
Page
59, 98, 101,
130
43
103
38, 39
71
72, 75
32
41
72
126, 139, 150
38, 39
32, 112, 113
61
42
38
105, 116
14,58,87,88,8
99,101,102,10
108,109,110,1
138,168,173
Page
Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968) . . . 36, 37, 162
Schick v. United States, 195 U.S. 65 (1904).......... 66
Scull v. Commonwealth of Virginia, 359 U.S.
344 (1959) 151
Shibley v. United States, 236 F.2d 238
(9th Cir.), cert denied, 352 U.S. 873 (1956) . . . . 74, 109, 138
Shillitani v. United States, 384 U.S. 364 (1966) . . . 140
Shoemaker v. K-Mart, 294 F.Supp. 260
(E.D. Tenn. 1 9 6 8 ) ..................................... 74
Smith v. California, 361 U.S. 147 (1959)............. 139
Smotherman v. United States, 186 F.2d 676
(10th Cir. 1950) 130
Sobol v. Perez, 289 F.Supp. 392
(E.D. La. 1 9 6 8 ) ................................... 162
Solano Acquatic Club v. Superior Court, 131
P.874 (Cal. 1 9 1 3 ) ................................. 71
Sorrells v. United States, 287 U.S. 435 (1932) . . . . 167
Specht v. Patterson, 386 U.S. 608 (1967)............. 113
Spencer v. Dixon, 248 La. 604, 181 So.2d 41 (1965) . . 114
State v. Frontier Airlines, Inc.,
174 Neb. 172, 116 N.W. 2d 2 8 1 ........................ 71
State v. Grey, 225 La. 38, 72 So.2d 3 ............... 74
State v. King, 47 La. Ann. 701, 17 So. 288 (1895) . . 71
State v. Lucas, 24 Wis. 2d 82, 128 N.W. 2d
422 (1964) ........................................... 60
State v. Mouser, 208 La. 1093, 24 So. 2d 151 (1945) . . 75
State v. Owens, 54 N.J. 153, 254
A.2d 97 (1969) ....................................... 59, 60
State ex rel Attorney General v. Circuit
Court, 97 Wis. 1, 72 N.W. 193 (1897) ............... 14
Steadman v. Duff, 302 F.Supp. 313 (M.D. Fla.
1969) ................................................ 60
Sanchez v. United States, 311 F.2d 327
(9th Cir. 1 9 6 2 ) ...................................... 41, 47
xi
/ Page
1Strombergjv. California, 283 U.S . 359 (1931)......... 132
(.Tauber v.jGordon, 350 F.2d 843 (3rd Cir. 1965) . . . .
1
74,135,167,1'
Tessmer jr. United States, 328 F.2d 306
(5th Cir. 1 9 6 4 ) .......................................{ 173
Thomas v;. Collins, 323 U.S. 516 (1945)............... 132
Thomas v. United States, 368 F.2d 941
(5th Cir. 1966) ....................................... 155
Tobin v. Pielet, 186 F.2d 886 (7th Cir. 1951)......... 76
Toledo Newspaper Co. v. United States, 247 U.S.
402 (1918) ........................................... 1 0 0
Toussie v. United States, 25 L.Ed 2d 156 (1970) . . . . 76
Townsend v. Burke, 334 U.S. 736 (1948) ............... 113
Turney v. Ohio, 273 U.S. 510 (1927) ................... 95
Ungar v. Sarafite, 376 U.S. 575 (1946) ............... 78,87,90,96,
106,114
Union Producing Co. v. Federal Power
Comm'n., 127 F.Supp. 88 (D.D.C. 1954) ............... 89
United States v. Abbamonte, 348 F.2d 700
(2d Cir. 1965), cert, denied, 382 U.S.
982 (1966) ........................................... 33,44,46
United States v. Abe, 95 F.Supp. 991
(D. Hawaii 1950) ..................................... 75
United States v. Adams, 281 U.S. 202 (1930) ........... 67
United States v. Barnett, 376 U.S. 681 (1964) ......... 56,57,153
United States v. Barnett, 330 F.2d 369 (5th Cir. 1963) 61
United States v. Barnett, 346 F .2d 99 (5th Cir. 1965) . 61,153,159,1'
United States v. Bentvena, 319 F.2d 916
(2d Cir.), cert, denied, 375 U.S.940
(1963) ................................................ 33,46,47
United States v. Bergamo, 154 F.2d 31 (3d Cir. 1946) . 36
United States v. Birrell, 286 F.Supp.
885 (S.D. N.Y. 1968) .................................. 42,45,47
X l l I
Page
United States v. Bollenbach, 125 F .2d
458 (2d Cir. 1942)...................
United States v. Bradford, 238 F.2d 395
(2d Cir. 1956), cert, denied, 352 U.S.
1002 (1957)..........................
United States v. Bradt, 294 F .2d 879
(6 th Cir. 1 9 6 1 ) ......................
United States v. Brandt, 196 F .2d 653
(2d Cir. 1952) ...................
United States v. Cantor, 217 F.2d 536
(2d Cir. 1954) ................... .
United States v. Cole, 365 F.2d 57
(7th Cir. 1966) ...................
United States v. Coombs, 390 F.2d 426
(6 th Cir. 1 9 6 8 ) ..........................
United States v. Cores, 356 U.S. 405 (1958)
United States v. Davis, 260 F.Supp. 1009
(E.D. Tenn.), aff'd, 365 F.2d 251
(6 th Cir. 1966) ........................
United States v. Dennis, 183 F.2d 201
(2d Cir. 1950) ...................
United States v. Denno, 239 F.Supp. 851 (S.D. N.Y.
1965), aff'd, 348 F.2d 12 (2d Cir. 1965),
cert, denied, 384 U.S. 1007 (1966) ...............
United States v. Denno, 313 F.2d 457
(2d Cir. 1963) ...................................
138
36
91,138,173
159
43
38, 43
91, 96
66
40,42,43
46,47,137,13*
40,47,49
119
United States v. Empsak, 95 F.Supp. 1012
(D. Del. 1951)......................................... 67, 71, 75
United States v. Follette, 270 F.Supp. 507
(S.D. N.Y. 1967)....................................... 34
United States v. Galante, 298 F.2d 72
(2d Cir. 1962)............................................ 58,109,135,1
United States v. Gougis, 374 F.2d 758
(7th Cir. 1 9 6 7 ) ....................................... 39
United States v. Grleen, 176 F.2d 169
(2d Cir.) cert, denied, 338 U.S. 851 (1949)......... 138
X l l l
United States v. Hall, 176 F.2d 163 (2d Cir- 1949) . . 101,103
United States v. Harris, 367 F.2d 826 (2d Cir.1966). . 61
United States v. Johnson, 323 U.S. 273 (1944)......... 67
United States v. Johnston, 318 F .2d 288 (6 th Cir.
1 9 6 3 ) .................................................. 32
United States v. Jones, 369 F.2d 217
(7th Cir. 1 9 6 6 ) ....................................... 33
United States v. Landes, 97 F .2d 378 (2d Cir. 1938). . 173
United States v. McMann, 386 F.2d 611 (2d Cir.1967). . 33
United States v. Maragas, 390 F.2d 88
(6 th Cir. 1 9 6 8 ) ....................................... 172,173
United States v. Maresca, 266 Fed. 713 (S.D. N.Y.
1 9 2 0 ) ................................................. 156
United States v. Maroney, 220 F.Supp. 801
(W.D. Pa. 1 9 6 3 ) ...................................... 43
United States v. Mesarosh, 116 F.Supp.
345 (W.D. Pa. 1 9 5 3 ) ..................................... 34,43
United States v. Midstate Horticultural Co.,
306 U.S. 161 (1939)..................................... 66,76
United States v. Mitchell, 354 F.2d 767
(2d Cir. 1966) ................................... 32
United States v. Mitchell, 138 F.2d 831
(2d Cir. 1943)................................... 47
United States v. Pace, 371 F .2d 810
(2d Cir. 1967) ....................................... 14,90,104
United States v. Piccolo, 395 F.Supp. 955
(D. Conn. 1 9 6 7 ) ....................................... 138
United States v. Plattner, 330 F.2d 271,
(2d Cir. 1964)......................................... 40,44,45,46,4
United States v. Private Brands, Inc.,
250 F . 2d 554 (2d Cir. 1 9 5 7 ) .......................... 41
United States v. Rinieri, 308 F.2d 24 (2d Cir.1962)
cert, denied, 371 U.S. 935 (1962)................... 138
Page
United States v. Gutterman, 147 F.2d 540
(2d Cir. 1945) ....................................... 41
xiv
United States v. Rosenberg, 157 F.Supp.
654 (E.D. Pa. 1958), aff'd, 257 F.2d
760 (3d Cir. 1958), aff'd. 360 U.S. 367 (1959). . . . 33
United States v. Sacher, 182 F.2d 416
(2d Cir. 1950), aff'd, 343 U.S. 1, (1952)........... 7,75,106,116
United States v. Schiffer, 351 F.2d 91
(6 th Cir. 1965), cert. denied, 384
U.S. 1003 (1966) ..................................... 74,109,126,13
United States v. Sopher, 347 F.2d 415
(7th Cir. 1 9 6 5 ) ....................................... 173
United States v. Sternmah, 415 F.2d
1165 (6 th Cir. 1969) ................................ 138
United States v. Temple, 349 F.2d 116 (4th Cir. 1965). 91
United States v. Thompson, 214 F.2d 545 (2d Cir.)
cert. denied, 348 U.S. 41 (1954)...................... 57
United States v. Universal C.I.T.
Credit Corp., 344 U.S. 218 (1952) .................... 66,67,72,76
United States ex rel Robson v. Malone, 412
F . 2d 848 (7th Cir. 1969) ............................ 14,104,115,13
174
Watkins v. United States, 354 U.S. 178 (1957)......... 155
White v. Maryland, 373 U.S. 59 (1963)................. 52
Widger v. United States, 244 F.2d 103
(5th Cir. 1 9 5 7 ) ....................................... 108,116
Williams v. New York, 337 U.S. 241 (1949)............. 113
Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966) 154
Wong Gim Ying v. United States, 231
E 2d 776 (D.C. Cir. 1956) ........................ 138
Wood v. Georgia, 370 U.S. 375 (1962)................. 75
Yates v. United States, 355 U.S. 66 (1957)........... 67,71,73,75,1
173
Yates v. United States, 227 F .2d 848 (9th Cir.1955). . 59,137,147
Page
xv
LA. REV. STAT. § 15:11 (1951)
22 Stat. 3 .................
S tatutes:
2 u . s . c . § 192 .
2 u . s . c . § 194 .
10 u . s . c . § 848 .
12 u . s . c . § 592 .
18 u . s . c . § 88 .
18 u . s . c . § I l l .
18 u . s . c . § 254 .
18 u . s . c . § 401 .
18 U.S.C. § 1114
18 U.S.C. § 1282
18 U.S.C. § 1503
18 U.S.C. § 1504
18 u . s . c . § 1506
18 u . s . c . § 1508
18 u . s . c . § 1621
18 u . s . c . § 1622
18 u . s . c . § 2421
22 u . s . c . § 703 .
28 u . s . c . § 519 .
28 u . s . c . § 547 .
28 u . s . c . § 1654
68
67
154
154
71
67
66
139
66
5,49,55,66,
67,68,69,80,
71,72,73,76,
119,131,135,138
140,151,167
139
66
139
139
139
139
139
139
66
71
154
154
Page
40
xvi
29 U.S.C. § 216 66
49 U.S.C. § 4 1 1 ....................................... 66
Other Authorities:
American Bar Association, Canons of Judicial Ethics . 159
American Bar Association, Canons of Professional
E t h i c s ............................................. 156
American Bar Association, Code of Professional
Responsibility ..................................... 156
Anno., Construction of Provision in Federal Criminal
Procedure Rule 42(b) That if Contempt Charges Involve
Disrespect to or Criticism of Judge , He Is Disqual
ified from Presiding at Trial or Hearing Except with
Defendant's Consent, 3 A.L.R. Fed. 420 (1970) . . . 78,79
Anno., Disqualification of Judge in Proceedings to
Punish Contempt, 64 A.L.R.2d 600 (1959) 78
Anno., Right of Defendant in Criminal Case to Conduct
Defense in Person, or to Participate with Counsel,
77 A.L.R.2d 1238 (1961)............................ 41,42
Anno., 99 L.Ed. 19 (1955)............................ 89
Anno., 3 L.Ed.2d 1855 (1959) ........................ 89
IV BLACKSTONE, COMMENTARIES ............................. 65
Federal Rule of Civil Procedure 4 3 ................. 124
Federal Rule of Civil Procedure 4 6 ................. 120
Federal Rule of Criminal Procedure 42 ............... 2,5,61,78,97,
98,99,101,103,
104,105,106,10E
112,114,115,152
Federal Rule of Criminal Procedure 4 4 ............... 40
Frankfurter & Corcoran, Petty Federal Offenses and
the Constitutional Guaranty of Trial by Jury, 39
HARV. L. REV. 917 (1926) .......................... 63,65
Page
29 U.S.C. § 2 1 5 ...................................... 66
xvii
Page
General Rules of the Northern District of Illinois . . 21,36
GOLDFARB, THE CONTEMPT POWER (1963) ................. 5 5
8A MOORE, FEDERAL PRACTICE ............................ I7 3
Note, Contempt Proceedings: Disgualification of Judge
for Bias, 44 CALIF. L. REV. 425 (1956)............. 89
Note, Procedures for Trying Contempts in the Federal
Courts, 73 HARV. L. REV. 353 (1959) ............... 57,89
Note, The Right of an Accused to Proceed Without
Counsel, 49 MINN. L. REV. 1133 (1965) ............. 47
Note, 37 CORN. L. Q. 795 (1952) ...................... 102,103
Note, 1966 DUKE L. J. 8 1 4 ............................ 103
Note, 1967 DUKE L. J. 632 ............................ 56,57,59
Note, 63 MICH. L. REV. 700 (1965) ................... 59
Note, 2 STAN. L. REV. 763 (1950)...................... 102,103
Note, 109 U. PA. L. REV. 67 (1960)................... 1 3 9
Report of the National Advisory Commission on Civil
Disorders (Hon. Otto Kerner. Chairman^ (1968) 7~. . 172
3 STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND . 65
TIME Magazine, April 6 , 1970 .......................... 171,172
Webster's New International Dictionary, 2d Ed......... 68
3 WRIGHT, Federal Practice and Procedure, Criminal
(1969) ................................................ 39,102,103
(
Statement of the Issue! Presented for Review
1. Whether the: court belc
right to counsel of his choic
to self-representation, and v
1 wrongfully denied appellant's
2 or, alternatively, his right
lether his resulting contempt
convictions must therefore be! reversed.
2. Whether the court belc
a jury trial because the coni
suited in an aggregate four-}
misconduct, and (c) constitut
/ wrongfully denied appellant
jmptuous acts charged (a) re-
jar sentence, (b) involved serious
■id at most a single violation
of 18 U.S.C. §401(1).
3. Whether appellant was j
charges heard by another judgl
I
out of a personal confrontatit
involved personal, critical a?j.
that judge, and he found no ntj
tion; and (b) the trial judge
ntitled to have his contempt
where (a) the charges arose
n with the trial judge,
d derogatory comments about
cessity for instant adjudica-
became personally embroiled.
4. Whether the trial court erred in proceeding under
F.R.Cr.P. 42(a) rather than 42(b) where (a) there was no
necessity for instant adjudication, and (b) summary imposi
tion of punishment was prejudicial.
5. Whether appellant was at least entitled to some
rudimentary hearing on the issues of guilt and penalty,
xix
including representation by retained counsel.
6 . Whether appellant's conduct constituted the crime of
contempt as defined by 18 U.S.C. § 401.
7. Whether the court's failure adequately to warn appel
lant that his conduct subjected him to criminal contempt
penalties requires reversal.
8 . Whether misconduct by the trial court and prosecuting
attorneys requires reversal in the interests of justice.
xx
1I
j
i
i
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 18246
UNITED STATES OF AMERICA,
Appellee,
v.
BOBBY G. SEALE,
Appellant.
On Appeal From The United States District Court
For The Northern District of Illinois
BRIEF FOR APPELLANT
Statement of the Case
March 20, 1969, appellant and seven other persons were
indicted for violating the federal anti-riot statute, 18 U.S.C.
§ 2101, and for conspiracy to violate that statute, 18 U.S.C.
§ 371. The indictments charged that violations had occurred
at the time of the 1968 Democratic National Convention in
Chicago. (Record on Appeal, Item No. 2) United States v .
-j3ellinger> 69 CR 180. April 9, 1969, defendants were arraigned
before the United States District Court for the Northern
District of Illinois. Trial was set for September 24, 1969
(Record on Appeal, Item No. 7), and was never thereafter
continued.
Appellant moved prior to trial for a continuance on the
ground that his chosen attorney, Charles R. Garry, could not
attend a September 24 trial but these motions were denied and
trial began on the date scheduled. Appellant again moved at
the beginning of trial for a continuance so that he could be
represented by Garry, and requested alternatively that he be
allowed to represent himself, specifically firing his attorneys
of record other than Garry. The court denied appellant a
continuance, and the right to represent himself. Trial
proceeded without any defense being presented on appellant's
behalf.
November 5, 1969, acting under Rule 42(a) of the Federal
Rules of Criminal Procedure, the trial court summarily adjudged
appellant guilty of 16 acts of contempt, all arising out of
his objections to Garry's absence and his attempts to represent
himself during trial. The court then imposed 16 consecutive
three-month terms, a total of four years. Simultaneously the
court on its own motion declared a mistrial as to appellant
„ . vand severed his trial from that of his co-defendants
1/ The court fixed April 23, 1970, for appellant's second trial
on the riot and conspiracy charges, before the same district judge
that date was eventually postponed at the government's request and
over appellant's objection.
2
(TR 5409-5484).
Details of various aspects of the proceedings below
appear in connection with the relevant arguments, infra.
Notice of appeal from the trial court's judgment
and order was timely filed November 6 , 1969 (Record on
Appeal, Item No. 62).
2/
2 / Since a deferred appendix is being filed pursuant to
Rule 30(c) of the Federal Rules of Appellate Procedure, all
citations are to pages of the parts of the record involved.
Proceedings on September 24 and 25 consisted of pre-trial
motions and jury selection. The trial began on September 26
and its transcript is separately paginated. Hereinafter we
shall refer to the September 24 and 25 transcript as TR*,
and to the trial transcript as TR. Presentation of appellant's
September 26 motion for a continuance took place prior to
trial proceedings that day and its transcript is also
separately paginated. Hereinafter it shall be referred to as Sept. 26 TR.
3
Summary of Argument
Argument I, infra pp. 17-53, argues that the court
wrongfully denied appellant the right to counsel of his choice
and, alternatively, the right to represent himself. Appellant
contends that contempt convictions resulting from a trial at
which he was denied the fundamental right to present a defense
and denied the advice of counsel regarding the propriety of
his conduct during trial, must be reversed. Arguments II - VIII
require reversal of the contempt convictions
regardless of whether appellant was wrongfully denied his right
to counsel of his choice or to self-representation. But since
appellant's Sixth Amendment claims were central to the entire
controversy between him and the court, and the resulting
contempt convictions, the court's error in this respect gives
added force to all of appellant's arguments.
Argument II, infra pp. 54-76, contends that reversal is
required on the ground that appellant was wrongfully denied
his right to a jury trial because: (A) the court imposed an
aggregate term in excess of six months; (B) wholly apart from
the aggregate term imposed, the case involved a serious crime,
in which a jury trial is a matter of right; (C) appellant's
conduct constituted at most a single contempt, for which a term
in excess of six months cannot be imposed without a jury trial.
Arguments III, IV and V contend that appellant's con
victions must be reversed because the court below wrongfully
denied him essential procedural safeguards. In Argument III,
4
infra pp. 77-96, appellant urges that he was entitled to a
hearing before another judge because: (A) the contempt charges
arose out of a personal confrontation with the trial court
under circumstances with an enormous potential for bias; and
(B) the trial judge was actively embroiled in a bitter clash
with appellant throughout the trial. Argument IV, infra
pp. 97-111, contends that the court erred in proceeding under
Rule 42(a) of the Federal Rules of Criminal Procedure rather
than Rule 42(b) because: (A) there was no necessity for instant
adjudication; and (b ) summary imposition of punishment for prior
acts of misconduct was prejudicial. Argument V, infra pp. 112-18
contends that, even assuming it was proper to proceed under
Rule 4 2 (a), appellant was at least entitled to some hearing
and it was error to deny him any opportunity to present evidence
or argument going to guilt, and an adequate sentencing hearing,
including the assistance of retained counsel.
Arguments VI, VII, and VIII contend that appellant is
entitled to reversal and a dismissal of the charges. in
Argument VI, infra pp. 119-36, appellant urges that his conduct
did not constitute the crime of contempt as defined by 18 U.S.C.
§ 401(1). Argument VII, infra pp. 137-51, urges that the
court's failure adequately to warn appellant that his conduct
subjected him to criminal contempt penalties requires reversal.
And in Argument VIII, infra pp. 152-75, appellant argues that
5
misconduct on the part of the trial court and prosecuting
attorneys requires reversal in the interest of justice.
Finally, appellant directs the court's attention to
those facts that are within his knowledge concerning
electronic surveillance relevant to the contempt conviction.
(IX, infra pp. 176-77)
6
ARGUMENT
Introduction
One initial point is basic to an understanding of the
issues raised by this appeal. The occurrences in the dis
trict court during the trial of United States v. Dellinger,
for which appellant was convicted on 16 specifications of
contempt and sentenced to an astounding four years in prison,
are the subject of a serious factual dispute. That dispute
relates, not to the stenographically reported verbal exchanges
which comprise the record, but to their basic interpretation.
Put simply, the district court took the view, and made
the formal finding, that appellant Bobby Seale engaged in a
course of conduct deliberately designed to obstruct and defeat
the administration of justice and to "sabotage the function
ing of the Federal Judicial System." (TR 5411, 5413) In the
trial court's opinion, appellant was guilty not simply of the
16 specified incidents that disturbed his trial. He was guilty
of something far more sinister and serious — an unspecified
general specification of contempt of the sort reversed by the
Court of Appeals for the Second Circuit in United States v. Sacher,'
3/ The Second Circuit reversed Specification I which charged
"a wilful, deliberate and concerted effort to delay and obstruct
the trial." Judge Frank noted that since this charged a conspiracy
essentially, out-of-court evidence was relevant and procedural
regularity essential. (182 F.2d at 455, Frank, J. concurring;
see also 182 F.2d at 423, 430).
7
182 F . 2d 416 (2nd Cir. 1950), aff'd , 343 U.S. 1 (1952), involving
a purposeful and calculated attack on the court and the entire
judicial system.
In diametric opposition to this view is appellant's own
understanding of what happened at his trial. Again put
simply, Bobby Seale, a black man facing a serious criminal charge,
was inexplicably denied the one attorney whom he trusted,
wanted and had chosen to represent him: Charles Garry. Instead
he was told by the court that another attorney, William Kunstler,
whom he had not chosen and did not want, represented him. He
objected vigorously, first asking for Garry and then asking,
in Garry's absence, to represent himself. These requests were
refused and, again and again, the same scene was repeated:
Seale objecting to Kunstler's representation, demanding his
right to Garry or to represent himself; the court insisting
that Kunstler was his lawyer; Seale protesting that Kunstler
was not his lawyer; the court stifling him without explaining
that his record was made; Seale therefore protesting once
more at the next point where, in his layman's judgment, he had
to do so in order to protect his rights.
These two opposing points of view are dramatically
illustrated by the following exchanges:
8
THE COURT: As I think everyone who has attended
the various sessions of this trial must if he is
fair understand, the Court has done its best to
prevent or [not] to have repeated efforts to delay
and obstruct this trial which I think have been
made for the purpose of causing such disorder an
confusion as would prevent a verdict. • • ■conru ̂ ̂ ̂ fchat the actS/ statements
and’conduct of the defendant Seale which I shall
specify here each constitute a separate contemp
of this Court; that each constituted a deliberate
and wilful attack upon the administration of justice
in an attempt to sabotage the functioning of the
federal judicial system. , .MR. SEALE: That is a lie. I stood up and spoke
behalf of myself. . . - and made motions and re
quests • V ght tQ speak and make requests and
make arguments to demonstrate the fact I want o
cross examine. When you say I disrupt, I aye .
never tried to strike anybody, I have never tried
to hit anybody. I have never. You know that.
(TR 5409, 5411, 5412-13)
THE COURT: You may speak to the matters I have
discussed here today, matters dealing with your
contemptuous conduct. The^law obligates me to
call on you to speak at this time.
MR. SEALE: About what? About the fact that I
want a right to defend myself? That's all I am
speaking about.
THE COURT: No, about possible punishment for con
tempt of this court. .
MR. SEALE: Punishment? . . . I have n°thin9about that. I have something to say about the tact
that I want to defend myself still. I want my
rights, to be able to stand up and cross-examine
the witnesses. I want that, so I don't know what
you're talking about.THE COURT: I have tried to make it clear.
MR. SEALE: All you make clear to me is that you
don't want me, you refuse to let me, you will not
qo by my persuasion, or my arguments, my motions, my
requests to be, to the extent of even having to
9
shout loud enough to get on that record for that
record so that they can hear me half the time.
You don't want to listen to me. You don't want
to let a man stand up, contend to you that that
man is not my lawyer, show you and point out to
you that fact, in fact, made motions and told you
that I fired the man.
And to stand up here and say, "Look, I have the
right to defend myself," continuously over and over,
even to the point just recently on Friday you
recognized that I did have only one lawyer by letting
this man and Thomas Hayden to go and to talk to
Charles R. Garry to see about coming out here for
me, which begin to show me that I was beginning to
persuade you to do something, at least allow some
body to investigate my situation. Now what are you
talking about? Now all of a sudden on the record?
MR. SEALE: Well, the first thing, I'm not in no
contempt of court. I know that. I know that I as
a person and a human being have the right to stand
up in a court and use his constitutional right to
speak in behalf of his constitutional rights. That
is very clear, I hope. That's all I have to say.
I still want to cross-examine the witnesses, I make
those requests. I make my motions, and I make those
requests, and I will continue to make those requests,
hoping that once in one way along this trial, you
will recognize my rights as a human being . . .
(TR 5476-79)
Now obviously the court punished appellant with a four-year
prison term — without notice, hearing or counsel — in accordance
with its view that he was guilty of extremely serious misconduct
amounting to an intentional assault upon the administration of
justice. But in appellant's view he was guilty of nothing more
than attempting to assert his claims to be represented by Charles
Garry or, alternatively, to represent himself, preserve his
objections to the denial of those claims, and protest the
fact that his trial proceeded without any defense whatsoever
, . 4/being presented on his behalf.
4/ See, e_._g. , the following exchanges, included in the incidents cited by the court as contemptuous:
MR. SEALE: If you let me defend myself, you could
instruct me on the proceedings that I can act, but I have to just —
THE COURT: You will have to be quiet.
MR. SEALE: All I have to do is clear the record.
I want to defend myself in behalf of my constitutional rights.
THE COURT: Let the record show that the defendant
Seale has refused to be quiet in the face of
the admonition and direction of the Court.
MR. SEALE: Let the record show that Bobby Seale
speaks out in behalf of his constitutional rights,
his right to defend himself, his right to speak in
behalf of himself in this courtroom.
(Incident 7) (TR 3642)
MR. SEALE: I object to that because my lawyer
is not here. I have been denied my right to defend
myself in this courtroom. I object to this man's
testimony against me because I have not been allowed
my constitutional rights.
THE COURT: I repeat to you, sir, you have a lawyer.
Your lawyer is Mr. Kunstler, who represented to the
Court that he represents you.
MR. SEALE: He does not represent me.
THE COURT: And he has filed an appearance. . . .
MR. KUNSTLER: May I say I have withdrawn or
attempted to withdraw.
MR. SEALE: The defense filed a motion before the
jury ever heard any evidence, and I object to that testimony.
THE COURT: For your information, sir, I do not hear
parties to a case who are not represented by lawyers.
You are represented by a lawyer.
11
We submit that the record is completely consistent with
this latter view. Appellant, an untutored layman, who was
4/ (Cont'd)
MR. SEALE: I am not represented by a lawyer. I am
not represented by Charles Garry for your information.
THE MARSHALL: Sit down, Mr. Seale.
THE COURT: Now you just keep on this way and —
MR. SEALE: Keep on what? Keep on what?
THE COURT: Just sit down.
MR. SEALE: Keep on what? Keep on getting denied
my constitutional rights?
THE COURT: Will you be quiet?
MR. SEALE: I object to that man's — can't I object
to that man there sitting up there testifying against
me and my constitutional rights denied to my lawyer
being here?
(Incident 9) (TR 4342-44)
MR. SEALE: If a witness is on the stand and testi
fies against me and I stand up and speak out in
behalf of my right to have my lawyer and to defend
myself and you deny me that, I have a right to make
those requests. I have a right to make those demands
on my constitutional rights.
(Incident 11) (TR 4641)
THE COURT: Now I want to tell you, Mr. Seale, again —
I thought you were going to adhere to my directions.
You sat there and did not during this afternoon
intrude into the proceedings in an improper way.
MR. SEALE: I never intruded until it was the proper
time for me to ask and request and demand that I
have a right to defend myself and I have a right to
cross-examine the witness. I sit through other cross-
examinations and after the cross-examinations were
over, I request, demanded my right to cross-examine
the witness, and in turn demanded my right to defend
myself, since you cannot sit up here — you cannot
sit up here and continue to deny me my constitutional
rights to cross-examine the witness, my constitutional
right to defend myself. I sit throughout other cross-
examinations, I never said anything, and I am not
attempting to disrupt this trial. I am attempting
to get my rights to defend myself recognized by you.
(Incident 15) (TR 4932-33) (emphasis added)
12
in fact receiving no representation, was simply attempting to
protect his interests as best he knew how. Faced with a trial
court which, instead of instructing him that he had raised
5/objections and that they would be preserved for appeal,
insisted that he was properly represented, it is understandable
that appellant would insist on his rights and protest their
denial as best he knew how. For this reason we believe that
the record fails to support the judgments of contempt,
and appellant's conviction must therefore be vacated.
(Arguments I, VI-VIII, infra)
But regardless of whether he is entitled to such relief,
it is clear that the procedures by which the conflict between
appellant's view and the radically different view of the court
was resolved, violated his rights. Precisely because two
such conflicting views of the facts were entertainable, it was
essential that fair and regular procedures be used to determine
appellant's guilt. The procedures used below were markedly
deficient under present-day standards for the trial of serious
contempts in the federal courts, and for this reason also
reversal is required. (Arguments II-V, infra)
5/ Indeed the government finally urged the court to tell
Mr. Seale that his Sixth Amendment claims were properly preserved
for appeal. (TR 4746) However this was not until the twenty-fourth
day of trial, after thirteen of the sixteen allegedly contemptuous
incidents had occurred.
13
For in recent years there has been gradual recognition
of the need to restrict both the substantive scope of
§yoffenses subject to the contempt power and the manner in
2/which that power is exercised. This development has culminated
in a number of recent decisions by the United States Supreme
Court, most notably Bloom v. Illinois, 391 U.S. 194 (1968) and
Harris v. United States, 382 U.S. 162 (1965). These decisions
, 8/signal a new approach to the law of contempt, for they
9/ 10/
have overruled or undermined previous cases, and vindicated
those who have long condemned the essentially despotic nature
of the traditional power of judges to summarily punish for12/criminal contempt.
6/ See, e .g ., Nye v. United States, 313 U.S. 33, 44-48 (1940);
In re Michael, 326 U.S. 224 (1945); Gammer v. United States. 350
U.S. 399, 407-08 (1956); Bridges v. California, 314 U.S. 252 (1941).
7/ See generally Bloom v. Illinois, 391 U.S. 194, 202-06 (1968).
8/ See e.g., United States v. Pace, 371 F.2d 810, 811 (2nd Cir.
1967); see also United States ex rel Robson v. Malone, 412 F.2d
848 (7th Cir. 1969).
9 / E.g., Bloom, supra, overruled Green v. United States, 356
U.S. 165 (1958); Harris, supra, overruled Brown v. United States,
359 U.S. 41 (1959),
10/ Thus while Sacher v. United States. 343 U.S. 1 (1952), has
never been specifically overruled, we will argue infra that it
has been effectively emasculated.
1 1 / See especially Mr. Justice Black's dissent in Green v .
United States, supra n. 9. See also
State ex rel Attorney General v. Circuit Court. 97 Wis. 1, 8,
72 N.W. 193, 194-95 (1897),, characterizing the power of a judge
to punish summarily for criminal contempt as "perhaps, nearest akin
to despotic power of any power existing under our form of government.
14
In Bloom v . Illinois, supra, the Supreme Court finally
brought the criminal contempt power within the bounds of our
traditional criminal jurisprudence in ruling that "criminal
contempt is a crime in the ordinary sense . . .," and "con
victions for criminal contempt, not infrequently resulting
in extremely serious penalties . . ., are indistinguishable
from those obtained under ordinary criminal laws" (391 U.S.
at 201, 207-08). The Court concluded that the criminal con-
temnor must therefore be accorded the traditional procedural
12/protections of our system of criminal justice.
The trial judge's action in the instant case represents
an extreme example of the potential for abuse inherent in the
power to imprison for contempt. Appellant was sentenced to
four years imprisonment at the conclusion of a summary pro
ceeding, at which he was accorded none of the traditional
12/
We cannot say that the need to further
respect for judges and courts is entitled
to more consideration than the interest of
the individual not to be subjected to serious
criminal punishment without the benefit of all
the procedural protections worked out carefully
over the years and deemed fundamental to our
system of justice. Genuine respect, which
alone can lend true dignity to our judicial
establishment, will be engendered, not by the
fear of unlimited authority, but by the firm
administration of the law through those
institutionalized procedures which have been
worked out over the centuries. (391 U.S. at 208)
Bloom overruled a 150-year line of authority which had held
that an individual charged with contempt was not constitutionally entitled to a jury trial.
15
procedural safeguards of the criminal law for acts arising
out of a personal clash between him and the man who then
purported to act as prosecutor, judge and fact-finder. This
is completely inconsistent with the spirit and philosophy of
Bloom v. Illinois, supra, and can only erode the respect for
the judicial system which the contempt power purports to serve.
16
I
THE COURT'S WRONGFUL DENIAL OF DEFENDANT
SEALE'S RIGHT TO COUNSEL OF HIS CHOICE OR,
ALTERNATIVELY, HIS RIGHT TO REPRESENT HIM
SELF, REQUIRES REVERSAL OF THE CONTEMPT
CONVICTION
THE COURT:
MR. SEALE:
THE COURT:
MR. SEALE:
THE COURT:
Mr. Seale, you have a right to speak
now, I will hear you.
For myself?
In your own behalf, yes.
How come I couldn't speak before?
This is a special occasion. (TR 5475)
(After Seale was adjudged guilty of
contempt)
Appellant's claim that he was entitled to be represented
by Charles Garry or, at the least, to present his own defense,
was central to the entire controversy between Seale and the
court and virtually all of the resulting 16 contempt convictions.
It is our contention in Arguments II - VIII, infra, that the
contempt convictions must be reversed regardless of whether
Seale or the court was right on this basic issue. But there
can be little question that the court erred in denying defendant
Seale opportunity to present a defense either through retained
counsel of his choice or through self-representation. This
action by the court, in violation of Seale's constitutional
and statutory rights, gives added support to Arguments II -
VIII and also constitutes an independent ground for reversal
(IB, infra pp. 49-53).
17
A. THE COURT WRONGFULLY DENIED DEFENDANT SEALE'S
RIGHT TO COUNSEL OF HIS CHOICE OR, ALTERNATIVELY,
HIS RIGHT TO REPRESENT HIMSELF.
Facts
August 27, 1969 the defendants in the case of United
States v. Dellinger moved for a continuance on the ground that
attorneys Charles Garry and William Kunstler, because of other
trial engagements, would be unable to participate if the trial
took place September 24, alleging that their participation was
"absolutely essential to assure the defendants herein adequate
representation at their trial." Garry's attached affidavit
alleged specifically that (1) he had been designated chief trial
counsel by the defendants, and (2) he was attorney of record for13/
defendant Seale "whom I have represented for several years."
This motion was denied that same day by the trial court. (Record
on Appeal, Items No. 26, 28)
September 9, 1969 the defense presented a renewed emergency
motion for a continuance until November 15, 1969 on the ground
that Garry had developed a serious medical condition requiring
immediate surgery which would make it impossible for him to
13/ The attached affidavit of attorney Leonard Weinglass
alleged that Seale's incarceration in San Francisco on a
Connecticut murder charge had made it "virtually impossible
for . . . [Garry] to represent his client adequately in con
nection with the charges against [him] pending before this
Court," and had prevented Seale from "indispensable consulta
tion with his co-defendants."
18
participate in a trial commencing September 24. Supporting
affidavits by Garry and Seale alleged that Seale had selected
Garry as his trial attorney and refused to go to trial with
out him, requesting a severance if necessary, because Garry
had demonstrated "unique professional ability, particularly
in courtroom strategy and tactics, to provide proper and
15/
adequate defense to a black militant charged with crime."
14/
14/ Record on Appeal, Item No. 29. Supporting affidavits by
Garry and his physicians gave details of his medical condition
indicating that he was taken seriously ill and hospitalized
August 25, 1969 for a gall bladder condition requiring surgical
removal of the bladder at the earliest possible date, and that
the required hospitalization and recuperation would prevent him
from trying any cases prior to November 15, 1969.
15/ Garry's affidavit alleged that Seale "insists that I defend
him upon the indictment herein, and I am willing and able to do
so, on or after Nov. 15, 1969;" and consequently was moving "for
a continuance of trial, or alternatively, for severance and
continuance." Seale's supporting affidavit explained why Garry
was his chosen trial attorney:
My attorney in the . . . . [instant case],
and generally, is CHARLES R. GARRY of San
Francisco, California, whom I have carefully
selected and chosen as my attorney based on
extensive valuable experience.
* * * *
. . . Many of my colleagues in the Black
Panther Party, and I, have been subjected to
intense harrassment by the white racist prose
cuting authorities throughout the country. . . .
Defense against these attacks has required able,
experienced and imaginative counsel. Charles R.
Garry has demonstrated to me an unique professional
ability, particularly in courtroom strategy and
tactics, to provide proper and adequate defense to
a black militant charged with crime.
Charles R. Garry is my attorney and I cannot go
19
The trial court denied the renewed motion for continuance
(Record on Appeal, Item No. 30) noting that Seale had "of
record for him," attorneys Michael Tigar, Irving Birnbaum
and Stanley Bass, in addition to Garry. The court held that
absence of "lead counsel" due to illness did not necessitate
a continuance until his recovery and that, where a defendant
had some counsel, there was no need to grant him opportunity
to secure other counsel. The court deemed irrelevant the fact
that such other counsel had been engaged only for pre-trial
motions stating: "We don't have limited appearances in
criminal cases." Garry stated that if defendant Seale were
ordered to appear on September 24 he would be "without counsel
16/
at that time." (Sept. 9 Hearing, TR 60, 61, 69)
15/ (Cont'd)
to trial, nor be put on trial, on the indictment
herein until my said attorney is physically able
to appear and to defend me.
A supporting affidavit by Rennard C. Davis alleged that all the
defendants had selected Garry as chief trial counsel.
16/ Garry underwent surgery during the last week of September,
was hospitalized or confined to his home for many weeks there
after, and never appeared at the trial.
20
On or about September 15 appellant uappellant, who for several
months had been incarcerated in San
n San Francisco on another
matter, was transferred bv car e
under th CaUfornia to Chicagounder the supervision of federal • ■
almost a week- thro h orities. The trip took
his ' thr°UghOUt aPPeHant was out of touch with
counsel. (t r 3137- 38)
“ • « » ■ .. Co
co beale m the lock-nn ̂ ,
P ' lled an aPPearance for Seale n *-•
specifically on the form that hi n°tlng
q his appearance was "pro tern "September 24 t-ho ^ ^— i§m*' the daY scheduled for trial vria1' Kunstler filed
another appearance. (Record on Appea! It^PPeai, items No. 31 3
But the record makes clear a 1es clear, although the issue was ■
xnto by the trial court that Sea, “ qUlred
or anv la "eV6r authoriaed Kunstleror any lawyer other than Garry to ™
rry' to represent him at trial,
the opening of the proceedings September 24 prior
to the selection or ' prior
filed an a 3 indicated that he had
n aPPearance for Seale as well as all „
that he and Weinglass 6 °ther defenda*ts,
d _ „ COndUCt the defense. but that a n
defendants objected on the ground of G a r r y s ab O v r y s absence. (t r *
Kunstler's repeated rmi f------ £aaa§^ - ^ 2 T J a ch defendant
only for pre-triai motions. ( T R ^ S ^ h“d been
21
allowed to speak for the record as to why he felt his right
to counsel was thereby denied were refused by the court.
When Weinglass contended that defendant Seale was in fact not
represented at all, the court refused even to hear his argument.
(TR * 4-6, 14-16, 24)
The morning of September 26, after the jury had been
selected but prior to opening statements and to the swearing
of any witness, Seale filed a pro se motion requesting a con
tinuance on the grounds that he had been denied the right to
speak in his own behalf and denied counsel of his choice,
Garry; and specifically firing all other attorneys purporting
18/
to represent him. Following Seale's presentation of the motion * I
18/ The handwritten motion reads as follows (spelling and
grammar as in the original):
. . . I, Bobby G. Seale being one of the
defendants of eight has been, by denied motion,
the right to speak out in my behalf where my
constitutional right to have "Legal council of
my choice who is effective", namely, Attorney
Charles R. Garry who is on record in this court
as my defense council that I have made agreement
with by my choice only that he will assist me in
my defense during this trial.
I submit to Judge Julius Hoffman that the
trial be postponed until a later date where
I, Bobby G. Seale, can have the "legal council
of my choice who is effective", Attorney Charles
R. Garry and if my constitutional rights are not
respected by this court then other lawyers on
record here representing me, except Charles R.
Garry, do not speak for me or represent me as of
this date, 9-26-69. I fire them now until
Charles R. Garry can be made available as chief
council in this trial of so-called "conspiracy
to riot" and in fact be my legal council of
22
and another request for continuance by Kunstler on behalf
of all defendants, the court denied the motion without making
any inquiry into the relevant underlying facts. When Seale
then complained that his constitutional rights were being
denied he was told he could not speak out at all -- that he
could speak only through his attorneys. (Sept. 26 TR 19)
When Attorneys Kunstler and Weinglass concluded their
opening statements to the jury, Seale requested an opportunity
to make his own opening statement. Asked by the court who his
lawyer was, he replied Charles R. Garry. Without further inquiry,
the court denied Seale's request on the sole ground that Kunstler
had filed an appearance for him. Kunstler refused to make an
opening statement on Seale's behalf, because of Seale's posi
tion that Garry was his lawyer. (TR 76-78)
The court subsequently consented to the withdrawal of
attorneys Tigar and Bass, on September 29 and 30
18/ (Cont'd)
choice who is effective" in assisting me in
my defense. The only defense attorney I know
of who can defend me and be effective is
Charles R. Garry who is presently my attorney
on record in this court. . . .
/s/ BOBBY SEALE Chairman Black Panther Party.
(Record on Appeal, Item No. 47)
23
respectively. (Birnbaum was later excused from daily
attendance. TR 3022-35)
September 30, attorneys Kunstler and Birnbaum again made
it clear to the court that Seale had fired them and that they
could not under those circumstances represent him. That
afternoon, in chambers and out of the presence of the defendants,
attorneys Kunstler and Weinglass again informed the court that
Seale was not represented since he had fired Kunstler, arguing
that Seale ought be present since he was pro se. Kunstler
alleged that the only reason he and Birnbaum had not formally
withdrawn was so that they could provide Seale some access to
the outside world. The court indicated doubt as to whether
a defendant could fire his lawyer once trial had begun and
concluded the discussion, still in Seale's absence, by saying
it regarded Kunstler and Birnbaum as Seale's lawyers. (TR 425-
29)
October 2, 1969, in response to Seale's request for law
books so that he could conduct his own defense, the
court said that a defendant had no right to fire his attorney
19/
jL£/ The court at first refused to consent to Tigar's withdrawal
(or to that of attorneys Gerald Lefcourt, Michael Kennedy and
Dennis Roberts) without an admission by defendants that they were
represented. (TR 147-56) Only after the government said it
would not oppose withdrawal did the court permit it without
insisting on a waiver by defendants of Sixth Amendment objections
to Garry's absence. (TR 158-70)
September 30, when attorney Bass moved to withdraw and the
defendants were asked whether they objected, Seale said that he
had "fired all of these lawyers a long time ago" and repeated
his claim that he was represented only by Garry. (TR 391-92)
24
"in the midst of a trial." Seale literally pleaded to be
allowed to speak to this issue but was denied any opportunity
to do so. (TR 694-98)
Throughout the trial, until the declaration of mistrial,
this pattern was repeated. Seale objected to being tried in
the absence of his chosen counsel and attempted to represent
himself at points where some defense was clearly essential;
the court denied him this right and ruled that he was repre
sented by Kunstler on the sole ground that he had filed an
appearance -- without ever inquiring of Seale, or Kunstler,
whether Seale had authorized the appearance and if so with
what intention, and without allowing Seale to make any state
ment regarding the issue. Despite the court's attempts to
silence Seale, and to coerce a confession that he was properly
represented, it became evident that Seale had always intended
Garry to be his trial attorney, and had never agreed to trial
representation by any other attorney in Garry's absence,
20/
20/ Tr 696. Birnbaum repeated his claim that he had been
engaged only as local counsel and further stated that Seale
had refused to consult with him. Kunstler again stated that
his representation had been limited to providing Seale access
to the outside world. (TR 695-98)
25
or consulted with any other attorney regarding his IVdefense.
22/ Thus on October 8 Seale objected to a prosecution witness'
testimony involving him on the ground that Garry was not present*
The court silenced the objection noting that Kunstler had filed
an appearance. (TR 1409-10; see also TR 1486-88) When Seale
claimed that Kunstler was not his lawyer,
the court simply warned Kunstler that
he could be punished for filing unauthorized appearances.
Kunstler made it clear that the reason he had initially filed
an appearance was because he was not allowed to see Seale until
he did so. (TR 1489)
October 10, Weinglass said that Seale was unrepresented and
wished to cross-examine a prosecution witness who had testified
against him. The court denied the request. (TR 1993-95)
October 14, Weinglass asked that Seale be allowed to argue in
opposition to a government motion involving Seale. The court
denied the request on the sole ground that Kunstler had filed
an appearance for Seale. Seale argued that he had no lawyer
and that he wanted counsel of his choice and leave to represent
himself. The court refused to hear his argument, noting that
it was the "middle of the trial", (tr 2204-09)
October 20, Birnbaum's motion to be excused from daily
attendance but to continue as local counsel, on the ground that
he had originally filed an appearance on behalf of all defendants
only to satisfy local rules and to perform certain pre-trial
duties, was granted. Seale noted that he had already fired
Birnbaum. (TR 3022-35)
October 21, Seale's request that the court ask a prosecu
tion witness a question for him was refused. Kunstler refused
to cross-examine the witness on Seale's behalf. (TR 3368-69)
October 27, Seale again demanded the right to defend
himself. (TR 4218-21) On October 28, the court denied Seale's
handwritten, pro se motion for a free daily copy of the trial
transcript so that he could help protect his interests and prove
his innocence. (Record on Appeal, Items No. 54, 55; TR 4388)
That same day the court ruled that it would not permit
either Kunstler or Weinglass to go to California to consult
with Garry unless Seale would acknowledge that he was in fact
represented by Kunstler. (TR 4395) October 29, the court
threatened to revoke the bail of those defendants who supported
Seale's position that he had a right to defend himself.
(TR 4726)
Seale's attempts to argue about his right to defend himself
26
October 20 Seale presented another handwritten, pro se
21/ (Cont'd)
resulted finally in his being bound and gagged. (Tr 4752-4766)
October 30, Seale's written objection to the government
refusal to turn over certain materials was rejected on the
ground that the court would hear only from counsel. (TR 4882-
83)
November 3, the court denied a motion made on behalf of
the other defendants for Seale to be allowed to represent
himself, refusing again to allow Seale to be heard on the issue
and relying solely on the fact that Kunstler had entered an
appearance. (TR 5009-14)
November 4, Seale was denied his right to cross-examine
a prosecution witness who had testified against him. (TR 5233)
Seale subsequently objected to testimony regarding him by
another prosecution witness on the grounds that he had no lawyer
and was not allowed to defend himself. When Kunstler later
refused to cross-examine this witness at all on the ground that
his testimony related only to Seale, Seale's attempt to cross-
examine was denied. (TR 5356-8; 5397-5406) Seale told the
court he had never had a pre-trial conference with Kunstler?
that Garry was the only lawyer he had talked to regarding his
case (TR 5357-58); that he was never asked regarding Kunstler*s
filing of an appearance; and that Kunstler had appeared on his
own accord, without any request by or consultation with Seale;
You never asked me: did I ask him to put in
an appearance for me? This man made an appearance
on his own accord. He signed something to come
into jail before this trial started.
I did not ask this man. I did not consult
this man. I do not want this man for my
lawyer at all, and you are forcing me to keep
him .
(TR 5363)
27
motion, claiming as essential to the right to represent
himself the right to cross-examine opposing witnesses, call
witnesses of his own, and make necessary motions, and asking
for release on bail so that he would be able to defend himself
effectively. (Record on Appeal, item No. 50) In support of
this motion, Seale alleged that at his arraignment April 9
it was his understanding that Garry would be his trial
attorney, and that he thought that his other attorneys of
record (Tigar, Birnbaum and Bass) would represent him only
while he was in California, prior to trial; that during his
six-day transfer from California to Chicago he was held
incommunicado; that he first learned the night of September 25
(the second day of trial proceedings, after some pre-trial
motions had been disposed of and the jury selected), that
Garry had to be hospitalized for surgery and would not be
at the trial; and that he had then immediately prepared, and
presented to the court the next morning, September 26, his
Pro se motion requestirg a continuance on the ground of Garry's
absence and firing his other lawyers of record. (TR 3137-38)
Seale further alleged that in his meetings with the other
defendants and their attorneys he had discussed only his desire
that they not defend him. (TR 3148-49) Despite Seale's specific
request that the court inquire into past events relating to his
claimed right to represent himself the court denied Seale's
motion without inquiring into the underlying facts, noting only
that on September 24 Kunstler had said in Seale's presence that
28
he had filed an appearance for Seale, that the right to fire
one's lawyer and appear pro se was subject to the discretion
of court once trial had begun, that to allow Seale now to
represent himself would cause delay and confusion, and
that denying the motion would not cause prejudice. (TR 3121-44)
October 22 Kunstler formally moved to withdraw as counsel
v 22/
for Seale. (Record on appeal, Item No. 52)(TR 3523) Seale's
attempt to speak to the issue and to correct what he alleged
were misrepresentations by Kunstler was denied by the court.
(TR 3534-36) Seale said he had told Kunstler from the beginning
that he did not want Kunstler to represent him at trial. The
23_/court denied the motion.
22/ His supporting affidavit confirmed previous statements
repeatedly made to the court that (1) until September 22 he
had never appeared for Seale in any court; (2) September 22,
he filed a pro tern appearance solely for purposes of obtaining
entry to the lockup so he could interview Seale; (3) he was
subsequently told by Seale, prior to Seale's September 26
written motion, that Seale didn't want him or any other lawyer
to represent him in the absence of Garry; (4) since then he
had represented Seale only to the extent of providing him
access to the outside world.
23/ The court ruled that Kunstler had actively engaged in
Seale's defense for Ah weeks, cross-examining witnesses on
his behalf; and that withdrawal at this stage would be
disruptive. There is absolutely no support for this in the
record. Interestingly, when Weinglass tried originally to
specify that his cross-examination of Officer Pierson was
not on Seale's behalf but in his capacity as attorney for the
four defendants he was representing, the prosecution objected
that this was improper. (TR 1810-11)
29
November 5, after adjudging Seale guilty of contempt,
the court asked Kunstler and then Seale to speak to the issue
of punishment. Kunstler refused to say anything; Seale
spoke generally on his own behalf. (TR 5475-80)
Thus well before the scheduled trial date of September
24, 1969, the court was informed by Seale and Garry that Garry
was Seale's only choice as d i a l counsel, that Garry was
unable to attend trial on September 24 because of an emergency
medical problem, that Seale did not want to go to trial without
him but would prefer to have his case severed if the entire case
could not be continued, and that if trial proceeded September 24,
Seale would not be represented. Denied any opportunity to speak
to Garry's absence on the first day of trial, Seale nonetheless
made a motion, prj or to any opening statements and immediately
upon his discovery that Garry would not be at trial at all, for
a continuance and fired all other lawyers purporting to act
for him; subsequently he attempted to make an opening statement
on his own behalf. It is hard to see how a layman, given the
circumstances of hisconfinement, could have made any clearer, any
sooner, his position that he wanted and had agreed to representa
tion by Garry, the only lawyer he had come to trust, and that in
the absence of such representation he wanted to represent himself.
The court took the position both before and during trial
that the fact Birnbaum, Bass, Tigar and, on the eve of the
trial, Kunstler, had filed appearances for Seale settled the
issue and disposed of any claims Seale had to counsel of his
30
choice or to self-representation. The court denied the
entire notion of a limited appearance, claiming that any appearance
constituted an obligation to serve in all capacities. More
significant, the court focused solely on the action taken by
the attorneys, refusing even to consider, much less to inquire
into, the issue of whether Seale had authorized attorneys'
appearances and if so to wl;at extent and with what motivation.
Seale was denied the right -- and in the end punished with
contempt for his attempts -- to explain to the court that he had
never authorized anyone but Garry to act as his lawyer and that,
in the absence of Garry, he wanted to represent himself.
Even assuming the court was right in asserting that Kunstler's
filing of an appearance implied a duty to appear generally and
an assurance to the court that he was prepared to do so, that
is irrelevant to the issue of whether Seale had ever authorized
Runs tier to act for him or waived his right to represent himself.
Seale was never allowed a hearing on that central issue, and
the evidence contained in the record indicates that had such
an inquiry been conducted it would have shown that Seale did not
authorize Kunstler to act for him in Garry's absence and never waive
his right to be represented by Garry or to represent himself.
Finally, despite the court's attempt to coerce Seale into
waiving his Sixth Amendment objections by conceding that he was
represented by Kunstler, and despite the court's continued
assertions that Kunstler was his lawyer, Seale was provided
with no representation whatsoever.
31
A criminal defendant has an "unqualified" right to
retained counsel of his choice and since " [a] necessary-
corollary is that a defendant must be given a reasonable
opportunity to employ and consult with counsel" this right may
24/
necessitate the granting of a continuance. This right is so
important that it must be implemented even where the government
has an interest in proceeding immediately to trial, or the
defendant is responsible for the delay because he has changed
2^
his mind regarding who he wishes to represent him. In fact,
1• The Court Wrongfully Denied Seale The Right To
Retained Counsel Of His Choice
24/ Chandler v. Fretag, 348 U.S. 3, 9, 10 (1954); Powell v.
Alabama, 287 U.S. 45, 53, 68-69 (1932); Reynolds v. Cochran,
365 U.S. 525 (1961) .
25/ In United States v. Mitchell, 354 F.2d 767 (2nd Cir. 1966),
defendant decided on the day set for trial that he no longer
wished to be represented by the lawyer whom he had originally
selected and who had represented him for about a year. The court
continued the case five days to give defendant opportunity to
select substitute counsel, but the court of appeals reversed on
the ground that defendant had not been given enough time.
In United States v. Johnston, 318 F.2d 288 (6th Cir. 1963),
the defendant told the court on the day set for trial that he had
learned four days before that one of his two attorneys could not
be at trial and that this was the attorney he had thought would
represent him at trial. The government argued that a continuance
would be disruptive since many witnesses had been subpoenaed,
and the court ordered the defendant to trial, represented by
only one of his two attorneys. Despite a finding that defendant
had not been prejudiced, the court of appeals reversed.
In Lee v. United States, 235 F.2d 219 (D.C. Cir. 1956),
the defendant had originally retained two attorneys. After
numerous continuances, defendant told the court on the day set
for trial that he had decided he wished to be represented
instead by another attorney, but that attorney had discovered
he had a conflict of interest necessitating his withdrawal.
The trial court, noting that prosecution witnesses were present,
32
26/in extreme circumstances amounting to a virtual waiver.
the right to retained counsel of choice can be denied only
J5/ (Cont'd)
insisted that defendant go to trial with one of the attorneys
he had originally selected. The court of appeals reversed on
the ground that defendant was entitled to counsel of his choice.
See also United States v. McMann. 386 F.2d 611 (2d Cir.
1967) (reversing, where retained counsel was fired and withdrew
during trial, on the ground defendant given inadequate time to
select new counsel of choice).
26/ Thus a defendant cannot be allowed to manipulate this
right so as endlessly to obstruct justice by repeated demands
for a continuance claiming that he has not yet obtained counsel
or that he has changed his mind as to who he chooses to be
defended by. See, e .g ., United States v. McMann, supra, n.25
(dictum); United States v, Bentvena, 319 F.2d 916, 936-37 (2nd
Cir. 1963); Marxuach v. United States, 398 F.2d 548, 551 (1st
Cir. 1968) (defendant's insistence on particular counsel must
be in good faith.) Cases denying a defendant counsel of choice
have uniformly relied on such extreme circumstances as grounds
for a finding of waiver. See, e.g., United States v. Jones,
369 F.2d 217, 219, 220(7th Cir. 1966) ("Jones, without excuse
but with forewarning and knowledge of the necessity to choose,
simply failed or refused to do so."); United States v. Abbamonte,
348 F.2d 700, 703 (2nd Cir. 1965), cert, denied, 382 U.S. 982
(1966) (denial to defendant of opportunity to fire attorney on
day of trial and obtain new counsel of choice upheld on ground
that defendant had effectively waived his right to counsel where
record revealed numerous continuances, delays and previous
changes in counsel which "could only have a dilatory purpose'1);
United States v. Rosenberg, 157 F. Supp. 654, 658, 659 (E.D. Pa.
1958), aff'd, 257 F.2d 760 (3rd Cir. 1958), aff'd, 360 U.S. 367
(1959) (upholds denial of continuance despite defendant's chief
trial counsel's illness on date of trial where both defendant
and chief trial counsel dilatory in failing to inform court of
illness prior to date case called for trial, where defendant
represented by another attorney of his choice who had been
associated in preparation of trial, and where defendant not
apparently prejudiced; the court found defendant had waived his
right to counsel of his choice -- "a defendant's conduct may
prevent his reliance on this [Sixth Amendment] privilege when
all the facts indicate that he has been unreasonably dilatory
in asserting his right to counsel claimed to be his choice as
chief trial counsel at the moment of trial, that counsel acting
for him is competent, and that any failure in such counsel's
33
And evidence that the defendant has waived his rights or
engaged in dilatory conduct amounting to waiver must
27/
clearly appear on the record.
Thus the trial court had a clear obligation to inquire
into the facts surrounding Seale's claim to representation
by Garry in order to determine whether Seale had effectively
waived his right to counsel of choice. Since this inguiry
was never made, denial of Seale's demand that he be represented
by Garry was clearly erroneous. Although Garry was clearly
Seale's chosen trial attorney, the court denied requests both
prior to trial and during trial for a continuance solely on
the ground that other attorneys had filed appearances on Seale's
behalf. By refusing even to recognize that it was Seale's
rights that were at issue, and by denying him a hearing on
the relevant facts, the trial court erred. In the absence
of such a factual inquiry the record cannot show any waiver
of Seale's right to counsel by dilatory tactics or consent to
26/ (Cont'd)
opportunity for preparation is due to the fault of the defendant");
United States v. Follette. 270 F. Supp. 507 (S.D. N.Y. 1967)
(after numerous delays at defense request, where defendant had
had opportunity to be represented by counsel he originally
selected or to select counsel, and where a prosecution witness
had been held in protective custody for six months, trial court
aPPointed member of original lawyer's firm, who had been repre
senting defendant in pre-trial matters); United States v. Mesarosh,
116 F. Supp. 345 (W.D. Pa. 1953).
22/ See, e.g., McConnell v. United States. 375 F.2d 905 (5th
Cir. 1967). See also Carnley v. Cochran. 369 U.S. 506 (1962);
Glasser v. United States, 315 U.S. 60 (1942); Johnson v. Zerbst,
304 U.S. 458 (1938); cf. McCarthy v. United States. 394 U.S. 459
465-66 (1969), infra, n.28.
34
representation by other counsel.
The record not only fails affirmatively to show waiver
-- it indicates that Seale was entitled to a continuance so
that he could be represented by Garry or some other counsel
of his choice and that it was error to force him to trial
with his co-defendants' counsel. Despite the court's refusal
to conduct a factual inquiry it was clear to the court, well
before trial, that Garry would not be able to be at trial on
September 24, because of illness; that he would be available
if a reasonable continuance were granted; and that he was the
only lawyer Seale wanted to represent him at trial and the
only lawyer Seale trusted. At trial, Seale stated repeatedly,
despite the trial court's attempts to silence him,that he
had never agreed to trial representation by any lawyer other
than Garry or consulted with any other lawyer regarding his
defense.
The court, in denying a continuance, relied initially
on the fact that three other lawyers, Birnbaum, Bass and
Tigar, had filed appearances on Seale's behalf. But Seale
made it clear that he never intended that these lawyers
handle his defense -- that at most he had agreed to their
participation prior to trial, for purposes of service and
28/ McCarthy v. United States, 394 U.S. 459, 465-66 (1969),
holds that before a federal court can accept a guilty plea
it must personally inquire of the defendant into the facts
relevant to a finding that defendant had voluntarily waived
his rights to trial. The Court found such a factual inquiry
essential (1) so that the trial court could determine whether
defendant had in fact waived his right to trial; and (2) so that a complete record of the factors underlying that deter
mination would exist.
35
motions. The trial court insisted that in filing appearances
the lawyers obligated themselves to full trial representation.
While the court never focused on Seale's understanding with
these lawyers, it may have felt that if a defendant allowed
a lawyer to act for him in any capacity he effectively con
sented to that lawyer representing him at trial and waived
any right to be represented by another lawyer.
Such a rule is contrary to all law and reason and improperly
limits a defendant's right to representation by counsel of
choice. This right includes the right to out-of-state counsel
30/
(recognized by the district court's own rules), particularly
in civil rights cases or cases involving unpopular causes or
defendants, Sanders v. Russell. 401 F.2d 241 (5th Cir. 1968).
This right to out-of-state counsel obviously depends on
reasonable rules regarding representation in pre-trial matters
, 31/by other lawyers, and reasonable local counsel requirements.
29/
12/ United States v. Bergamo. 154 F.2d 31 (3rd Cir. 1946)
(reversing conviction where court insisted that defendant be
represented at trial by attorney selected to serve in limited
capacity as local counsel rather than by out-of-state attorney);
United States v. Bradford. 238 F.2d 395 (2nd Cir. 1956)(dictum),
cert, denied. 352 U.S. 1002 (1957).
22/ Rule 6(b) of the General Rules of the Northern District of
specifically provides that lawyers not admitted to the
district bar "may upon motion be permitted to argue or try a
particular case in whole or in part."
22/ The clear implication of the district court's own rules
is that local counsel can be retained for the limited purposes
of filing papers, and accepting service. General Rule 6(a); 7(a).
36
In Sanders, supra, the court struck down a district court
rule restricting pro hac vice admission, holding that:
Any rule, whatever its source, that unneces
sarily restricts a litigant's choice of
counsel in civil rights litigation cannot be
sustained.^/ (401 F.2d at 246)
In denying Seale a continuance at the opening of trial,
and in subsequent disputes regarding Seale's right to repre
sentation, the court also relied on the fact that Kunstler
had filed an appearance. The record indicates that Seale
never agreed to representation at trial by Kunstler and that
he had never consulted with Kunstler regarding his defense.
Under these circumstances the mere fact that Kunstler filed
an appearance cannot justify denying a continuance, at least
in the absence of a factual hearing and a finding that
Seale's claims were in bad faith and he had agreed to be
32/ The court ruled that a trial court's determination that a
certain lawyer's participation in a given case
is unnecessary . . . simply is not and cannot
be a proper basis for exclusion in these cases.
The trial court cannot substitute its judgment
for that of the litigant in the choice or number
of counsel that the litigant may feel is required
to properly represent his interests. (401 F.2d
at 246)(emphasis added)
The Sanders court also found rules that local counsel actively
participate in trial representation and that every lawyer
allowing himself to be listed as counsel appear in person
"overly broad and thus invalid as applied to non-fee generating
civil rights cases." (401 F.2d at 248 and n. 10)
37
3_3_/
represented by Kunstler at trial despite Garry's absence.
In insisting that Seale be represented by the same counsel
I L . / In English v. State. 8 Md. App. 330, 259 A.2d 822 (1969),
defendant's retained counsel sent his son to represent defend
ant on the day of trial. The defendant moved for a continuance
which was denied when substitute counsel indicated he was pre
pared to handle the case. On appeal, the conviction was reversed.
Cases supporting denial of a continuance despite the
absence of one of a defendant's lawyers are distinguishable
since in all of them the defendant had expressly or implicitly
agreed to trial representation by the other attorneys. See,
e^., United States v. Cole. 365 F.2d 57 (7th Cir. 1966); Lias
— United States, 51 F.2d 215 (4th Cir. 1931); Franken v. United
States, 248 F.2d 789 (4th Cir. 1957); Marxuach v. United States,
398 F .2d 548 (1st Cir. 1968); Kobev v. United States. 208 F.2d
583 (9th Cir. 1953); Gilmore v. United States, 273 F.2d 79 (D.C. Cir. 1959). ~
Where defendants have been forced to trial with counsel
selected for some limited purpose, in the absence of trial
counsel of their choice, courts have reversed. See, e.g.,
Releford v. United States. 288 F.2d 298 (9th Cir. 1961);
Richardson v. State, 288 S.W. 2d 500 (Tex. Ct. Crim. Appeals
1956)* Long v. State, 119 G a . App. 82, 166 S.E. 2d 365 (1969);
People v. Crovedi, 53 Cal. Rptr. 284, 417 P.2d 868 (1966)
(conviction reversed where defendant's attorney fell ill in
midst of trial, and trial court granted two-week continuance
but then denied subsequent motion for month’s continuance,
forcing defendant to trial with ill lawyer's partner).
Indeed, courts have reversed even where defendants are
represented by counsel of their choice where the lawyer they
have selected as lead counsel is absent. See, e.g., Chivers
v. State. 5 Ga. App. 654, 63 S.E. 703 (1909):
The spirit of . . . [the constitutional right
to representation by counsel] entitles a man
charged with crime to the privilege and benefit
of counsel of his own selection, and this right
to selection must also extend to the right to
select the counsel who shall lead in the conduct
of his case. (63 S.E. at 705)
38
who represented his co-defendants, the trial court also
violated Seale's right to a lawyer with undivided loyalties,
contrary to Glasser v. United States, 315 U.S. 60 (1942).
There the Court reversed, holding that the appointment of
one defendant's attorney to represent his co-defendant, where
the latter objected and where there was a possible conflict 34/
of interest, was in violation of the Sixth Amendment. The
court further held that there was a presumption against waiver
of the right to representation by separate counsel and that the
ia/trial court therefore had a duty to inquire into the facts.
In conclusion it is clear that the court erred in refusing
to grant even a single continuance so that defendant could be
represented by his chosen counsel or, at least, so that he
26/could be allowed to select new counsel.
34/ Seale maintained throughout that one of the reasons he
wanted Garry was because of the persecution to which Black
Panther Party members had been subject, and their resulting
distrust of the entire judicial system including most lawyers.
As the only black among the defendants, and having specifically
objected to being represented by his co-defendants' lawyers,
Seale at least had a right to separate counsel.
15/ See also United States v. Gougis, 374 F.2d 758, 761 (7th
Cir. 1967); People v. Crovedi, 53 Cal. Rptr. 284, 290, 417
P.2d 868, 874 (1966). See generally 3 WRIGHT §737, pp. 225-26
and n. 93 (co-defendants may elect to have same lawyer but
record must show this was an informed decision, made after
appropriate advice of risks and right to representation by
separate counsel).
36/ See Releford v. United States, 288 F.2d 298, 302 (9th
Cir. 1961).
39
2. The Court Wrongfully Denied Seale The Right To
Represent Himself
Regardless of whether Seale had a right to be represented
by Garry, or some other lawyer of his choice, he at least had
a right to represent himself. This right is guaranteed by
-32 / aa_/statute, and has long been recognized by the courts. In
37 / 28 U.S.C. §1654 provides:
In all courts of the United States the
Patties may plead and conduct their own cases
personally or by counsel. . . .
And F.R. Crim. P.44 provides that the court shall advise a
defendant of his right to counsel and assign counsel "unless
he elects to proceed without counsel. . ."
25_/ While the rule would appear to have a constitutional founda
tion/ Adams v. United States, 317 U.S. 269, 279 (1942); Bayless v.
United States, 381 F.2d 67 (9th Cir. 1967); Joelich v. United States
342 F .2d 29, 32 (5th Cir. 1965); United States v. Plattner, 330
F.2d 271 (2nd Cir. 1964); United States v. Denno. 239 F. Supp.
851 (S.D. N.Y. 1965), aff'd, 348 F.2d 12 (2nd Cir. 1965), cert.
denied, 384 U.S. 1007, ( 1 9 6 6 ) some courts have found it
statutory in nature, Johnson v. United States, 318 F.2d 855
(8th Cir. 1963); Brown v. United States, 264 F .2d 363 (D.C. Cir.
1959). See generally and compare authorities cited in United
States v. Davis, 260 F. Supp. 1009 (E.D. Tenn.), aff'd. 365 F.2d 251
(6th Cir. 1966); and in Dearinger v. United States, 344 F . 2d
309, 311, n.2 (9th Cir. 1965). If the rule is constituionally
based, then the record should show affirmatively that the right
to represent oneself has been waived. Plattner, supra. Whereas
if it is only statutory the defendant might be required to
request the right to represent himself if he is later to claim
the right was denied. Brown, supra. Also, if the right is
constitutional there is no need to show prejudice. Dearinger,
supra; Plattner, supra; Denno,supra . Since Seale clearly
requested that right as soon as he could, and since there is
no question that Seale was prejudiced since he was in fact not
represented, there is no need to resolve here the issue of
whether the rule is constitutionally based.
40
Adams v. United States, 317 U.S. 269, 279 (1942), the Court
spoke of [t]he right to assistance of counsel and the correla
tive right to dispense with a lawyer's help. . . and in
Price v. Johnston, 334 U.S. 266, 285 (1948), it noted the
defendant's "recognized privilege of conducting his own defense
3 9/at the trial," stating that this right was unqualified.
Like the right to counsel of one's choice, a defendant's
right to represent himself can of course be waived either40/
expressly, or implicitly by, for example, agreeing to repre
sentation by counsel and failing to request the right to self-
41/
representation. Thus if a defendant elects to proceed with
3 9 _ / See generally Annot., Right of Defendant in Criminal Case
to Conduct Defense in Person, or to Participate With Counsel,
77 A .L .R .2d 1238 (1961). See also Sanchez v. United States,
311 F .2d 327, 332 (9th Cir. 1961); Butler v. United States, 317 F
249, 258 (8th Cir. 1963); United States v. Private Brands, Inc.,
250 F .2d 554, 557 (2nd Cir. 1957). ----
40 / Duke v. United States. 255 F.2d 721 (9th Cir. 1958)
—_/ See,e .g ., United States v. Private Brands, Inc., supra n . 3 9
(defendant had been represented for two weeks prior to trial
without objection despite two court appearances and continuances);
United States v. Gutterman. 147 F.2d 540 (2nd Cir. 1945) (after
jury sworn defendant asks dismissal of appointed attorney without
giving any good reason, and without asking to represent self
or to be represented by any other particular lawyer).
41
counsel at trial, he may be denied the right at an advanced
stage of proceedings to discharge counsel and defend himself
42 /
where delay would result and is the apparent purpose. But
the mere fact that a defendant has at some point agreed to be
represented by counsel does not defeat his claim to represent
himself. He has a right to fire his attorneys and take over
his own defense. Reynolds v. United States, 267 F.2d 235 (9th
Cir. 1959) .
Even where the defendant does not waive his right to self
representation, there may be circumstances where the interests
of justice require he be represented by an attorney. Thus a
court might find that a particular defendant is incompetent
43/
to represent himself. Or, a court might find in a joint
trial, that the interests of the other defendants would be
jeopardized by a particular defendant being allowed to repre
sent himself, and that severance is not practicable.
But the circumstances must be extreme in order to justify
42 / See Annot., supra n.39, pp. 1238-39 . See e.g.,
United States v. Birrell, 286 F.Supp. 885, 894-98 (S.D. N.Y.
1968) .
43 / See Annot., supra n.39 ; United States v. Birrell,
supra n. 42 ; United States v. Davis, 260 F. Supp. 1009
(E.D. Tenn. 1966), aff'd. 365 F.2d 251 (6th Cir. 1966).
42
denying a defendant's right to represent himself. Moreover,
the court has an obligation to explore alternatives which
might accommodate the defendant's wish to represent himself
45 /
with the legitimate needs of society.
44 /
44 / Thus, in United States v. Davis, supra n. 43, the court
denied the defendant's request to discharge his lawyer made on
the morning of trial, where the defendant never made a clear
request to defend himself, was of questionable mental competence
and incapable of representing himself, and would have disrupted
the trial, and where defendant suffered no prejudice because he was in fact represented.
45__/ in those cases where courts have found it necessary to deny
a defendant's right to pro se representation, a variety of
compromises have been worked out in an effort to accommodate the
interests of society without doing unnecessary violence to de
fendants' rights. See, e.g., Joelich v. United States. 342 F.2d
29, 32 (5th Cir. 1965) (defendant allowed to act as co—counsel
with lawyer); Davis, supra n. 43 (defendant allowed throughout
to make statements on his own behalf); United States v. Cantor.
217 F.2d 536 (2nd Cir. 1954) (defendant allowed to conduct his
own defense, supplemented by appointed attorney); People v .
Burson, 11 111. 2d 360, 143 N.E.2d 239 (1957) (noting court's
broad power to appoint counsel for advisory or other limited
purposes; Bayless v. United States. 381 F .2d 67 (9th Cir. 1967)
(defendant allowed to represent self and appointed counsel allowed
to participate only to extent defendant desired); United States
v_:— Maroney, 220 F. Supp. 801 (W.D. Pa. 1963) (where defendant
asked to represent himself, court appointed attorney to stand by
to assist him if necessary); Brown v. United States, 264 F.2d
363, 367, 369 (D.C. Cir. 1959) (Burger, J., concurring) (where
defendant seeks to represent self it might be appropriate in some
circumstances to appoint amicus curiae to assxst him.)
Similar compromises have been found in cases where courts
found it necessary to deny a defendant's right to a particular
lawyer of his choice. See, ê g_. , United States v. Cole. 365
F .2d 57, 62 (7th Cir. 1966) (defendant allowed to act as co-counsel
with lawyer); United States v. Mesarosh, 116 F. Supp. 345 (W.D.
Pa. 1953) (2 defendants allowed to close to jury and to explain
purpose of Communist Party).
43
The court below made no finding that Seale had effectively
waived his right to represent himself. Nor did it make or
allow any inquiry which could have resulted in such a finding.
Thus although it was made absolutely clear before any witness
was called that Seale wished to represent himself if he could
46__/
not be represented by Garry, the court never inquired into
the reasons for this request or allowed Seale to speak to 47__/
the issue. Instead the court rejected Seale's request solely
46— — / Thi-3 was clear from Seale's September 26 motion firing his
attorney and from his attempt that same day to present his own
opening statement. There can be no question that these actions
by a lay defendant constituted an adequately clear request for
the right to represent himself, particularly in light of the
court's refusal to let him speak at all. in United States v.
Plattner 330 F.2d 271, 276 (2nd Cir. 1964), the court pointed
out that however the defendant might phrase his request regarding
defense repro^ntntion, it was the court's obligation to explain
to the defendant that he had a choice between defense by a
lawyer and defense £ro se. in United States v. Abbamonte.
348 F.2d 700 (2nd Cir. 1965), the court noted that where de-
fendant tried to fire his attorney on the day of trial, the
court should have asked if he wanted to proceed pro se.
— ( when the court denied Seale's September 26 motion firing
is awyers, it specifically refused to allow him to speak. His
attempt that same day to present an opening statement was
denied and his protests silenced without inquiry. At the
September 30 in-chambers conference when the issue of Seale's
right to^represent himself arose, the court resolved it
_̂ n Seale's absence. Seale’s subsequent attempts to represent
himself were quashed with similar lack of ceremony. Only
with the filing of Seale's pro se motion October 20 did
the court allow any argument at all and it then refused
Seale s specific request for an inquiry into the relevant facts, (pp 22-2% supra)
44
because it was not made until after trial had commenced,
48 /
refusing to consider any other factual circumstance. The
court below thus ruled, in effect, that once trial begins
a defendant's right to represent himself expires, and that
thereafter the issue is entirely within the discretion of
the court which is under no obligation to inquire into
whether (1) the defendant has waived his right; (2) the
interests of justice require that he be represented; or
(3) even the reasons why a request for self-representation
may not have been made previously. This ruling is unsound
and contrary to applicable authority.
Where a defendant wishes to represent himself the court
must inquire into the factual circumstances of that request49 /
before it can be denied. The
48 / This was the only reason the court indicated during
the in-chambers September 30 discussion for its initial refusal,
and subsequently during the trial (pp. 24, 25, 26 n.21, supra).
October 20 the court denied Seale's pro se motion to represent
himself, on the sole ground that trial had begun and to permit
self-representation at that point would be disruptive
(pp. 27- 29, supra.)
49 / See generally United States v. Plattner, 330 F .2d at
276; supra n. 46 ) Brown v. United States, 264 F.2d 363, 367
(D.C. Cir. 1959) (Burger J., concurring); United States v .
Birrell, 286 F. Supp. 885, 890-94, (S.D. N.Y. 1968) (describing
the elaborate factual inquiries made by the trial court into
the issue of defendant's right to represent himself).
45
trial court at least had an obligation to inquire into
whether Seale had ever elected to be represented by a lawyer
other than Garry or whether he had waived that right and
opted for self-defense in the event of Garry's absence prior
to trial, since a defendant has a clear right initially to
elect whether to be represented by counsel or to represent
50 /
himself.
It is similarly clear that if the defendant has a right
to represent himself, that right does not cease to exist and
become instead a privilege subject to the whim and caprice
of the trial court solely because it is not voiced until
shortly after trial proceedings have formally commenced.
Some courts have, it is true, described the right to repre
sent oneself as "absolute" if voiced prior to trial and
51 /
"qualified" if voiced mid-trial. But there is no rationale
for any such rigid distinction, and the facts and reasoning
of these cases and other relevant authorities make clear
that the timing of a request is simply one circumstance relevant
to a determination whether the defendant has effectively
50 / See Dearinger v. United States, 344 F.2d 309, 311
(9th Cir. 1965) (issue is whether a voluntary and intelligent
election to be represented by counsel can be revoked); see
also Plattner and Abbamonte, supra, n.46.
51 / See e.g., United States v. Bentvena, 319 F.2d 916,
937-38 (2nd Cir.), cert, denied, 375 U.S. 940 (1963) ; United
States v. Dennis, 183 F.2d 201 (2nd Cir. 1950), aff1d on other
grounds, 341 U.S. 494; Butler v. United States, 317 F.2d 249, 257
(8th Cir.) , cert, denied, 375 U.S. 838 (1963) .
46
waived his right to represent himself and the interests
52 /
of justice dictate that he be represented; and that
inquiry is essential so that the various interests can
53 /
be weighed. Thus while the court below had a right to
5j-_/ See Note, The Right of an Accused to Proceed Without
Counsel, 49 MINN. L. REV. 1133 (1965). Thus, Sanchez v .
United States, 311 F.2d 327, 333 (9th Cir. 1962), held that
a defendant's request to represent himself could be denied
if made mid-trial, after a strong prosecution case had
been made, where the trial court found it "motivated by a
desire to disrupt the orderly conduct of the trial."
In Bentvena, supra n. 51 , the court upheld denial
to defendant of right to cross-examine witness where
defendant had been ably represented, without objection,
throughout prior trial proceedings. In Dennis, supra n.51,
the court upheld conviction when defendant's request to
sum up to jury was denied after nine months of trial during
which he had allowed lawyers to represent him and had been
disruptive. And in Butler supra n. 51, the court upheld
denying a defendant's request to represent himself when it
was first voiced in the third week of trial, defense
counsel was willing to and did continue effective representa
tion, and defendant's request was found not to be in good
faith.
53 / See United States v. Denno, 348 F.2d 12 (2nd Cir. 1965)
(dictum), affirming, 239 F.Supp. 851 (S.D. N.Y. 1965), cert.
denied, 384 U.S. 1007 (1966); United States v. Mitchell,
138 F.2d 831 (2nd Cir. 1943) (noting that when defendant
tried to dismiss attorney after first prosecution witness
sworn, the trial court should have inquired into the reasons
for wanting to proceed pro se; conviction upheld on grounds
of no prejudice); United States v. Birrell, described supra
n. 49; see also Plattner and Brown, supra n. 49.
47
consider the fact that trial had begun in determining whether
to allow Seale to represent himself, it had no right to deny
Seale's request without any further inquiry.
Moreover, the record reveals that Seale had a right to
represent himself under the circumstances of this case. First
Seale indicated his desire to represent himself at the earliest
possible moment. The fact that this was on the third day of
trial proceedings, after the jury had been selected, was in no
way Seale's fault and thus provides no evidence of waiver, since
Seale had been denied opportunity to speak regarding Garry's
absence on the first day of trial and since he had not dis
covered until after the close of the second day's proceedings
54/that Garry would definitely not be able to attend the trial.
Second, the prosecution presented no reason for denying this
claim. Indeed the prosecution did not even object initially —
rather it was the court that suggested Seale's request ought
be denied because it was made after commencement of trial
(P* 24, supra) . Third, there was no apparent reason to
deny Seale's claim to represent himself, if such a claim ever
ought be granted. It was initially raised not in the midst
54/ The record reveals that Seale was out of touch with
counsel while transferred to Chicago, (p. 21, supra) it is
therefore understandable that he would not have known until
trial started that Garry would definitely not be able
to represent him. Weinglass told the court on the first day
of proceedings, September 24, that Seale was without repre
sentation. Seale was denied any opportunity to speak regarding
his objections to Garry's absence that day. (pp. 21-22, supra)
48
of trial but before opening statements had been made or
55/
the first witness sworn. Since Seale never consulted with
any lawyer other than Garry regarding his defense, allowing
him to present his own defense would not have caused addi
tional delay for purposes of preparing a defense. Seale's
co-defendants had no objection to his presenting his own
defense but, rather, supported it throughout; therefore no
problem was presented regarding prejudice of their rights.
Finally, the record reveals beyond any doubt that disruption
was caused — rather than prevented — by denying Seale any
opportunity to represent himself.
B. THE COURT'S WRONGFUL DENIAL OF APPELLANT'S SIXTH AMENDMENT
RIGHTS REQUIRES REVERSAL OF HIS CONTEMPT CONVICTION.
Reversal of appellant's conviction is required because
the wrongful denial of the right to present a defense is so
fundamental that conduct stemming directly from that denial
cannot warrant such punishment. It is appellant's position
in Argument VI, infra pp.119-36, that since the contemptuous
acts charged involved no more than appellant's attempts to
present his Sixth Amendment claims, to preserve those claims
for appellate review and to present some defense on his own
behalf, they cannot constitute the substantive crime of contempt
56/
as defined in 18 U.S.C. §401. But appellant's convictions must
55/ Compare United States v. Denno, supra n. 53, finding
an absolute right to represent self where request voiced after case called.
.5.6/ Argument VI makes clear that 14 of the 16 allegedly contemptuous
incidents consisted of remarks by appellant that were necessary,
or that he at least reasonably believed necessary to preserve his
claims for appellate review (infra ppJ.19-29) and that the remaining
two incidents were wholly inconsequential (infra pp.H9-30) .
- 49 -
be reversed for the independent reason that they directly
resulted from the trial court's violation of his most
fundamental rights.
The right to present a defense to criminal charges,
either personally or through counsel of choice is the
most basic right afforded a criminal defendant, without
which all other guarantees concerning criminal proceedings
are meaningless since the defendant has no way to invoke
them. It was this most
50
fundamental of rights that appellant was denied. He was
ordered to sit through a trial conducted in the absence of
his chosen counsel, at which he was in fact not represented,
and was prohibited from speaking in his own behalf. Congress
surely cannot have intended to make the contempt power avail
able to preserve order, and especially to enforce the unlawful
limitations on appellant, during a proceeding so fundamentally
lacking in fairness. Compare Dancy v. United States, 361 F.2d
57/
75 (D.C. Cir. 1966).
57/ There a defendant who was erroneously denied counsel at
his preliminary hearing assaulted an officer who was testifying
against him. He was subsequently convicted of assault, but the
court of appeals reversed, reasoning:
It is contended by the United States that the
absence of counsel at the preliminary hearing
on the narcotic charges furnishes no ground
for reversal of the assault conviction. This
seems to amount to a contention, which we cannot
accept, that even if appellant were prejudiced
by denial of his statutory right there can be no
remedy. To borrow a maxim from the civil side of the
common law, where there is a wrong done, with
injury, there is a remedy. Appellant . . . became
engaged in an adversary proceeding in which the
law contemplated he could have professional assist
ance. This law was disregarded. It is probable
that had his right to assigned counsel been observed
the conduct which led to the charge of assault
would not have occurred. . . . The absence of
counsel . . . was . . . a factor which defendant
had a right to bring to the attention of the jury
in presenting the entire setting of his offense.
(361 F.2d at 78-79)
51
The court's error in denying appellant's right to be
represented by Garry requires reversal of the contempt
convictions for a second reason. The advice of counsel is
essential if an aggrieved defendant is to have any idea how
to conduct himself during a criminal trial. Only an attorney
can advise him as to the correctness of a court's orders, as
to when those orders should be obeyed, and the consequence of
disobedience, and as to when he should protest or accept court
and prosecution actions.
The Supreme Court has already recognized that the assistance
of counsel is necessary if a suspect or defendant is to intel
ligently decide whether to answer police questions, Miranda v.
Arizona, 384 U.S. 436 (1966), how to plead to a criminal charge,
White v. Maryland, 373 U.S. 59 (1963), what sort of defense to
offer at a criminal trial, Gideon v. Wainwright, 372 U.S. 335
(1963), and what sort of argument to present at a sentencing
5 7 A/hearing, Mempa v. Rhay, 389 U.S. 128 (1967). Any action taken
by an unrepresented defendant at such "critical" decision
making stages cannot be held or used against him. Certainly
a defendant's decisions as to whether to make a motion or
objection at trial and as to the language and manner of so
doing, are as "critical" and as legally complex as those
involved in Miranda, White, Gideon, and Mempa, not only because
the decisions may affect the outcome of the particular pro
ceeding, but because they may, if badly or untimely made, lead
57A/ We also direct the Court's attention to the Supreme Court's
decision in Coleman v. Alabama, 38 U.S.L.Wk. 4535 (1970), announced
52
to criminal contempt charges. Moreover, in this case the
trial judge failed to fulfill a court1s special responsi
bility to explain to an uncounselled defendant callsd upon
to make significant decisions, the alternatives open to him
snd their legal ramifications. Under these circumstances,
the erroneous denial of appellant's chosen counsel constitutes
a defense to the contempt charges arising out of his vain
attempts to protect his rights during trial.
57A/ (Continued)
June 22, two days before this brief was filed, reversing a con
viction on the ground that the defendant was not represented by
counsel at his preliminary hearing, and detailing the assistance
and protection which an accused would receive from "the guiding
hand of counsel" at such a hearing.
53
II
IN IMPOSING AN AGGREGATE SENTENCE OF FOUR
YEARS FOR CRIMINAL CONTEMPT WITHOUT ACCORD
ING APPELLANT A JURY TRIAL, THE COURT BELOW
VIOLATED HIS RIGHTS AS DEFINED IN BLOOM V.
ILLINOIS, 391 U.S. 194 (1968), AND CHEFF V.
SCHNACKENBERG, 384 U.S. 373 (1966).
A. ASSUMING THAT 16 SEPARATE CONTEMPTS WERE COMMITTED,
THE COURT ERRED IN IMPOSING AN AGGREGATE SENTENCE
IN EXCESS OF SIX MONTHS WITHOUT ACCORDING APPELLANT A JURY TRIAL.
Appellant was summarily convicted of 16 different con
temptuous acts, and sentenced to three months on each, the
terms to be served consecutively and thus amounting to an
aggregate sentence of four years. In Cheff v, Schnackenberg,
supra, the Supreme Court ruled, exercising its supervisory
power over the federal courts, that a jury trial was required
in all contempt cases resulting in sentences in excess of
six months. Bloom v. Illinois, supra, found the same rule
applicable to state contempt proceedings by virtue of the
jury trial provisions of the federal Constitution, regardless
58_/
of whether the contempt was classified as direct or indirect.
j58/ The court noted that direct contempts were ordinarily
dealt with summarily but, while recognizing "a strong temp
tation to make exception for the rule we establish today for
disorders in the courtroom . . .," found that "no such special
rule is needed" (391 U.S. at 210).
54
The district court's action presents the question whether
a court can, in one proceeding, by charging a contemnor with
a multiplicity of separate "acts" of contempt and sentencing
him separately on each act, give him a potentially infinite
sentence without benefit of jury trial. Appellant submits
that such power is in clear violation of the spirit and phi
losophy of Cheff and Bloom, supra.
Summary punishment for contempt in the federal system
represents an extraordinary concentration of despotic power
in one individual . The trial judge
decides what constitutes a crime, since contempt is legisla-
■ , • 52/tively defined only in the vaguest and broadest terms;
what the penalty shall be without any legislative limits;
whether to prosecute and on what charges. He acts as prose
cutor, judge and jury at a "trial" conducted in the absence
of procedures designed to control the exercise of arbitrary
power by such officials. His decisions are subject only to
a necessarily incomplete appellate review since in summary
proceedings the trial judge relies heavily on his own
59/ 18 U.S.C. § 401(1) penalizes "misbehavior of any person
in . . . [a court's] presence or so near thereto as to obstruct
the administration of justice." See generally GOLDFARB, The
Contempt Power (1963) pp. 67-70.
55
impressions of the contemnor's conduct.
It was in recognition of the extraordinary potential
for abuse suggested by such a regime that the Supreme Court
in Bloom overruled its earlier decision in Green v. United
States, 356 U.S. 165 (1958), and provided that the summary
contempt power could be exercised only to impose a penalty
up to a maximum of six months. Where the penalty exceeded
six months the Court found it essential to provide "a right
to jury trial as a protection against the arbitrary exercise
of official power" (391 U.S. at 202). Since Bloom's concern
was with placing some limits on the power of the trial judge
over contemnors, it is clear that a jury must be provided as
a buffer between judge and contemnor where the latter is
threatened with a four-year term of imprisonment, regardless
of whether that term constitutes an aggregate of lesser terms.
Indeed Bloom was based in part on explicit recognition of a
60/trend toward increasingly severe sentences in contempt cases,
60/ The court specifically noted that convictions for criminal
contempt have frequently and increasingly resulted in extremely
serious penalties, citing Mr. Justice Goldberg's dissenting
opinion in United States v. Barnett. 376 U.S. 681, 728, 751
(1964), and Note, 1967 DUKE L. J., 632, 640-41.
Despite this trend toward increasingly severe sentences
in contempt cases, the sentence imposed on appellant in the
instant case is of almost unique severity. By far the longest
sentence noted by authorities commenting on the increased
severity in criminal contempt sentencing is the four-year
56
and designed to avoid the danger of imposition of such sen
tences without jury trial.
It is only if the aggregate sentence is considered
determinative of the right to jury trial that the Bloom
ruling places any realistic limits on the summary contempt
power. The "crime" of contempt is so vague that as a prac
tical matter a court may endlessly multiply the number of
acts of contempt that have been committed (unless, of course,
60/ (Cont'd)
sentence upheld in United States v. Thompson, 214 F.2d 545
(2d Cir.), cert, denied, 348 U.S. 41 (1954). See, e.g. , Note,
1967 DUKE L. J., 632, 641 n. 44; Note, Procedures for Trying
Contempts in the Federal Courts. 73 HARV. L. REV. 353, 357
(1959); Justice Goldberg's dissent in Barnett, supra, 376
U.S. at 752-53 n. 35.
Apart from the 4-year 13-day sentence subsequently
imposed on attorney Kunstler in the same trial out of which
appellant's contempt convictions arose, the only criminal
contempt cases appellant's attorneys have found, in an ex
haustive review, in which the sentences for contempt exceeded
appellant's, involved one Mayberry whose sentences were
affirmed by the Supreme Court of Pennsylvania. Commonwealth
v » Langnes, 434 Pa. 478, 255 A.2d 131 (1969) , cert. granted
sub nom. Mayberry v. Pennsylvania, April 6, 1970, No. 1389,
upheld Mayberry's aggregate 11-22 year sentence for contemp
tuous conduct. Commonwealth v. Mayberry, 255 A.2d 548 (Pa.
Sup. Ct. 1969), upheld Mayberry's 5-year aggregate sentence
for contemptuous conduct in another court proceeding. (In
both cases the court relied on DeStefano v. Woods. 392 U.S.
631 (1968), in not applying Bloom retroactively.) These
cases, while completely out of line with sentencing practice
in criminal contempt cases, illustrate the danger inherent in
the practice of the court below.
57
the crime of contempt is defined as the entire course of
trial misconduct, as appellant urges in Argument IC, infra,
that it should be). If a court can add a six-month sentence
for each act of contempt without providing a jury trial there
61/is no practical limit on its power to punish. It is
significant that the trial court imposed identical three-
month sentences for sixteen incidents involving extremely
62/
varied conduct. This supports a conclusion that the citation
of particular incidents was a relatively arbitrary means of
arriving at a lengthy aggregate sentence.
Bloom could not have contemplated the kind of nullifica
tion of its ruling represented by the decision below. It was
written in the context of a tradition of imposing a general
sentence for contempt even where numerous contemptuous acts 63/
were cited;
61/ Past cases demonstrate the potential for abuse of such a
doctrine, by showing the ease with which separate acts of con
tempt may be enumerated. Thus in Sacher v. United States, 343
U.S. 1 (1952), the contempt citation contained 40 separate
specifications of direct contempt. One of the contemnors was
charged with 23 separate contemptuous acts and another with 18.
(See Appendix at 182 F.2d 416, 430-53). In Offutt v. United
States, 348 U.S. 11 (1954), the defendant was cited for 12
different acts of direct contempt. See also Commonwealth v.
Langnes, supra n. 60.
62̂ / The incidents differ as to length, type of language used,
whether the jury was present at all during the incident, and
whether the jury, if present, was excused because of the incident.
63/ See, e.g., Offutt v. United States. 208 F.2d 842, 843-44
(D.C. Cir. 1953) , rev1d , 348 U.S. 11 (1954) ; United States v.
Galante, 2 98 F.2d 72 (2nd Cir. 1962). ------------ -----
58
or, alternatively, imposing concurrent sentences for separate
64/
contempt convictions. Thus the Bloom Court,which apparently
assumed direct contempt at least would be subjected only to
65/
minor penalties (and thus not ordinarily require jury trial),
could not have contemplated that courts would attempt to
impose consecutive, separate sentences for individual acts of
contempt in the course of a trial without providing a jury.
While there appears to be no case dealing with the issue
as to whether the rule of Bloom can be avoided by adding
separate sentences even where the aggregate sentence exceeds
six months, analogous authority outside the contempt area
supports appellant's position. State v. Owens, 54 N.J. 153,
254 A.2d 97 (1969), involved the issue of whether a jury trial
was required when three petty offenses were tried together
even though it would not be required for any of the offenses
alone. The court held that " . . . when, as here, the several
petty offenses are factually related and arise out of a single
64J See, e ,g ., Yates v. United States, 227 F.2d 848 (9th Cir.
1955); Parmelee Transportation Co. v. Keeshin, 292 F.2d 806
(7th Cir. 1961); 294 F.2d 310 (7th Cir. 1961), rev'd on other
grounds, sub nom. In re McConnell, 370 U.S. 230 (1962).
65/ 391 U.S. at 210. As noted supra n. 60, the sentence
imposed by the court below is of almost unique severity in the
history of criminal contempt. The traditional penalty for
direct contempt summarily adjudged, has always been a petty
fine or, at most, a few days imprisonment (infra, p. 173 n. 254;
Note, 63 MICH. L. REV. 700 (1965)), and the trend toward in
creasingly harsh penalties has taken place primarily in the
area of indirect contempt. See, e.g., 1967 DUKE L. J., 632,
648 n. 64.
59
event . . .," then either a jury trial must be accorded or
the aggregate sentence may not exceed that authorized for a
petty offense. (254 A.2d at 102) Owens relied on James v.
Headley, 410 F.2d 325, at 327, n. 329 (5th Cir. 1969),
holding potential maximum sentences of charges tried together
must be aggregated for purposes of determining whether the
66/
defendant is entitled to counsel. Owens also relied on
federal cases holding that where the right to appeal in a
criminal case turns on the penalty imposed, and several
charges are joined in one case, the aggregate penalty is deter-
67/
minative at least where the charges are factually related. Appellate
66/ "Assuming . . . that the length of punishment is a rele
vant factor in determining the right to counsel, it is a false
measure to weigh only the largest of its component parts. If
a guilty person is convicted, the sum of the potential
penalties is what is important to him — and to society."
(410 F .2d at 329) See also Bohr v. Purdy, 412 F.2d 321 (5th
Cir. 1969); Steadman v. Duff, 302 F. Supp. 313 (1969); State
v. Lucas, 24 Wis. 2d 82, 128 N.W. 2d 422 (1964); and In re
Johnson, 62 Cal. 2d 325; 398 P.2d 420 (1965), where in finding
a right to counsel the courts also looked to the aggregate
penalties of combined charges.
67/ See Chambers v. District of Columbia, 194 F.2d 336 (D.C.
Cir. 1952); O'Bryant v. District of Columbia, 223 A.2d 799
(D.C. Mun. Ct. App. 1966). In 0 1 Bryant the court stated:
[W]hen several offenses, closely related in
both nature and time, are prosecuted in one
trial — whether they are charged in separate
informations or as separate counts in one
information -- the total of the fines imposed
is the amount which determines the right of
appeal. . . . " (223 A.2d at 801)
60
review, like jury trial, constitutes a means of limiting the
power of one man, the trial judge, over a criminal defendant.
The reasons for looking to the aggregate penalty in
determining the procedural protections, such as right to jury
trial, to be accorded a defendant are of course particularly
compelling in contempt proceedings where the defendant is not
protected by the traditional buffers standing between him and
the exercise of arbitrary power, such as legislative defini
tion of the crime and limitation on the penalty. (See
generally supra, pp. 55-56.)
Requiring jury trial whenever the aggregate penalty ex
ceeds six months leaves ample power to deal with the problem
of repeated, serious misconduct at trial. Courts have the
alternatives of conducting a summary proceeding and imposing
68/ Should this Court remand for further proceedings, we
point out that they would be governed by F.R. Crim. P. 42(b),
which provides for the disqualification of the trial judge
"[i]f the contempt charged involves disrespect to or criticism
of" him, as clearly the contempts charged in the instant case
do (see, infra pp. 79-84 and n. 103). Disqualification would also
be required because the trial judge h s already decided
appellant is guilty and a four-year sentence warranted. See,
e .g ., United States v. Barnett, 346 F.2d 99, 101 (5th Cir.
1965); 330 F.2d 369, 419-21 (5th Cir. 1963) (Jones concurring);
cf. Juelich v. United States, 214 F.2d 950, 955-56 (5th Cir.
1954); Reynolds v. United States, 98 U.S. 145 (1879); Holt v.
United States, 218 U.S. 245 (1910).
In some cases Bloom violations have been remedied by
reducing the contemnor's sentence to six months. See, e .q .,
United States v. Harris, 367 F.2d 826 (2nd Cir. 1966).
61
up to a maximum six-month sentence at any time that such mis
conduct seriously disrupts the administration of justice; or,
where a more serious sentence appears warranted, of setting
the case down for hearing, with a jury. And, of course, courts
have at their disposal a variety of powerful remedies other
69/
than criminal contempt.
B. THE COURT ERRED IN PROCEEDING AGAINST APPELLANT ON
SERIOUS CRIMINAL CONTEMPT CHARGES WITHOUT ACCORDING
HIM A JURY TRIAL.
In Bloom v. Illinois, supra, the Supreme Court found
serious criminal contempt charges indistinguishable from other
serious criminal charges in determining the right to trial by
jury. Wholly apart from the aggregate term imposed, discussed
in II A, supra, there can be no question that the contempt
charges in the instant case were serious, and therefore that
a jury trial was mandated.
The right to jury trial has traditionally turned on the
seriousness of the charges; and seriousness has been defined in
terms of the nature of the crime and the consequences of con
viction, involving such factors as the stigma attached to
6 9/ See Illinois v. Allen, ___ U.S.-- ,38 U.S.L. Wk. 4247
(March 31, 1970), upholding courts' power to deal with seriously
disruptive misconduct by removal of the defendant, binding and
gagging, or imprisonment for civil contempt.
62
Certainlyconviction and the type of punishment involved,
the actual or potential sentence has always been considered
one indication of the seriousness of the crime and can in
itself define the crime as sufficiently serious to mandate
UJjury trial. But it is also clear that sentence has been
72 /
traditionally considered only one indication of seriousness,
70 /
70/ See generally Frankfurter & Corcoran, Petty Federal
Offenses and the Constitutional Guarantee of Trial by Jury,
39 HARV. L. REV. 917, 980-81 (1926):
Broadly speaking, acts were dealt with sum
marily which did not offend too deeply the
moral purposes of the community, which were
not too close to society's danger and were
stigmatized by punishment relatively light.
7_1/ See Bloom and Cheff, supra; Duncan v. Louisiana, 391
U. S. 145 (1968).
72 / See, e .g ., Duncan v. Louisiana, 391 U.S. at 159:
"Crimes carrying possible penalties up to
six months do not require a jury trial if
they otherwise qualify as petty offenses. . . . "
" [The penalty authorized] is of major rele
vance in determining whether it is serious
or not and may in itself, if severe enough,
subject the trial to the mandates of the
Sixth Amendment." (emphasis added)
See also. District of Columbia v. Clawans, 300 U.S. 617 (1937).
Other traditional tests for seriousness have been whether it
was an offense indictable at common law (District of Columbia
V. Colts, 282 U.S. 63, 73 (1930) ; Callan v. Wilson, 127 U.S.
540, 554-57 (1888)), or an offense that is malum in se (District
of Columbia v. Colts, supra; Cheff, supra, 384 U.S. at 387-90
(dissenting opinion of Mr. Justice Douglas); Frankfurter and
Corcoran, Petty Federal Offenses and the Constitutional
Guaranty of Trial by Jury. 39 HARV. L. REV. 917, 980 (1926)).
See also Baldwin v. New York, 38 U.S.L.Wk. 4554, 4555 n.6,
4556 (1970), decided by the Supreme Court June 22, two days before
this Brief was filed.
63
and that a crime may be serious and require jury trial even
73/
where the potential or actual sentence is petty. While
the Supreme Court found in Cheff and Bloom that criminal con
tempt was not necessarily a serious crime, apart from the sen
tence imposed, it would appear that certain contempts can and
should be treated as serious even where sentences under six
months are imposed.
In the instant case there can be no question that appellant
was charged with serious crimes. Sixteen different contemp
tuous acts were charged, each of which allegedly "constituted
a deliberate and willful attack upon the administration of
justice in an attempt to sabotage the functioning of the
federal judicial system." He was accused of misconduct "of
so grave a character as to continually disrupt the orderly
administration of justice." (TR 5411, 5410) It is clear from
the trial judge's reaction throughout trial, from his charges
and from the extraordinary four-year term ultimately imposed,
73/ See District of Columbia v. Colts, supra, 282 U.S. at 73,
holding a jury trial required where the offense — reckless
driving — involved a maximum penalty of $100 and 30 days:
Whether a given offense is to be classed
as a crime, so as to require a jury trial,
or as a petty offense, triable summarily
without a jury, depends primarily upon the
nature of the offense. The offense here
charged is not merely malum prohibitum,
but in its very nature is malum in se.
64
■that he felt appellant was guilty not merely of disobedience
or breaches of decorum but of a virtual assault upon the
entire administration of justice. Under traditional tests,
74/this charge cannot be classified as a petty offense.
C . APPELLANT'S CONDUCT CONSTITUTED AT MOST A SINGLE
CONTEMPT AND THE COURT BELOW THUS ERRED IN
IMPOSING A SENTENCE IN EXCESS OF SIX MONTHS
WITHOUT ACCORDING APPELLANT A JURY TRIAL.
The vitality of Bloom can be preserved and the constitu
tional issues discussed above avoided if this Court determines
that appellant's conduct constituted at most a single con
tempt, since there would then be no question but that appel
lant was entitled to a jury trial. Whether appellant's con
duct, assuming it was all contemptuous, constituted sixteen
crimes or only a single offense is a question of statutory
construction, Ladner v. United States, 358 U.S. 169, 173
(1958), and a trial court cannot alter the substance of a con-
temnor's action by merely describing it as one or several
2 A / See Callan v. Wilson. 127 U.S. 540, 555 (1888), holding
that a conspiracy cannot be considered petty. The common law
"petty offenses" were of a nuisance nature and did not involve
serious immorality. Classic instances were disorderliness,
drunkenness, vagrancy and violations of health, safety, trade,
fish and game regulations. See IV BLACKSTONE, COMMENTARIES
279, 281; 3 STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND
264-65; Frankfurter and Corcoran, supra n. 70, 39 HARV. L.
REV. at 983-1019. In every case in which the Supreme Court has
held an offense to be triable without a jury in a federal court,
it has emphasized the lack of serious immorality associated with
the offense. E.g., District of Columbia v. Clawans. 300 U.S.
65
Z5/
contempts. In order to decide how many different contempts,
if any, appellant committed, this Court must determine what is
the "allowable unit of prosecution" under 18 U.S.C. § 401(1),
Bell v. United States, 349 U.S. 81 (1955) — the facts which,
if proven, constitute a single crime. When a series of acts
constitute but a single unit of prosecution, even though each
one of those acts occurring by itself would have constituted
a complete unit of prosecution, that series of acts is denoted76/
a "continuing offense."
74/ (Cont'd)
617, 625 (1937) (selling unused railway tickets without a
license; "its moral quality is relatively inoffensive");
Schick v. United States, 195 U.S. 65 (1904) (sale of unstamped
oleomargarine; an offense "not necessarily involving any
moral deliquency").
75/ Thus the federal courts have repeatedly reversed multiple
penalties imposed for an act or series of acts which constituted
but a single offense. See, e .g ., Heflin v. United States, 358
U.S. 415 (1959); Bell v. United States, 349 U.S. 81 (1955).
76/ There are many such continuing offenses in federal law:
assaulting two federal officers with a single shot (18 U.S.C.
§ 254, Ladner v. United States, supra); willfully remaining in
the United States after one's alien permit expires (18 U.S.C.
§1282(c), United States v. Cores, 356 U.S. 405 (1958)); trans
porting several women across state line in a single car for
immoral purposes (18 U.S.C. § 2421, Bell v. United States,
supra); violating a provision of the Fair Labor Standards Act
with regard to half dozen different employees (29 U.S.C. §§
215, 216(a), United States v. Universal C.I.T. Credit Corp.,
344 U.S. 218 (1952)); one conspiracy to commit several crimes
(18 U.S.C. § 88, Braverman v. United States, 317 U.S. 49
(1942)); transporting goods across several state lines at an
illegally low rate. (49 U.S.C. § 411, United States v. Midstate
Horticultural Company, Inc.. 306 U.S. 161 (1939)); several
66
A statute may define a continuing offense although words such
77/
as "course of conduct" do not appear in the provision.
Such a single continuing offense may be involved even though
the various component acts were charged as separate counts and
78/were subject to proof by different facts.
Appellant maintains that the appropriate unit of prosecu
tion for a direct contempt under § 401(1) is the entire course
of a contemnor's conduct during a trial. This interpretation
of § 401(1) is supported by (a) the statutory language, (b) the
legislative history and the purpose of the statute, (c) the
need to prohibit improper multiplication of offenses by
76/ (Cont'd)
fraudulent entries in a bank book to conceal a single embezzle
ment (12 U.S.C. § 592, United States v. Adams, 281 U.S. 202
(1930)); illegally cohabiting with more than one woman over a
three year period (22 Stat. 3, Ex parte Snow. 120 U.S. 274
(1887)). See also United States v. Johnson, 323 U.S. 273,
281-82 (1944) (use of the mails for a particular illegal pur
pose) ; Dunn v. United States. 284 U.S. 390, 397 (1932)
(maintaining a nuisance).
Where a defendant guilty of only one continuing crime
has been mistakenly convicted of several offenses, all but
the first conviction must be reversed. See, e.g., Yates v.
United States. 355 U.S. 66 (1957).
ZZ/ See United States v. Universal C.I.T. Credit Corp.,
supra, 344 U.S. at 277.
Z8/ United States v. Empsak. 95 F. Supp. 1012 (D. Del. 1951).
67
the prosecution or the trial court, (d) the policy of lenity
applied in interpreting criminal statutes, (e) the incongruous
results which would follow from any other unit of prosecution,
and (f) the previous applications of § 401(1). These various
considerations are discussed separately; their effect, of
course, is cumulative.
(a) Statutory Language. Section 401(1) penalizes "[m]is-
behavior of any person in [a court's] presence or so near
thereto as to obstruct the administration of justice." The
79/
term "misbehavior" is a "collective noun," and has no plural.
"Misbehavior" depicts a course of misconduct or a series of
incidents, rather than an individual contemptuous act.
Had Congress desired to make each contemptuous act a
separate and complete crime, it would presumably have done so
80/
clearly and explicitly by making punishable, for example,
"every act interrupting or tending to interrupt" a court pro-
~5T7
ceeding, or by making punishable a number of specific actions,
such as interrupting the judge, refusing to stand when the
judge enters and leaves the courtroom, or assaulting any person
_7j9/ See Webster's New International Dictionary, 2d ed. p. 525.
80/ Bell v. United States, supra, 349 U.S. at 83; Ladner v.
United States, supra, 358 U.S. at 178.
81/ See La. Rev. Stat. § 15:11 (emphasis added).
68
in the courtroom.
(b) Legislative History and Purpose. It is clear that
when § 401 was first enacted in 1831, it was intended to work
a "drastic curtailment of the contempt power as it had thereto
fore existed." Bloom v. Illinois, supra, 361 U.S. at 203. A
construction which fixes the entire course of trial misconduct
as the unit of prosecution clearly effectuates this policy.
Secondly, the contempt power as defined in § 401(1) was not
intended to protect the sensibilities of judges or parties from
every harsh or unkind remark, nor to impose vengeance for
insults (Brown v. United States, 356 U.S. 148, 153, 161 (1958)),
but rather to punish serious obstructions. Thus the concern
of § 401(1) is with the adverse impact of misbehavior on the
83/
trial as a whole.
82/
82/ Compare Blockburger v. United States, 284 U.S. 299, 302,
(1932) (successive sales of morphine two crimes because the
statute prohibits any sale in the absence of certain require
ments, rather than forbidding engaging in the business of sell
ing illegal drugs)? Clark v. District Court, 125 N.W. 2d 264
(Iowa 1963) (seven violations of an injunction seven different
offenses because the injunction prohibited specific acts such
as the fitting of dentures, rather than barring in general
terms the practice of dentistry).
83/ Compare Ladner v. United States, supra, 358 U.S. at 175-76;
Bell v. United States, supra, 349 U.S. at 83, 84. In Ladner
the court concluded that the purpose of the statute barring
assaults on federal officers was to assure the carrying out of
official tasks, rather than the protection of federal officials,
and thus held that only one crime was committed when two
officials were wounded with a single shot. In Bell the court
reasoned that the concern of the Mann Act was the use of inter
state commerce for immoral purposes, not safeguarding the
69
Section 401, moreover, fixes no specific penalty, and
provides no standard for assessing punishment other than the
magnitude of the adverse impact of the misconduct on the trial.
The relevance of any particular contemptuous incident can
only be evaluated in the context of the entire trial. And to
try to assign to each contemptuous act, with the precision
needed in allocating jail terms, a portion of the total dis
ruption or prejudice caused by a contemnor would be an impos
sible task.
(c) Improper Multiplication of Offenses. Unless the
entire trial is the appropriate unit of prosecution under
§ 401(1), the vaguely worded statute will give no guidance
whatsoever in determining how many contempts have been com
mitted in an extended course of misconduct. A given court
might punish as distinct offenses each disruptive action
separated from another by a warning from the bench, or by a
short or lengthy period of calm, or each incident unless it
is somehow related in purpose, style or effect to other
incidents, or each sentence, word, paragraph or movement which
83/ (Cont'd)
virtue of individual women, and thus concluded the defendant
had committed only one offense when he transported two women
across a state line at the same time.
70
disrupted the administration of justice. Without a precise
definition of the appropriate unit of prosecution, the number
of offenses committed will turn solely on the "ingenuity and
whim” of the prosecutor and the trial court, an entirely
impermissible result, particularly in an area where judges are
likely to become emotionally involved. People v. Riela, 200
N.Y.S. 2d 43, 46, 7 N.Y. 2d 571, 166 N.E. 2d 840 (1960), cert.
denied, 364 U.S. 474 (1960); Yates v. United States, 355 U.S.
85/
66 (1957); Ex parte Snow, 120 U.S. 274, 282 (1887).
(d) The Policy of Lenity. Even were the appropriate
unit of prosecution not apparent on the face of § 401(1), this
Court would nonetheless be compelled to conclude that the
appropriate unit for direct contempt is the entire course of
trial conduct. When a penal statute allows of several possible
84/
84/ The absence of a clear unit of prosecution has wrought
utter confusion in the state courts with regard to the use of
contempt to punish violations of injunctions. E .g., compare
State v. King, 47 La. Ann. 701, 17 So. 288, (1895) with
Hickinbotham v. Williams, 228 Ark. 46, 305 S.W. 2d 841 (1957);
compare State v. Frontier Airlines, Inc., 174 Neb. 172, 116
N.W. 2d 281, (1962) with Solano Acquatic Club v. Superior
Court, 131 P. 874 (Cal. 1913) .
85/ The appropriate unit of prosecution fixed for § 401(1)
would presumably apply to the similarly worded provisions deal
ing with direct contempt of military tribunals. 10 U.S.C.
§ 848, 22 U.S.C. § 703. If the unit of prosecution is not
fixed as the entire trial, the maximum penalties established
by those two provisions will be virtually meaningless. See
United States v. Empsak, supra; State v. King, 47 La. Ann.
701, 17 So. 288 (1895); Maxwell v. Rives, 11 Nev. 213, 221
(1876) .
71
the federal courts traditionally apply what
rule of lenity" and adopt the least harsh
This policy is particularly applicable in
a defendant may be charged with and convicted
87/
of multiple violations of the same statute.
This policy of lenity is best effectuated under § 401(1)
by treating several contemptuous incidents during one trial
as a single contempt, since this interpretation of § 401(1)
materially increases the likelihood that contemnors will
interpretations,
is known as "the
86/
construction.
deciding whether
86/ See e.g., Heflin v. United States, supra, 358 U.S. at
419, where the court held that a bank robber coula not be
prosecuted for possession of stolen money as well as for the
theft itself, explaining: "[W]e resolve an ambiguity [in the
statutes] in favor of lenity when required to determine the
intent of Congress in punishing multiple aspects of the same
criminal acts." See also Prince v. United States, 352 U.S.
322 (1957).
87/ Gore v. United States, 357 U.S. 386, 391 (1958). In
Lidner, supra, the Supreme Court held that: [T]he policy of
lenity means that the court will not interpret a federal
criminal statute so as to increase the penalty that it places
on any individual when such an interpretation can be based on
no more than a guess as to what Congress intended 358 U.S.
at 179 In United States v. Universal C.I.T_.— Credit,. Corp_̂ ,
supra,"344 U.S. at 222, the Court held that an employer^who
pays” less than the minimum wage is guilty of but a single
crime although he may underpay many employees, explaining
" rwihen choice has to be made between two readings of what
conduct Congress has made a crime, it is appropriate, before
we choose the harsher alternative, to require that Congress
have spoken in language that is clear and definite. See
also Bell v. United States, supra. For applications of
similar state policies of lenity to contempt cases see
People ex rel. Amarante v. McDonnell, 100 N.Y.S. 2d 463, 467
(1950); Maxwell v. Rives, supra, 11 Nev. at 221.
72
receive the protection of a jury trial, by preventing trial
courts from splitting lengthy jail terms into a number of
short consecutive sentences. The policy thus preserved is
particularly appropriate here because a right of constitutional
proportion is involved.
(e) Incongruous Applications. If the course of trial
conduct is not accepted as the unit of prosecution, incongruous
results are bound to occur in the application of direct con
tempt statutes. The right to jury trial established by Bloom
is to be afforded in the more serious cases of contempt. But
if the unit of prosecution is not the whole trial, an extended
course of contempt may not be subject to a jury trial require
ment, while a single outburst, less disruptive in its total
effect, may require such a jury trial. The opposite sort of
incongruity is possible with regard to sentencing. The more
legally distinct crimes committed, the greater the total sen
tence a trial court is likely to impose in a § 401(1) case.
Yates v. United States, supra. Yet the fact that the contemp
tuous conduct occurred in a single outburst is not a guarantee
that it was less disruptive than a number of incidents spread
throughout the course of a lengthy trial.
(f) Previous Practice. While the courts have not hereto
fore explicitly considered what the appropriate unit of prosecu
tion is under § 401(1), the interpretation of that provision
73
advanced by appellant is supported by the general practice of
the federal courts in dealing with contempts. Multiple inci
dents of contempt at a single trial have generally been treated
88/
as but a single crime. in the few cases where the conduct
has been divided into counts, this has been done to facilitate
appellate review and the penalties imposed were usuallv con—89/
current. Moreover, in applying the rule that a single con-
22/tempt cannot be penalized by both fine and imprisonment the
federal courts appear to have assumed that a single trial can
21/give rise to but one direct contempt. Both federal and
22/ See, e .g ., In re Osborne, 344 F.2d 611 (9th Cir. 1965)
("numerous" contempts); United States v. Schiffer. 351 F.2d 91
(6th Cir. 1965) (seventeen contemptuous acts); Tauber v.
Gordon, 350 F .2d 843 (3d Cir. 1965) (continuous contemptuous
comments); Shibley v. United States, 236 F.2d 238 (9th Cir.
1956) ("many" contemptuous acts); Offutt v. United States, 145
F. Supp. Ill (D. D.C. 1956) (44 contemptuous incidents).
8_9/ See, supra p. 59, n. 64. A number of decisions
applying similar state contempt statutes have stressed that
only one trial was involved in holding that a series of con
temptuous acts constituted but one contempt. See e.g., State
v. Grey, 225 La. 38, 72 So. 2d 3, 6, (1954); Gautreaux v.
Gautreaux, 220 La. 564, 57 So. 2d 188, 191, (1952) .
9 0 / Carter v. United States. 135 F .2d 858 (5th Cir. 1943).
9 1 / See, e.g., In re Osborne, .supra (fine and jail term
improper although the defendant was guilty of three types of
contempt involving at least 10 incidents); Shoemaker v. K-
Mar_t, 294 F. Supp. 260 (E.D. Tenn. 1968) (only jail or fine
will be proper in forthcoming contempt hearing, although
court order that witness not discuss case with plaintiff may
have been violated several times). See also International
Bro. of Teamsters, etc, v. United States. 275 F.2d 610 (4th
Cir. 1960); McNeill v. United States, 236 F.2d 149 (1st Cir.
1956) .
74
to answer questions at a trial or before a grand jury constitute
^ 22. /but a single offense.
state courts have consistently held that multiple refusals
Fixing the entire courseof trial conduct as the unit
°f prosecution is particularly appropriate in this case. The
sixteen alleged contempts were not unrelated incidents, but
were part of a single course of conduct that arose over a
single issue — the continuing dispute between appellant and
the court regarding appellant's right either to represent him
self or to be represented by attorney Garry. Half of the
sixteen incidents were concentrated in a four day period from
_93/
October 27 until October 30, 1968, and another three occurred
94/
on a single day. Four of the incidents arose when appellant
95/asked to be allowed to cross-examine a witness, and four
others arose when appellant sought to argue motions on his own
9£/behalf.
21/ Yates v. United States, supra; United States v. Empsak,
supra; United States v. Abe. 95 F. Supp. 991 (D. Hawaii 1950);
People ex rel. Amarante v. McDonnell, 100 N.Y.S.2d 463 (S. Ct!
Kings Cty. 1950); Maxwell v. Rives, supra.
23/ Incidents 8 through 15.
24/ Incidents 5, 6 and 7.
25/ Incidents 10, 12, 15, 16.
96y Incidents 1, 2, 5, 13. The close interconnection between
the allegedly contemptuous incidents in this case is typical
of direct contempt cases. See, e.g., Yates v. United States,
su£ra; Wood v. Georgia, 370 U.S. 375 (1962); United States v.
Sacher, supra; Gautreaux v. Gautreaux, supra; State v. Mouser,
75
Should this Court conclude that the appropriate unit of
prosecution under § 401(1) is the entire course of trial con
duct, this would not impair the power of a trial court to cite
a party, attorney, or spectator for criminal contempt without
waiting for the end of the trial. Nor would it necessarily
mean that a contemnor could not be adjudged and punished in
separate contempt proceedings for contemptuous conduct during
the course of a trial, since such an adjudication and sentence
might be held to break up the continuing offense into two or
97_/
more distinct crimes.
96/ (Cont'd)
208 La. 1093, 24 So.2d 151 (1945). Where multiple violations
of a single statute typically or necessarily involve a single
motive or impulse, the Supreme Court has consistently favored
treating those violations as constituting a single continuing
crime. Blockburger v. United States, supra, 284 U.S. at 302.
In United States v. Universal C.I.T. Credit Corp., the court
held that several violations of the minimum wage law consti
tuted but a single crime where they resulted from a single
management policy decision. Supra, 344 U.S. at 244. And in
United States v. Midstate Horticultural Company, Inc., the
court held that interstate transportation of goods at an ille
gally low rate was only one crime, although it involved a
series of acts over an extended period of time and the crossing
of several state lines, because the crime was "set on foot by
a single impulse and operated by an unintermittent force."
Supra, 306 U.S. at 166. See also Justice White dissenting in
Toussie v. United States, 25 L.Ed.2d 156, 166 (1970).
97/ Compare, e.g., Bullock v. United States, 265 F.2d 683
(6 th Cir. 1959); Tobin v. Pielet, 186 F.2d 886 (7th Cir.
(1951).
76
Ill
IN THE CIRCUMSTANCES OF THIS CASE APPELLANT
WAS ENTITLED TO HAVE HIS CONTEMPT CHARGES
HEARD BY A JUDGE OTHER THAN THE JUDGE WHO
PRESIDED OVER THE TRIAL OUT OF WHICH SAID
CHARGES AROSE.
Virtually all the contempt charges in this case arose
out of a continuing, personal confrontation between appellant
and the trial judge over appellant's constitutional and statutory
rights, involving incidents in which appellant's conduct took
the form of increasingly hostile and derogatory comments about
the trial judge. The judge, far from remaining an impartial
98/
arbiter, above the turmoil of the trial over which he presided,
actively embroiled himself in continual controversy with appellant
and his co-defendants and their attorneys. Finally, the
judge took no action either to cite, convict or sentence appellant
for the sixteen incidents of allegedly contemptuous conduct which
occurred during the course of six weeks of trial, until the time
that he declared a mistrial in appellant's case, and severed it
from that of his co-defendants. Appellant submits that under
2 3 / Cf. Illinois v. Allen, ___ U.S. ___, 38 U.S.L. Wk. 4247,
4250 (March 31, 1970), where the Supreme Court noted in upholding
the trial judge's action in removing defendant from his trial,
that the judge had, despite severe provocation, "at all times
conducted himself with that dignity, decorum, and patience that befits a judge."
77
these circumstances it was error for the trial judge to adjudge
and sentence appellant on the contempt charges rather than
99/
referring the case to another judge.
Applicable authority makes it clear that where the trial
judge in fact becomes embroiled in controversy with the contemnor,
he is obligated to refer contempt charges to another judge.
(See III B, infra pp, 9 1 -9 6) But we believe that the
test for disqualification should be whether the record reveals
significant potential for embroilment and therefore bias. (See
III A, infra pp. 7 9-9 1 ) Recent Supreme Court cases appear
iqq/to call for such a rule, and it seems preferable to a test
depending upon actual embroilment for a number of reasons.
Li-^st it is simply impracticable to ask a trial judge who may
in fact have become involved to the point that he can no longer
, . 1 0 1 /act as an unbiased arbiter to make that determination himself.
Such a test is therefore likely to be both ineffective and
inefficient, since it would be primarily limited to use as
grounds for reversal by appellate courts. Second, the usefulness
.2 2/ For a collection of authorities relevant to this issue see
generally Anno., Disqualification of Judge in Proceedings to
Punish Contempt, 64 A.L.R. 2d 600 (1959); Anno., Construction
of Provision in Federal Criminal Procedure Rule 42(b) That if
Contempt Charges Involve Disrespect to or Criticism of Judge, He
.i-g- Disqualified from Presiding at Trial or Hearing Except with
Defendant1s consent. 3 A.L.R. Fed. 420 (1970) .
LHQ/ See, e.g., In re Murchison. 349 U.S. 133 (1955) 7 Ungar v.
Sarafite, 376 U.S. 575, 584 (1964). — ----
101/ Thus it has been said that that part of F.R. Crim. P. 42(b)
providing for disqualification "if the contempt charged involves
78
of such a test is further limited by the fact that appellate
judges are not likely to find congenial the task of determining
that a particular judge became so embroiled as to lose his
judicial impartiality. Third, at a time when the integrity of
the judicial system is being seriously questioned because of
cases such as the instant trial, it is particularly important
to establish rules which will ensure to the extent possible
that courts not only provide, but appear to provide justice.
Appellant contends he is entitled to reversal either on
the ground of the potential for bias in the instant case (III A,
infra) or because of the actual involvement shown by the trial
judge (III B, infra). But there can be no question that in
combination the circumstances of this case mandate reversal.
A. WHERE CONTEMPT CHARGES ARISE OUT OF A
PERSONAL CONFRONTATION WITH THE TRIAL JUDGE
AND INVOLVE PERSONAL, CRITICAL AND DEROGATORY
COMMENTS ABOUT THAT JUDGE, AND WHERE THAT
JUDGE FINDS NO NECESSITY FOR IMMEDIATE ACTION,
THEN THE CONTEMNOR IS ENTITLED TO A HEARING
BEFORE ANOTHER JUDGE.
During the course of his abortive trial appellant was
increasingly vexed by the denial of his claims to be repre
sented by Garry or to represent himself, and frustrated by the
court's refusal even to allow him to present his objections, and
101/ (Continued)
disrespect to or criticism of a judge" was "prompted by the
common experience that uncommonly prejudiced individuals almost
invariably consider themselves impartial . . ." Anno., supra
n. 99 , 3 A.L.R. Fed. at 422. ---- — K
79
its persistent comment that he was in fact represented by
Kurstler. Thus, while for the most part Seale was polite and
restrained in his requests and his attempts to present a
102/
defense, he became increasingly insistent on his right to
present some defense, and increasingly acrimonious in his
condemnation of the court's denial of that right. Virtually
all the contempt charges are grounded at least in part on his
condemnation of the judge in the most personal terms for
103/refusal to allow Seale to conduct his own defense.
102/ See, e.g., TR 1409, 1486-87, 1488, 1665-66, 1994, 3121, JS52, 3368-69.
1Q y F o r example, the Contempt Certificate (Record on Appeal,
Item No. 57) charges appellant with sayinq, inter alia, the following:
Incident 1:
MR. SEALE: If I am consistently denied this right of
legal defense counsel of my choice who is
effective by the judge of this court, then
I can only see the judge as a blatant racist
of the United States Court. . . .
[w]ith gross prejudicial error toward all
defendants and myself. . . .
then the tenor is the act of racism, and
me, a black man, there seems to be a form
of prejudice against me, even to the other
defendants, on the part of the judge.
(TR 5416)
Incident 2:
THE COURT: I direct you, sir, to remain quiet.
MR. SEALE: And just be railroaded?
80
(TR 5417-18)
It is perhaps inevitable that such comments by the
defendant would be perceived by the trial judge as a personal
103/ (continued)
Incident 4:
MR. SEALE: . . . You know, the black man tries to get
a fair trial in this country. The United
States Government, huh. Nixon and the rest
of them. Go ahead and continue. I'll watch
and get railroaded.
(TR 5422)
(Following a dispute with the court over
Seale's right to speak)
Incident 5:
MR. SEALE: I still want my right to defend myself.
A railroad operation, and you know it,
from Nixon on down. They got you running
around here violating my constitutional
rights.
(TR 5426)
Incident 6 : [here the court noted that, "he", apparently
appellant, "is not addressing me with
authority."]
(TR 5429)
(Following a dispute over Seale's right to
represent himself)
Incident 7:
MR. SEALE: They don't take orders from racist judges,
but I can convey the orders for them and
they will follow them.
(TR 5430)
(Following Seale's attempt to quiet the spectators,
TR 3638-42)
Incident 8 :
MR. SEALE: . . . You have been denying [my constitu
tional rights]. Every other word you say
is denied, denied, denied, denied, and you
begin to oink in the faces of the masses
of the people of this country. That is
what you begin to represent, the corruptness
of this rotten government for four hundred
years . . . .
81
attack, particularly in a trial where from the beginning he
was engaged with all the defendants and with the defense
103/ (Continued)
I still demand the right to defend myself.
You are not fooled? After you have walked
over people's constitutional rights? . . .
[A]fter you done walked over people's con
stitutional rights, the Sixth Amendment,
the Fifth Amendment, and the phoniness and
the corruptness of this very trial, for
people to have a right to speak out, freedom
of speech, freedom of assembly, and et
cetera. You have did everything you could
with those jive lying witnesses up there
presented by these pig agents of the Govern
ment to lie and say and condone some rotten
racist, facist crap by racist cops and pigs
that beat people's heads -- and I demand my
constitutional rights — demand — demand —
(TR 5434-35, 5437)
Incident 9:
MR. SEALE: . . . Black people ain't supposed to have
a mind? That's what you think. We got a
body and a mind. I wonder, did you lose
yours in the Superman syndrome comic book
stories? You must have to deny us our con
stitutional rights. . . .
. . . That jury hasn't heard all of the
motions you denied behind the scenes. How
you tricked that juror out of that stand
there by threatening her with that jive
letter that you know darned well I didn't
send, which is a lie. . . .
(TR 5440-41)
(Following the court's denial of Seale's objection
to a witness's testifying against him)
82
attorneys in a series of personal disputes and confrontations
and where he concluded, in punishing appellant and later his
103/ (Continued)
Incident 10;
MR. SEALE: Let the record show you violated that and
a black man cannot be discriminated against
in relation to his legal defense and that
is exactly what you have done. You know
you have. . . .
. . . You are the one in contempt of people's
constitutional rights. I am not in contempt
of nothing. You are the one who is in contempt
The people of America need to admonish you and
the whole Nixon administration. . . .
(TR 5444-45)
(Following a dispute over Seale's right to
cross-examine witness)
Incident 11:
MR. SEALE: . . . I have a constitutional right to speak,
and if you try to suppress my constitutional
right to speak out in behalf of my constitu
tional rights, then I can only see you as a
bigot, a racist, and a fascist. . . .
(TR 5451)
Incident 12:
MR. SEALE: You have George Washington and Benjamin
Franklin sitting in a picture behind you,
and they were slave owners. That's what they
were. They owned slaves. You are acting in
the same manner, denying me my constitutional
rights being able to cross-examine this witness
(TR 5452)(In midst of lengthy dispute over denial of Seale's
request to cross-examine witness and to represent
himself generally, TR 4719-27)
83
co-defendants and their attorneys, that all had been guilty
of an attempt to sabotage the administration of justice.
103/ (Cont'd)
Incident 13:
MR. SEALE: You just got through saying you observed
the laws. That law protects my right not
to be discriminated against in my legal
defense. Why don't you recognize that?
Let me defend myself. . . .
. . . it's a form of racism, racism is what
stopped my argument.
(TR 5461)
Incident 15:
MR. SEALE: . . . you cannot sit up here and continue
to deny me my constitutional rights to
cross-examine the witness, my constitutional
right to defend myself. . . .
(TR 5470)
Incident 16:
MR. SEALE: Me, myself, my own person have no right to
defend myself? This is erroneous. It is a
complete, complete overt, facist attempt,
facist operation — . . .
How about that? You are talking about
insulting you. You are the one that is
insulting me, insulting the people of the
world, insulting the people of America, and
you know it.
(TR 5473-74)
[The transcript references above are to where the trial court read contempt charges to appellant].
Additionally, the record is replete with other confronta
tions between the judge and Mr. Seale resulting in comments,
remarks or outbursts by Mr. Seale of a peculiarly personal
nature. See, e,g., TR 392, 4766, 4798-99, 4846, 4968-69, 5356-
84
Indeed, the record reveals that the judge was in fact enormously
affected, hurt and personally affronted by appellant's comments.
The judge repeatedly made reference to the fact that Seale had
10Vcalled him names and otherwise insulted him.
1Q47 See, e.g., TR 4759-60, 4837, 4940, 4954, 4961, 5005-09,
5346, 5402. Even after Seale’s case was severed and he was
punished for contempt, the trial judge continued to refer
throughout the other defendants' trial to Seale's prior conduct,
revealing the obsessive outrage and bitterness that conduct had
aroused. Thus at the conclusion of the entire trial, in sen
tencing Kunstler for contempt, the court spoke as follows:
. . . even if I were wrong, if I were wrong,
even if the many times he called me the vile
names that he called me — I don't know how it
could be proven that a man of my faith was a
pig; that would be very difficult — but there
is a man who never saw me, I believe, before
he came into this courtroom, but to have
described me as he described me, and for you,
and you represent yourself to be a leader at
the Bar, and you have practiced in all of
these courts that you have mentioned, you have
never, never made an attempt to say something
like this to him, "Bobby, hush. Cool it. Sit
down now." You let him go on.
. . . Someday, someday, I hope that his
conduct, or the reason for his conduct will
be demonstrated clearly, and you can't
disassociate yourself from him. He was your
client. I know you dispute the fact that he
is now, but he was. Even in the way you
describe it, he was your client at one time,
and you made no effort, no effort, to have
him keep from calling a Judge of the United
States District Court a pig, a fascist pig,
a racist pig. . . .
85
Similarly, he revealed extraordinary sensitivity to any word
or deed by Seale's co-defendants and particularly by their
attorneys that could conceivably be taken as an insult or an
attack upon his authority. He stated constantly — often with
little or no apparent provocation — that he felt personally
threatened and insulted by the defense and concerned that his
105/
authority was being undermined.
The potential for bias created where contempt charges
arise out of a continuing personal confrontation between the
trial judge and contemnor is obvious. The judge who feels
himself subject to personal attack by a contemnor cannot,
consistent with due process,preside over the resulting contempt
proceedings at least where there is no necessity for immediate
adjudication. Here there was clearly no such justifying
necessity since the trial judge in fact took no action either
to cite, convict or sentence appellant for contempt until he
declared a mistrial in appellant's case and severed his trial
from that of the remaining seven defendants. At this point
his action could not be justified as a necessary means of
keeping order and enabling the trial to proceed.
105./ See, e.g. , TR *87-88; TR 31-32, 395-96, 670, 753, 848-49,
1081-82, 1242, 1741, 1964, 2208, 2702-03, 4244, 4499-4500,
4758, 4760, 4830-31, 4837, 4943-44. And see infra p. 161, n.
227 for specific examples.
86
Such a rule would not deprive a trial judge of the
power to adjudicate or punish ordinary in-court contempts.
Nor would it deprive him of the power to deal with disruptive
court misconduct vhere attacks of a personal nature were
involved, by citing the contemnor at whatever point in the
trial it appeared necessary in order to ensure its orderly
continuance. Nor does appellant contend that where immediate
action is necessitated during trial the judge is prohibited
from considering previous acts of contempt not adjudicated
at the time. The trial judge is not required to act immediately
on every contempt of a personal nature if he is to penalize
such acts at all. But appellant does contend that a trial
judge cannot defer action on such contempts until after it is
no longer necessary to ensure an orderly trial and then refuse
to refer the case to a judge whose impartiality can be presumed.
A rule disqualifying the judge who has been subject to
personal criticism where there is no necessity for instant
adjudication is supported by a series of Supreme Court decisions.
The rule's origin lies in the Court's statement in Cooke v .
United States, 267 U.S. 517, 539 (1925), that:
106/
106/ In Sacher v. United States, 343 U.S. 1 (1952), and Ungar
X j:_Sarafite, 376 U.S. 575 (1964), the Supreme Court upheld the
power of a trial judge to rule on contempt charges which are
not in the nature of a personal attack.
87
where the contempt charged has in it the element
of personal criticism or attack upon the judge
then another judge should be called upon to
adjudicate the contempt 'where conditions do not
make it impracticable, or where the delay may
not injure public or private right.'107/
In Sacher v. United States, 343 U.S. 1 (1952), the Court
upheld a trial judge's delayed adjudication of in-court
contempt, but on grounds that plainly distinguish the case
from appellant's. (See pp. 108-11, infra) To the extent
that Sacher can be read as specifically approving a rule that
would give the trial judge power to punish personal contempts
where no immediate necessity appears, it has been either refined
or overruled by subsequent Supreme Court decisions holding that
there is a class of contempt, involving personal criticism of
the trial judge, where that judge is so disqualified, at least
in the absence of some impelling necessity.
Thus in Offutt v. United States. 348 U.S. 11 (1954), the
Court reversed a case in which the trial judge summarily found
defense counsel in contempt at the close of trial for conduct
during the course of trial, holding that where the contempt
involved a clash between the trial court and contemnors, it
]J2/ The Court cited Cornish v. United States. 299 F. 283
(6th Cir. 1924), which held that in a case of contempt involving
libel of a judge, another judge ought to hear it in the absence of some compelling necessity or urgency.
88
In In reshould have been heard by some other judge.
Murchison, 349 U.S. 133 (1955), the Court made it clear that
actual involvement by the judge need not be shown to require
his disqualification — the fact he played a role creating
the potential for bias was sufficient. The court held that
a judge acting as a one-man grand jury could not subsequently
judge contempt charges arising out of the grand jury proceed
ing. The decision was based on the theory that playing the
role of grand jury created a potential for bias inconsistent
109/
with the requirement of an impartial arbiter. It is clear
108/
IQS/ The opinion was written by Mr. Justice Frankfurter, who
dissented in Sacher, supra, and while the opinion specifically
refused to "retrace the ground so recently covered in the
Sacher case" (348 U.S. at 13), and relied on the judge's per
sonal embroilment with contemnors (see III B, pp. 91-96
infra) , it has been interpreted as indicative of a shift in
position by the Court. See, e .g ,, Union Producing Co. v.
Federal Power Comm'n., 127 F. Supp. 88 (1954); Anno., 99 L.Ed.
19 (1955); Anno., 3 L.Ed. 2d 1855 (1959); Note, Procedures
for Trying Contempts in the Federal Courts, 73 HARV. L. REV.
353, 362-63 (1959).
109/ "A fair trial in a fair tribunal is a basic
requirement of due process. Fairness of course
requires an absence of actual bias in the trial
of cases. But our system of law has always
endeavored to prevent even the probability of
unfairness. To this end no man can be a judge in
his own case and no man is permitted to try cases
where he has an interest in the outcome. That
interest cannot be defined with precision. . . .
But to perform its high function in the best way
'justice must satisfy the appearance of justice.'
Offutt v. United States, 348 U.S. 11, 14."
(349 U.S. at 136)
See generally Note, Contempt Proceedings: Disqualification of
Judge for Bias, 44 CALIF. L. REV. 425 (1956).
89
that there is a similar potential for bias where, as here, the
judge has been the subject of personal criticism by the con-
temnor, and perceives himself as the victim of personal attack.
Finally, in Ungar v. Sarafite. 376 U.S. 575, 584 (1964), the
Court specifically distinguished between contempt involving
no more than "disobedience to court orders and criticism of
its rulings during the course of a trial," and "criticisms of
judicial conduct which are so personal and so probably pro
ductive of bias that the judge must disqualify himself to
avoid being the judge in his own case"; and relied in upholding
the conviction on the fact that the contempts did not involve
"an insulting attack upon the integrity of the judge carrying
such potential for bias as to require disqualification."
Simultaneously the Court has made it increasingly clear
that deviation from traditional procedural safeguards — among
which the guarantee of an impartial arbiter is fundamental —
can be justified in criminal contempt proceedings, if at all,
only by the necessity of ensuring the orderly continuance of
trial proceedings. E.g., Harris v. United States, 382 U.S. 162
(1965); see United States v. Pace, 371 F.2d 810, 811 (2nd Cir.
1967) .
These cases, and their interpretation by the courts of
appeals, mandate reversal where, as here, contempts are
in the nature of highly personal criticism of the trial court,
and where instant adjudication is not necessary to ensure the
90
orderly continuance of trial proceedings.
B. WHERE THE TRIAL JUDGE BECOMES PERSONALLY EMBROIL
ED WITH THE CONTEMNOR, THEN THE CONTEMNOR IS
ENTITLED TO A HEARING ON THE CONTEMPT CHARGES BEFORE
ANOTHER JUDGE.
The record in the instant case reveals that the trial
judge was not only subject to condemnation of a highly per
sonal nature by appellant but, from the beginning of the
trial, was actively embroiled in a personal clash with him,
his co-defendants and their attorneys.
As indicated supra, the record consists of a series of
disputes between the trial judge and Seale regarding Seale's
Sixth Amendment rights. Even had the judge remained com
pletely unemotional and objective in his attitude toward
“ 2/
110/ See United States v. Bradt, 294 F.2d 879, 885 (6th Cir.
1961) :
. . [W] e find no pressing need that the con
tempt proceeding be heard and disposed of immedi
ately. We think that the controversy between the
Judge and the appellants . . . involving allega
tions in the affidavit of disqualification, which
the Judge considered as being untruthful state
ments about him, with unjustified and improper
implication, included matters of a personal nature
to the Judge which, under the particular circum
stances make it advisable that the rule in the
Cooke and Offutt cases, rather than the rule in
the Sacher case, be applied, and that the contempt
proceedings be heard by another judge.
See also United States v. Coombs, 390 F.2d 426 (6th Cir. 1968)
United States v. Temple, 349 F.2d 116 (4th Cir. 1965); cf.
Kasson v. Hughes. 390 F.2d 183 (3rd Cir. 1968).
91
appellant, he was necessarily a participant in disputes with
a person whose conduct in those disputes he later was to
adjudge and penalize. Moreover, it is clear that the judge
was never able to be unemotional and objective about Seale's
conduct. He not only perceived himself as the victim of a
concerted attack by the defense, supra pp. 81-86,
but he was actively hostile and clearly prejudiced from the
beginning of the trial. This is described in some detail in
Argument VIII, infra pp. 159-65, but will be treated
briefly here.
The trial judge's hostility to appellant was revealed in
part by tone. Thus Seale was never referred to by name but
111/
always as "that man." The judge was also deliberately pro
vocative. Instead of simply ruling on the merits of Seale's
Sixth Amendment claims and informing Seale the issue would be
settled on appeal, he engaged Seale in a continuing battle,
attempting in a variety of ways to force Seale to concede.
Thus he insisted always, in denying Seale's right to speak for
112/
himself, that Seale was represented by "your lawyer," Kunstler,
when the judge knew that no representation was iri fact being
111/ See, e.g., TR 4069, 4325-26, 4393, 4609, 4725, 4726, 4727,
5346.
112/ See, e.g., TR 4218, 4343, 4393, 4607, 4721, 4757, 5015.
92
provided and that Seale claimed Kunstler was not his lawyer.
Whether or not the judge was right in denying Seale's claim
that he had a right to represent himself, by insisting throughout
that Seale was represented he in effect forced Seale to respond
that he was not so represented so as to avoid appearing to
accede to the court's characterization.
This was part of what can only be seen as a deliberate
attempt to force Seale to waive his claim that he had been
wrongfully denied the right to counsel of his choice or to
represent himself. Thus the court at first refused to allow
several lawyers to withdraw and even had two lawyers arrested
and held in custody for contempt because of their failure to
appear at trial, attempting meanwhile to extract in exchange
for their release an admission from defendants that they were
adequately represented by the remaining attorneys and thus
that they had not been denied the right to counsel because of
Garry's absence. Only after the government suggested the
lawyers be released and contempt charges dismissed did the
court consent to do so without extraction of such a waiver.
At one point the court threatened to revoke the bail of the
93
other defendants unless they withdraw their support of Seale's
claim that he had been denied counsel or the right to represent
1 1 3 /
himself.
This was only part of a pattern of hostile
conduct toward the defense in general.
The point is not whether defendants or their attorneys were
justified in all their actions but that the judge failed to
remain an objective and unemotional arbiter. He engaged the
defense in a series of sparring, hostile exchanges, petty and
114/
childish in the extreme, and was incredibly and consistently
rude, sarcastic, harassing and insulting to attorneys Weinglass
115/
and Kunstler. Typical of the level of the court's conduct is
the fact that throughout the trial the court purported to forget
Weinglass' name, calling him at various times Weinstein, Feinstein,
Fineglass, Weinberg, Weinramer, to the point where the defense
finally produced a placard labeled Weinglass.
Finally, the court revealed in numerous ways that it was
prejudiced against the defense by, for example, making wholly
113/ TR 147-56, 158-70, 4723, 4726. See infra, p. 161-63.
114/ See, e.g., TR* 134-136, 240, 244; TR 453-54. 636, 753, 924,
1134-35, 14477, 1546, 1561, 1566, 2201, 2870, 4398, 5172-73.
115/ E.g., TR* 15-17, 24, 29, 67, 87-88, 96-97, 106-107, 124, 136,
172-73, 246, 246-47, 254; TR 31-32, 133-35, 261, 324-25, 395, 539,
6 6 6-6 8 , 684, 865-66, 1064, 1126-27, 1136, 1538, 1878 ("Do you
want a gold star . . .?), 2329-30, 2516, 2600, 2720, 2939, 3326-27,
3733, 3867, 3910, 4045, 4244, 4627, 4629, 4670, 4816-17, 4887.For specific examples see infra p. 160, n.X26.
94
a^kitrary rulings and orders, and taking sides with government
lawyers against defense lawyers. (See pp. 161-65 infra)
Due process of law requires that a judge who has an
interest in the outcome of judicial proceedings be disqualified.
Turney v. Ohio, 273 U.S. 510 (1927). Where the record shows,
as it does in this case, not merely potential for bias but
actual interest on the part of the judge by virtue of active
participation and emotional involvement in a personal clash
with the contemnor, then he simply cannot preside over the
contempt proceedings, thereby becoming the judge in his own
case. Offutt v. United States, supra, dealt with this exact
situation and resolved it definitively. There the trial judge,
at the close of trial, summarily convicted defense counsel of
contempt, but the Supreme Court reversed and remanded for a
95
hearing before another judge because the trial judge "instead
of representing the impersonal authority of the law
116/permitted himself to become personally embroiled. . . ."
Disqualifying a trial judge from determining contempt
charges where he has become personally embroiled does not
deprive him of power adequately to deal with trial misconduct
in such a case. He may cite the contemnor and provide for
his immediate commitment pending hearing on the charges by
another judge. But he cannot, consistent with the fairness
and impartiality required by due process, himself determine
those charges.
* • • For one reason or another the judge
failed to impose his moral authority upon
the proceedings. His behavior precluded that
atmosphere of austerity which should especially
dominate a criminal trial and which is indispens
able for an appropriate sense of responsibility
on the part of court, counsel and jury." (348 U.S. at 17).
See also Ungar v._garafite, supra p . g o , noting in upholding
a contempt conviction that the judge never became "embroiled
m intemperate wrangling with petitioner"; and that rather than
proceeding summarily he provided for a hearing on notice "which
was conducted dispassionately and with a decorum befitting a
judicial proceeding"; and concluding therefore that "[i]n these
circumstances, we cannot say there was bias, or such liklihood
k-*-a® or an aPPearance of bias that the judge was unable to
nold tne balance between vindicating the interests of the court
and the interests of the accused." (376 U.S. at 585, 588).
See also United States v. Coombs, 390 F.2d 426, 429 (6th Cir.
1968)* Kasson v. Hughes, 390 F.2d 183 (3rd Cir. 1968).
96
IV '!
THE COURT BELOW ERRED IN CONVICTING APPEL
LANT SUMMARILY RATHER THAN ACCORDING HIM
THE PROCEDURAL SAFEGUARDS DEFINED IN RULE
42 (b) OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE
On November 5, 1969, after the noon recess, the trial
judge specifically found that Seale's previous actions had
constituted criminal contempt, and adjudged Seale guilty of
contempt. Only then, specifically noting that he was acting
117/
pursuant to F. R. Crim. P. 42(a), did he even read a descrip
tion of the 16 different allegedly contemptuous incidents
which had occurred throughout the previous six weeks of trial.
He then asked to hear from Kunstler and Seale only as to
punishment. (TR 5411, 5415, 5475-78) Kunstler refused to say
anything on the ground that he did not represent Seale. Seale,
who was given no idea of what sort of statement might be deemed
relevant by the court, spoke generally. The court sentenced
Seale to 16 consecutive three-month terms; declared a mistrial,
and severed Seale's case. (TR 5475-83)
At no previous point in the trial proceedings was appel
lant cited for contempt. Nor was he ever specifically warned
jL17/"Summary Disposition: A criminal contempt may be punished
summarily if the judge certifies that he saw or heard the
conduct constituting the contempt and that it was committed
in the actual presence of the court. The order of contempt
shall be signed by the judge and entered of record."
97
that his conduct constituted criminal contempt, or that he
would subsequently be subjected to criminal contempt
118/
penalties for it.
A. CONTEMNORS MAY BE SUMMARILY PUNISHED PURSUANT
TO RULE 4 2 (a) OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE ONLY WHERE INSTANT ADJUDICATION IS
FOUND NECESSARY TO ENSURE THE ORDERLY CONTIN
UANCE OF TRIAL PROCEEDINGS.
Citation for direct contempt should
not be delayed for months. It should
spring fresh from the alleged obstruction
of the court's performance of its judicial
duty, although adjudication and punish
ment might well await the convenience
of the court's business. (Parmelee Trans
portation Co. v. Keeshin, 292 F.2d 806,
810 (7th Cir. 1961) )
Since the court failed to cite, adjudicate or punish
appellant for contempt during the course of his trial, but
instead waited until it had decided to declare a mistrial,
summary punishment for the 16 different acts of contempt
cannot be justified by any need to ensure the orderly con
tinuance of trial proceedings. Having delayed action to that
123/ For a detailed analysis of every statement by the court
which might plausibly be described as a warning of any sort,
see Argument VII, infra, pp. 141-46. This makes it clear
that despite numerous vague threats of future action, the
judge never told appellant, an uncounselled layman, that his
conduct might subject him to criminal contempt penalties. To
the extent that appellant was warned at all at the time of his
alleged misconduct (and for most of the incidents he received
not even a vague threat of future action) it was entirely
unclear what was being threatened. Civil contempt, binding
and gagging, declaration of a mistrial and severance, adjourn
ment of the proceedings, a more severe sentence if he was
convicted on the substantive charge — these and other alterna
tives were open to the court and one of them (binding and gagging)
98
point, the trial judge was obligated to proceed under F. R.
112/Crim. P. 42 (b) rather than Rule 42 (a) .
Since summary punishment pursuant to Rule 42 (a) dispenses
with virtually all procedural safeguards, it can be justified
110/
only by the most overriding necessity. This power to punish
118/ (Cont'd)
was both specifically threatened and used during the course
of the proceedings.
Nor did the court ever tell appellant,
a layman, what constituted criminal contempt in general or
whether his conduct at any particular point amounted to such.
112/ "Disposition Upon Notice and Hearing: A criminal contempt
except as provided in subdivision (a) of this rule shall be
prosecuted on notice. The notice shall state the time and
place of hearing, allow a reasonable time for the preparation
of the defense, and shall state the essential facts constituting
the criminal contempt charged and describe it as such. The
notice shall be given orally by the judge in open court in the
presence of the defendant or, on application of the United
States attorney or of an attorney appointed by the court for
that purpose, by an order to show cause or an order to arrest.
The defendant is entitled to a trial by jury in any case in
which an act of Congress so provides. He is entitled to admis
sion to bail as provided in these rules. If the contempt
charged involves disrespect to or criticism of a judge, that
judge is disqualified from presiding at the trial or hearing
except with defendant's consent. Upon a verdict or finding
of guilt the court shall enter an order fixing the punishment."
112/ As Mr. Justice Frankfurter wrote in 1952:
Summary punishment of contempt is concededly
an exception to the requirements of Due Process.
Necessity dictates the departure. Necessity
must bound its limits. (Sacher v. United States.
343 U.S. 1, 36 (1952) (dissenting))
See also Black's dissent in Green v. United States. 356
U.S. 165, 193, 213 (1958). ~ ~ ~
99
direct or in-court contempt summarily has from its very
origin been justified only by the need for some means of
121/
immediately dealing with misconduct. While the fact that
the misconduct is witnessed by the judge has been used to
rationalize denial of any sort of hearing where necessity
demands instant adjudication, it is clear that in the absence
122 /
of such necessity fairness requires a hearing.
Denying courts power summarily to punish trial misconduct
at a point where it is no longer necessary to ensure the orderly
continuance of trial in no way undermines their power to deal
1 1 1 / See, e_^. , Ex parte Terry, 128 U.S. 289 (1888); Cooke v.
United States, 267 U.S. 517 (1925); In re Oliver, 333 U.S. 257
U 9 48); Ex parte Hudgings, 249 U.S. 378 (1919); Toledo Newspaper
Co. v. United States, 247 U.S. 402, 422 (1918) (Holmes, J.,
dissenting).
1 2 2 / Thus in Cooke. supra n. 121, the Court wrote:
Punishment without issue or trial was so
contrary to the usual and ordinarily
indispensable hearing before judgment,
constituting due process, that the assump
tion that the court saw everything that
went on in open court was required to
justify the exception but the need for
immediate penal vindication of the dignity
o f the court created it. (267 U.S. at 536)
(emphasis added)
100
with such misconduct. They can summarily punish such mis
conduct at the point in trial where it appears necessary,
or they can wait for the close of trial to provide for a
42(b) hearing. Nor does such a rule compel summary punish
ment without allowing any opportunity for reflection, or cause
any unnecessary delay and disruption in trial proceedings,
since trial courts unquestionably have the power to cite for
contempt during trial and defer adjudication and punishment
123/
until a later time.
In Sacher v. United States, supra, the first case con
struing F. R. Crim. P. 42, the Supreme Court upheld convictions
where at the conclusion of an eleven-month trial the court
summarily punished contemnors for conduct during the course of
124/
the trial. Strong dissents by Justices Black and Frankfurter 12
12 3/ See, e .g ., Parmelee Transportation Co. v. Keeshin, 292
F.2d 806, 810 (7th Cir. 1961); Maclnnis v. United States, 191
F.2d 157 (9th Cir. 1951)(contemnor was told in court that his
remark constituted contempt and that a certificate of contempt
in accordance with Rule 42 would be filed; sentence was post
poned to the end of trial); Hallinan v. United States, 182 F.2d
880 (9th Cir. 1950) (formal citation, judgment and sentence took
place during trial; execution of sentence was stayed until the
end of trial); United States v. Hall, 176 F.2d 163 (2nd Cir.
1949); Alexander v. Sharpe, 245 A.2d 279 (Me. Sup. Jud. Ct. 1968).
124/ The Court held that summary punishment under Rule 42(a)
could be deferred to the end of trial where the exigencies of
trial required it and the delay in no way prejudiced contemnors.
We shall show in Argument IV B, infra, pp. 108-11, that Sacher
is distinguishable on these grounds from the instant case.
101
pointed out that since the trial had ended there was no need
for instant adjudication to ensure order and, therefore, no
12 5/
justification for dispensing with basic procedural safeguards.
Even at the time decided, Sacher was an anomaly in the
126/
law. Previous cases upholding deferred summary action on
contemptuous conduct without exception involved only deferral 12
12 5/ Mr. Justice Black wrote:
To achieve these ends — decorum and obedience
to orders — courts must have power to act
immediately, and upon this need the power of
contempt rests. . . . Measured by this test
. . . there was no necessity here for Judge
Medina's summary action, because the trial was
over and the danger of obstructing it was passed.
(343 U.S. at 21)
Mr. Justice Frankfurter wrote:
In this case the course of events to the very
end of the trial shows that summary measures
were not necessary to enable the trial to go
on. . . . Despite the many incidents of
contempt that were charged, the trial went to
completion, nine months after the first inci
dent, without a single occasion making it
necessary to lay any one of the lawyers by the
heel in order to assure that the trial proceed
. . . . (343 U.S. at 36)(emphasis added)
126/ See, e.g.. 3 WRIGHT 168-69; Note, 2 STAN. L. REV. 763
(1950); Note, 37 CORN. L. Q. 795 (1952).
102
for a brief period prior to completion of trial. Commentators
128/
have consistently condemned the Sacher ruling. Most importantly,
subsequent decisions by the Supreme Court soon signalled a return
to the traditional view, vindicating the dissenting Justices'
position, and making it clear that, in this respect at least,
Sacher is no longer good law.
Thus in Harris v. United States, 382 U.S. 162 (1965), the
12 9/
Court redefined Rule 42 and effectively overruled Sacher,
holding that even in cases of direct contempt, Rule 42 (a) was
127/
127/ See, e .g ., Hallinan v. United States, 182 F.2d 880 (9th
Cir. 1950), and Maclnnis v. United States, 191 F.2d 157 (9th
Cir. 1951), supra n. 123, where the 9th Circuit affirmed
convictions for contempt committed by two lawyers in a trial
lasting from Nov. 14, 1949 to April 4, 1950. In Hallinan the
court delayed overnight (from Nov. 21 to Nov. 22) to prepare
the contempt certificate and pronounce judgment and sentence.
In Maclnnis the contemptuous conduct occurred Feb. 1? the
court delayed overnight to inform the lawyer that his remark
constituted contempt and that a certificate of contempt would
be filed. See also United States v. Hall, 176 F.2d 163 (2nd
Cir. 1949) (upholding contempt conviction where immediately
upon June 3 disruption contemnors were committed; formal
citation and judgment were deferred only to June 8 , still mid
trial) . See generally Note, 2 STAN. L. REV. 763 (1950); Note,
37 CORN. L. Q. 795 (1952). For cases reversing on the ground
that summary punishment could not be imposed after the need
for such action haeL passed, see, e .g . , In re Foote, 76 Cal.
543, 18 P. 678 (1888); People v. Burt, 257 111. App. 60 (1930).
128/ see, e.g., 3 WRIGHT 168-69; Note, 37 CORN. L. Q. 795,
797 (1952).
129/ see, e.g.. Note, 1966 DUKE L.J. 814, 822-23.
103
to be reserved for exceptional cases where instant adjudica-
130/
tion was absolutely necessary. The Court pointed out that
the fact that contemptuous conduct is witnessed by the trial
130/ in Harris the Court, specifically overruling Brown v.
United States, 359 U.S. 41 (1959), held that a grand jury
witness who refused to answer questions despite promised
immunity from prosecution could not be brought before a court,
questioned again, and then summarily punished for his refusal
to answer.
"Rule 42(a) was reserved 'for exceptional
circumstances.'. . . But swiftness was not a
prerequisite of justice here. Delay necessary
for a hearing would not imperil the grand jury
proceedings.
. . . Rule 42(b) provides the normal procedure. .
. . . Rule 42(b) prescribes the 'procedural
regularity' for all contempts in the federal
regime except those unusual situations envi
sioned by Rule 42 (a) where instant action is
necessary to protect the judicial institution
itself." (382 U.S. at 164-67)
Subsequent cases have interpreted Harris as applicable to
direct contempt committed in the course of a trial. United
States v. Pace, 371 F.2d 810 (2d Cir. 1967); cf. United States
ex rel Robson v. Malone, 412 F.2d 848 (7th Cir. 1969).
In considering Harris1 relevance, it is significant that
any delay caused by holding a Rule 42 (b) hearing would have
interrupted grand jury proceedings whereas, in the instant case
since a mistrial had been declared no delay in the trial pro
ceedings could conceivably have been caused. Also in Harris
the denial of a Rule 42(b) hearing appears far less significant
than in the instant case since in Harris the issue of guilt was
clear-cut, and the contemnor was provided with at least the
rudimentary safeguard of representation by counsel at both the
grand jury and the contempt hearing.
104
judge cannot justify abandoning procedural safeguards, since
a hearing may nonetheless be essential to such issues as
131/
criminal intent and mitigation of penalty.
In Panico v. United States, 375 U.S. 29 (1963), the
Court made it clear that where there was doubt as to a
contemnor1s criminal intent, and where evidence outside the
132/
record would bear on that issue, a 42(b) hearing was required.
It is clear in the instant case fairness demanded a
Rule 42(b) hearing. In the summary proceedings below appel
lant was given no opportunity whatsoever to present evidence
or argument relating to guilt — he was adjudged guilty before
the charges were even read to him, permitted only to speak
before the judge pronounced sentence, and given no chance to
prepare and present facts relevant to mitigation. Under
Rule 42(b) appellant would have been entitled to notice,
1 3 1 / See also Chief Justice Warren's dissent in Brown v. United
States, 359 U.S. 41, 53, 57-59 (1959), overruled in Harris,
supra. Other recent Supreme Court decisions have made it clear
that due process safeguards apply at sentencing proceedings and,
therefore, that even if there is no question as to guilt on
contempt charges, a hearing is necessary to allow presentation
of evidence and/or argument relating to the appropriate penalty.
See, e.g., authorities cited in n. 143, infra.
1 3 2 / There the trial court found defendant guilty of criminal
contempt in a 42(a) proceeding after the trial had ended.
Since there was some question as to contemnor's mental capacity
for forming the requisite criminal intent, the Supreme Court
reversed for a 42 (b) hearing. See also Rollerson v. United
States, 343 F.2d 269 (D.C. Cir. 1964).
105
adequate time to prepare a defense, opportunity to present
133/evidence and argument relevant to guilt and penalty, and
134/
representation by counsel. Additionally, of course, in the
circumstances of this case, at a Rule 42(b) hearing appellant
would have automatically been entitled to a hearing before
another judge, since that rule provides for disqualification
of the trial judge if the contempt charged involves disrespect
or criticism.
A Rule 42(b) hearing would have enabled appellant to
present evidence that he was not, as the trial judge evidently
135
believed, engaged in an attempt to sabotage the judicial system,
but instead was attempting to present and preserve his objec
tions to proceeding without counsel and without being allowed
to represent himself. Evidence might have demonstrated
133/ Cooke v. United States, supra; Ungar v. Sarafite. supra.
134/ Cooke, 267 U.S. at 537; Nilva v. United States. 227 F.2d
74, 80 (8th Cir. 1955). If the contempt proceedings had been
brought pursuant to Rule 42(b) appellant would presumably
have had opportunity to get Garry to represent him.
.135/ See the Second Circuit's decision in Sacher, supra, p.7, n.3
reversing a specification of contempt charging a "deliberate* ' '
and concerted effort to delay and obstruct the trial" on the
ground that such a charge required procedural regularity for
its determination (182 F.2d at 455; Frank,:J., concurring;
see also 182 F.2d at 423, 430). Judge Frank noted that out-of-
court evidence was relevant to such a charge since it essentially involved a conspiracy.
106
conclusively that he had never agreed to be represented at
trial by anyone but Garry; that he did not know Garry wouldn't
be at trial until its second day, after the jury had been
selected; that he was not advised by the other defendants'
attorneys during the course of trial; and that he believed
it necessary to preserve his rights for him continually to
object to the court's rulings and to attempt to present a
defense; or that he did not know that if he prevailed on
appeal he would be entitled to a new trial. Such evidence
would have been relevant to appellant's criminal intent and
therefore guilt, as well as to penalty.
126/In Offutt v. United States, 232 F.2d 69 (D.C. Cir.),
cert denied, 351 U.S. 988 (1956), the court indicated some of
the sorts of evidence that might be relevant both to guilt and
sentence in direct contempt cases. There the court reversed
because at the hearing below the judge had decided the case
solely on the basis of the transcript of the trial proceedings
out of which the contempt charges arose, refusing to allow the
contemnor to present additional evidence. While the case
relied in. part on the fact that the judge below was not the
judge who witnessed the contempt and therefore evidence
regarding demeanor was relevant, the decision was also explicitly
grounded on a finding that evidence going to contemnor1s intent
136/ On remand following the Supreme Court's decision in Offutt,
supra.
107
Weis relevant to guilt and penalty and he was therefore
127/entitled to present such evidence. Appellant was entitled
to a similar opportunity.
B. CONTEMNORS MAY NOT BE SUMMARILY PUNISHED PURSUANT
TO RULE 42(a) OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE FOR PRIOR ACTS OF MISCONDUCT WHERE PRE-
JUDICE IS CAUSED BY THE DELAY IN ADJUDICATION.
Assuming that summary punishment can ever be imposed after
the conclusion of trial for misconduct during the course of
trial, such punishment is allowed only if the contemnor is not
prejudiced by the delay in adjudication. In Sacher v. United
States/ supra, the Court relied specifically on the fact that
137/ With regard to the charge that the contemnor had "asked
of witnesses questions that were highly prejudicial to the
witnesses and for which there was no foundation," the court ruled:
It may be true that a finding of contumacious intent
is not always a prerequisite to a contempt conviction
under 18 U.S.C. §401(1); absence of such intent may
go only to mitigation. . . . But a finding of
"misbehavior" is essential. . . . Thus, when the
conduct in question is not clearly blameworthy, con
sisting, as here, of asking witnesses incompetent
questions, there is no contempt unless there is some
sort of wrongful intent. . . . if Offutt were able
to introduce evidence tending to prove that he believed
there was a foundation for the questions he asked the
witnesses, the court might conclude that he was not
guilty of misbehavior in asking them.
. . . [H] e should have the opportunity to introduce
such evidence for the court's consideration. And,
in addition, some of the evidence offered no doubt
would be relevant and material to the question of
mitigation (232 F.2d at 72).
See also Winger v. United States. 244 F.2d 103 (5th Cir. 1957).
108
contemnors were not prejudiced by the delay in adjudication
because they were defense attorneys (and as such presumably
aware that their conduct subjected them to criminal contempt
penalties), and they were repeatedly warned that their conduct
138/
was contemptuous. The Court also relied on the fact that
there the exigencies of trial and fairness to defendants
required deferral of adjudication since if contemnors had
been subjected to summary punishment mid-trial, the defendants
would either have been deprived of attorneys or, at the least,
prejudiced by the jury's knowledge that counsel had been charged 13 9/
with contempt.
138/ indeed the contempt citation, which appears at 182 F.2d
416, 430 (2nd Cir. 1950), reveals that the court not only warned
the contemnors in specific terms but made actual findings or
adjudications of contempt in the course of the trial See
e^g., 182 F.2d at 446, 451, 452, 453.
13_9/ other cases upholding deferred adjudication of direct
contempt have relied on facts indicating that the delay caused
no prejudice to contemnors and was required in the interests
of fairness to defendants. See United States v, Galante. 298
F-2d 72 (2d Cir. 1962) (upholds contempt convictions and 20-day
sentences after declaration of mistrial relying on fact that
specific warnings had been given throughout the trial); United
|_t,ates v. Schiffer, 351 F.2d 91 (6th Cir. 1965), cert denied,
384 U.S. 1003 (1966) (upholds contempt conviction and 60-day
sentence of defendant's attorney at close of trial on grounds
that (1) there was no prejudice because the misconduct was
clearly contemptuous and any lawyer would have understood the
court s warnings; (2) deferral was justified because summary
action during the trial might have prejudiced the defendant,
delayed the trial or caused a mistrial); In re Osborne, 344 F.2d
611 (9th Cir. 1965) (contemnor was defendant's attorney; court
held that fairness to defendant required deferral to end of
1-2-day trial); Shibley v. United States. 236 F.2d 2 38 (9th Cir.)
cert denied, 352 U.S. 873 (1956) (upheld delay until after
verdict where contemnor was attorney and had been specifically
warned conduct was contemptuous).
109
In the instant case it is clear that appellant was
prejudiced by the delay in adjudication. He was a layman
not in fact represented by counsel (whether or not he was
denied his right to counsel). He was given no adequate
warning at any point as to what constituted contempt in
general or as to when his specific conduct could subject
him to criminal contempt penalties. And, at the close of
trial, he was subjected not just to one general sentence for
contemptuous conduct (which under Bloom v. Illinois, supra,
would have been limited to six months) but to 16 consecutive
140/
three-month sentences. Had appellant instead been immediately
cited for contempt upon each of his alleged acts of misconduct
and, if not sentenced on the spot at least warned what penalty
could subsequently be imposed, he would have learned what
constituted contempt and that his actions were subjecting him
141/
to multiple penalties. Thus in a real sense the manner in
which the court chose to proceed may have induced further acts
of contempt.
In the instant case it is also clear that what the Sacher
court called the "exigencies of the trial" — primarily
involving considerations of fairness to the defendants — did
nofc justify deferral of action. Appellant was a defendant,
2-40/ The Sacher contemnors were given concurrent penalties up
to a maximum of only 6 months for their separate contempt
convictions, 182 F.2d at 418.
1 4 1 / if criminal penalties are subsequently to be imposed due
process requires either immediate citation or, at the least,
specific warning that such penalties will be forthcoming.See Argument VII, pp. 137-51, infra.
110
not a defense attorney, and since he was in custody and
additionally denied the right to speak, punishment for contempt
could not have prejudiced his ability to present a defense.
Nor could a contempt citation or sentence have possibly damaged
appellant's standing in the eyes of the jury any further: the
trial judge had frequently threatened and insulted appellant
in the jury's presence, and appellant was bound and gagged
before them. Finally, since the jury was constantly being sent
out of the room (and indeed was excluded during many of the
alleged contempts), there was ample opportunity to specifically
warn appellant that he would be subject to criminal contempt
penalties without the jury's knowledge.
Ill
V.
ASSUMING IT WAS PROPER TO PROCEED UNDER
RULE 42(a), APPELLANT WAS AT LEAST ENTITLED
TO SOME HEARING AND THE COURT BELOW ERRED
IN (A) DENYING HIM ANY OPPORTUNITY TO PRE
SENT EVIDENCE OR ARGUMENT GOING TO GUILT,
AND (B) DENYING HIM AN ADEQUATE SENTENCING
HEARING, INCLUDING THE RIGHT TO REPRESENTATION BY RETAINED COUNSEL.
Even if it was proper for the trial judge to have
proceeded under F. R. Crim. P. 42(a), appellant was entitled
to some sort of rudimentary hearing, including at least the
opportunity to present evidence and argument going to guilt
142/
and penalty, and representation by retained counsel.
Here appellant was denied any hearing whatsoever on the
issue of quilt. The court specifically found and adjudged him
guilty without allowing him to speak and before even reading
a description of the 16 different allegedly contemptuous acts.
(TR 5411, 5415) Appellant was then provided an opportunity to
speak only to the issue of penalty. (TR 5475-78)
Additionally, no adequate sentencing hearing was provided
since appellant was denied the right to representation by
retained counsel of his choice. After adjudging appellant
guilty, the court asked Kunstler whether he had anything to say
^42/ whether or not the court is obliged to appoint counsel,
certainly a contemnor should have an absolute right to repre
sentation by retained counsel. See, e.g., Reynolds v.
Cochran, 365 U.S. 525, 531 (1961); Chandler v. Fretag, 348
U.S. 3 (1954); In re Gault, 387 U.S. 1, 29 (1967); Hendrix
v. City of Seattle. 456 P.2d 696 (Wash. Sup. Ct. 1969).
112
with respect to punishment, but Kunstler refused to say anything
on Seale's behalf on the ground that he was not Seale's lawyer.
(TR 5475-78) Appellant was then told he could speak but was
not told how to proceed or what factors the court might deem
relevant. He spoke generally and was sentenced*.... (TR 5478->Sl$
We have shown in Argument IA,. supra, that appellant was
illegally denied the right to be represented by counsel of his
choice at trial; and it follows plainly, for the reasons thare stated, th;
he was also denied counsel in his contempt proceeding— a right
which even the court below recognized he was entitled to. But
wholly apart from the issue of Seale's right to counsel during
was without representation at the contempt proceed
ing and was entitled to a continuance of that proceeding so
that he could be represented by counsel of his choice, since
in light of the declaration of mistrial and severance, a con
tinuance would in no way have delayed the trial proceedings.
It may once have been thought legitimate summarily to
punish certain in-court contempts without providing any hearing
whatsoever, but the Supreme Court's holding in Bloom v. Illinois,
supra, that criminal contempt constitutes a crime like any other,
requiring similar procedural safeguards, mandates reconsidera
tion of this view. And recent Supreme Court decisions holding
due process safeguards, including the right to counsel,
1.43/applicable to a variety of sentencing proceedings make it clear
143/ See, e.g., Specht v. Patterson. 386 U.S. 608 (1967); Mempa
v. Rhay, 389 U.S. 128 (1967); Chewning v. Cunningham. 368 U.S.
443 (1962); Reynolds v. Cochran, 365 U.S. 525 (1961); Williams Vj_...New York, 337 U.S. 241 (1949) (dictum); Moore v. Michigan'.
355 U.S. 155 (1957); Townsend v. Burke, 334 U.S. 736 (1948).
- 113 -
that appellant was at least entitled to representation by
counsel with regard to his sentence.
A number of recent cases have found a right to a rudimen
tary hearing, including representation by counsel, even in
cases of in-court contempt. Thus in Ungar v. Sarafite. supra
the Court assumed, without deciding, that some hearing was
required and upheld the conviction on the grounds that the
hearing provided satisfied the due process requirements of
notice, opportunity to defend or mitigate, representation by
1 4 4 /counsel, and opportunity to call witnesses. in Holt v .
v ^rginia, 381 U.S. 131 (1965), the Supreme Court ruled that:
. . . it is settled that due process and the
Sixth Amendment guarantee a defendant charged
with contempt such as this [in—court refusal to
answer questions] "an opportunity to be heard
in defense a right to his day in court— .
and to be represented by counsel."145/
~ ^ / 376 U.S. at 589 and n» 9. The due process
of a contempt hearing had been similarly defined
ln„re Oliver, 333 U.S. 257 (1948), and Cooke v. 267 U.S. 517 (1925). ---------
requirements
in, e.cr. ,
United States,
381 u . S . at 136, citing In re Oliver. 333 U.S. 257 (1948)
In Johnson v. United States, 344 F.2d 401 (5th Cir. 1965)
the court reversed a contempt conviction and sentence imposed
witness mid-trial, pursuant to Rule 42(a), on the ground
tnat the contemnor had not been represented by counsel And
Appeal of the S.E.C., 226 F.2d 501, 520 (6th Cir. 1955)
r-(^n??Urt fever?®d a mid-trial judgment of summary contempt resulting in a 60-day sentence, ruling specifically that the
contemnor had a right to counsel. See also In re Williams.
52 S.E.2d 317 (N.C. Sup. Ct. 1967); Cardona v. Perez. 280
,Sup?:2d ?13 (APP* Div* lst Dept. 1967); Spencer v. Dixon. 248 La. 604, 181 So. 2d 41 (1965). -------------
114
Even assuming, .arguendo, that minor penalties can be
summarily imposed for in-court contempt without arvy hearing,
it is at least clear, under the rule established in Bloom.
J2U£ra, that no serious penalty can be imposed without providing
essential guarantees including right to c o u n s e l ! ^ See Nelson
v^Jiolzman, 300 F. Supp. 201 (D. Ore. 1969), involving a summary
conviction for direct contempt, where the court held that the
Supreme Court's decisions in Bloom, Cheff and Duncan required
representation by counsel where penalties in excess of six
months were involved, but not in a case involving a petty
penalty (a five-month term had been imposed)
.145/ (Continued)
(7th ,6X rel' Robson v - Malone. 412 F.2<3 848
lilted f P— t c ? rk u e ^ la; raised an issue as to whether tho-i r v-irrt-t- .had been denied. r rneir right to counsel
1^6/ In Bloom the Court found the right to trial bv iurv to
be such an essential safeguard. While the right to iurj trial
least ^ k S S S - 1 C ^ n L T i ^ L ^ ^ u ^ S "least m situations where Bloom would require a jury trial.
112/ There is no question that the sentences imposed in a
i n % emL «
£ = £ E k determines ̂ ight t o ^ / a / ^
constitutes oonten.pt, whether to prosecute? a ^ / o / w h l t
c S S « l ° L q u l ? e f s t i n fddit/ " ' P r i d i n g a contemnor with
p r o v i d i n / r / S t f a 11: / / 3"/?,1!3.1' “ <I in— than
115
Finally, it is clean that the factual circumstances of
certain direct contempts require that a contemnor be provided
some opportunity to offer evidence going to criminal intent and
X W
mitigation of penalty. in this case fairness demanded that
appellant be provided an opportunity to present evidence and
argument going both to guilt and to penalty. There may be
cases of obvious misconduct such as physical violence by a
defendant or spectator where the likelihood of justifying cir
cumstances is sufficiently minimal that summary adjudication
and punishment can be justified. But here, as noted, supra
pp. 106-07, evidence outside the record was obviously essen
tial to determine whether appellant had been engaged, as the
court believed, in a deliberate scheme to subvert the admin
istration of justice, or whether he was sincerely attempting to
raise and preserve Sixth Amendment objections. Such evidence
147/ (Continued)
Moreover, even if appellant's 16 three—month sentences are
considered separately rather than aggregated, he was entitled to
representation by counsel. The Supreme Court may have drawn the
line at six months in determining right to jury trial in contempt
cases, but this does not mean the same line should be drawn to
determine when the more basic and easily furnished protection of
representation by counsel should be provided. There is increas
ing acceptance of the notion that a criminal defendant has a
right to counsel whenever his liberty is at stake. Certainly
this should be true in the area of contempt where virtually
nothing else stands between the contemnor and the exercise of arbitrary power.
112/ See, e ^ . , In re Oliver, 333 U.S. 257 (1957); Panico v .
——,1/l*! 2_ta_̂ es_, supra P-105 * Rollerson v. United States, supra
P* 105 7 Widger v. United States, supra p. 1Q8 ; Offutt~~v.
— ■-|p -a States> supra pp. 107-08; Sacher v. United States, supra
116
would have been relevant both to criminal intent, and therefore
guilt, and to punishment.
It is clear also that representation by counsel at
sentencing was essential to appellant. Charged with 16 different
incidents of alleged misconduct spread over the course of
149/
six weeks, he could not possibly have been expected to
realize simply from the court's oral reading of the citation
150/exactly what misconduct he had been charged with, or to present
to the court factors relevant to its determination of the
appropriate penalty for each charge, particularly since he
was clearly stunned at the court's sudden action and confused
as to what the court had done and for what purpose he was
being allowed to speak. Moreover, his misconduct did not
involve simple disobedience to clearly legitimate orders,
or obviously unjustified physical violence, but rather
constituted a course of conduct intricately tied to complex
legal issues involving the right to
l.4 9 / The contempt charges were grounded not only on the material
quoted in the 52-page contempt citation but on the 5484-page record of the trial.
H P / in this connection, it is important to note that each
specification of contempt set forth in the trial judge's Certificate
consists simply of an excerpt from the transcript containing
exchanges between the court and appellant (and sometimes
others). The excerpts are often quite lengthy. Nowhere
does the judge state specifically what part of the exchanges
is deemed contemptuous, or upon what theory of contempt.
117
counsel and the right to present one's own defense. As a
layman who was in fact not represented by counsel throughout
the trial he could not possibly have been expected to under
stand what facts unknown to the court might be relevant to, 152/penalty on each of the 16 contempt charges.
151/ The usefulness of representation is illustrated by the fact
that during the contempt proceedings at the close of Seale's
co-defendants' trial, Weinglass persuaded the trial court to
withdraw the 16th specification of contempt against defendant
Hoffman, by pointing out an allegedly contemptous remark by
Hoffman was simply a response in kind to a humorous comment by the court.
118
VI
APPELLANT'S CONDUCT DID NOT
CONSTITUTE CONTEMPT WITHIN
THE SCOPE OF 18 U.S.C. § 401
None of the cited incidents constitutes a violation of
152./18 U.S.C. § 401.
A - Incidents 1,2,4,5,8,9,10,12,13,15 and 16 Were Not
Contemptuous Because Appellant's Remarks Were Neces
sary , or at Least Reasonably Believed Necessary, to
Preserve His Constitutional Claims for Appellate Review.
During trial appellant sought to assert and, if denied, to
preserve for appeal two claims: his right to the assistance of
attorney Garry and his right to represent himself. Appellant
had a legal obligation to first present these matters to the
trial court; complete silence by appellant might well have
1 5 2 /entailed their waiver. Moreover, it was essential not merely
to raise his claims but to present the court with the facts and
arguments as to why they were legitimate. Thus, for the trial
court intelligently to rule on appellant's claims it was essen
tial that it be informed, for example, that Seale had never
agreed to be represented by any attorney other than Garry, and
that he had not known until September 25 that Garry would not be
at trial. But the court, see supra. Argument I, refused to allow
15^/ That section provides in pertinent part: "A court of the
United States shall have power to punish by fine or imprison
ment, at its discretion, such contempt of its authority, and
none other, as (1) Misbehavior of any person in its presence
or so near thereto as to obstruct the administration of justice."
1 5 3 / United States v. Denno, 313 F.2d 457 (2nd Cir. 1963); Argument
I , supra.
119
any inquiry into such facts. For appellant to get those essen
tial facts on the record he had to defy the trial court's
attempts to silence him.
Appellant's objections and requests were relevant whenever
some statement or action on his behalf was appropriate. The
first cited incident consisted solely of his reading of his
September 26 motion firing his attorneys of record other than
Garry and asking for a continuance. Compare Holt v. Virginia,
381 U.S. 131 (1965).
The trial court could, of course, have easily obviated the
need for repetition of objections and requests by ruling that,
once denied, they need not be repeated at every relevant 154/
juncture. However, it took a firm position that all objections
to be repeated at every relevant occasion if they were to be
preserved. This was evident from the very first day of the trial
when Weinglass sought to object to certain prosecution evidence
on the ground that no foundation had been laid, an objection
which the court had already rejected:
MR. WEINGLASS: To avoid repetition, may I have
a standing objection.
THE COURT: I don't deal in standing objec
tions on anything.
MR. WEINGLASS: I will state my objection once
again.
THE COURT: Every time you have an objection
you make it, and every time you
make one, I will rule on it. I
might sustain it, too. (TR 113)
Thereafter defense counsel repeated previously rejected objec—
155/
tions throughout the trial. However, when appellant renewed
154/ Compare, e.g., f . R. Civ. P. 46.
155/ See, e ^. , TR 516, 524-25, 529, 841, 1090-91, 1270, 1454,
2129, 2162, 2490, 2493, 2898, 3009, 3014, 3399, 3771, 5312-19.
his objections and requests at appropriate points, the court
abruptly silenced him without ever indicating why it was improper
for him to renew his claims. The court, moreover,
reacted differently to appellant's remarks and requests, at
times ignoring them, at times responding to them with a colloquy
and a ruling, and at times denying appellant had any right to
156./speak and issuing some sort of threat.
Appellant was thus confronted with a dilemma.
The court's direction that objections be repeated was quite
explicit and uniformly applied; the court's opposition to appel
lant's remarks was to be gleaned from a series of erratic ad
hoc orders. Appellant had ample reason to doubt whether the
court's erratic hostility to his remarks would be treated as an
excuse for his failing to renew his claims. And appellant's
fears in this regard were aggravated by the trial court's and
the prosecution's continual assertions that he was represented
by Kunstler and therefore that he had in effect waived his Sixth
Amendment rights, and their overt attempts to coerce an
152/explicit waiver of those rights.
Given the dilemma posed by the trial judge's actions,
158/appellant reasonably concluded that he had to renew his claims,
156/ See pp. 148-49 , infra.
157/ See infra, pp. 161-63 and n. 230.
158/ Accordingly, he asked to cross-examine seven witnesses
whose testimony he felt was relevant to the charges against
him (TR 1994, 3252, 4607, 4719, 4798, 4930, 5068, 5233,
121
and the eleven above-cited incidents arose from such 159/renewals.
Nothing illustrates this more plainly than the United
States Attorney's concession, on the 24th day of the trial,
after 13 of the 16 alleged contempts had occurred, that appel
lant's previous attempts to raise his Sixth Amendment objections
might have been justified:
158/ (Continued)
5289, 5406), asked to examine various materials made available
to his co-defendants' attorneys (TR 1486-88, 5362), made a
number of other objections (see, e.g., TR 3599, 4342, 5356),
and asked to speak during discussions concerning his right
to counsel and right to represent himself (TR 698, 3534, 3959,
4762), and spoke up when the court or prosecution asserted
that Runstier was his attorney, lest his silence be construed
as assent (TR 2204, 3959, 4607-17).
.159/ Incidents 1 (quoted remark is part of written motion
seeking a continuance and firing all attorneys but Garry)
(Record on Appeal, item 47); 2 (denies he has an attorney
after the court says he has one; silence might have consti
tuted a waiver or at least a concession of the accuracy of the
court's remarks) (TR 2204-06); 4 (claims jury prejudiced and
asks to represent himself) (TR 3145-49; see also TR 3121-44);
5 (asks to comment on prosecution arguments concerning Kunstler's
motion to withdraw) (TR 3534-36); 8 (asks to speak to defend
himself) (TR 4217-22); 9 (objects to testimony about his activi
ties by prosecution witness because Garry absent) (TR 4342-46);
10 (asks to cross-examine prosecution witness) (TR 4607-17);
13 (seeks to reply to prosecution argument that Kunstler is his
lawyer) (TR 4752-69); 15 (asks to cross-examine prosecution
witness) (TR 4930-34): 16 (asks to cross-examine prosecution witness
(TR 5404-06); 12 (asks to cross-examine prosecution witness) (TR4719-28)
Moreover, appellant's conduct in these incidents was
generally limited to renewing his legal claims or arguing
about their denial. Thus on only one occasion--lncident 16—
did appellant actually ask a witness a question. This occurred
only after both Kunstler and Weinglass refused to cross-examine
on his behalf.
122
MR. FORAN: * * * I think, your Honor, that someone
should say what is obvious, that if
there is a valid Sixth Amendment point
in this case— and I do not for a moment
concede that there is— but if there is,
this record is replete with preservation
of that point for appellate review, and
the constant reiteration of it can be
for no valid legal purpose . . . I think
that perhaps my statement, your Honor,
might well be, have your Honor tell
Mr. Seale that if in fact he does have
a valid legal point on that subject,
that it is clearly preserved for the
record, and that that point can be
reviewed by the Circuit Court of Appeals
and by the Supreme Court of the United
States, and there is no need to tell
Mr. Weinglass or Mr. Kunstler that, since
they know it well, but perhaps Mr. Seale
does not know— although the conduct of
the trial--and I want to comment on it,
your Honor. (Emphasis added) (TR 4746)
Later in the day, after appellant had been bound and gagged by
the marshals, the prosecution suggested to the court that if
the court informed appellant that his "objection" was preserved,
he might agree to sit quietly through the trial. Only then did
the court offer appellant any sort of assurance, telling him
that all of his "constitutional and statutory rights have been
160./
and will be preserved in the trial."
160/ TR 4764-65. With regard to the subsequent contempt charges,
these statements were plainly inadequate to make it clear that
further objection was unnecessary. The court's statement that
appellant's "rights" rather than his "objections" had been and
would be preserved seemed a mere reassertion that appellant
was in fact receiving all the rights and privileges accorded
to him by federal law. More fundamentally, it was unreason
able to assume that appellant, five weeks into a trial dominated
by hostile exchanges and at the time enraged by his bonds,
would understand or accept legal advice from the court and the
prosecution which had persecuted him for so many weeks.
123
While as a general rule even invalid court orders must be
obeyed, an essential exception has been recognized by federal
courts where disobedience is, or is reasonably believed to be,
necessary to make or preserve a record for appeal. Ordinary
court orders, if erroneous, are readily remediable on appeal,
but an order which obstructs the making of a record or the pre
sentation of an important right undermines the very appeal
process itself.
l£L/Thus, in Re McConnell the plaintiff's attorney was torn
between the defense counsel's insistence that he ask certain
questions before the jury, as is literally required by F. R.
Civ. P. 43(c), and the trial court's order that he not do so.
This order "placed [plaintiff's] counsel in quite a dilemma
because . . . there was no way of knowing with certainty whether
the court of appeals would treat the trial court's order to dis
pense with questions before the jury as an excuse for his failure
to comply with the Rule." (370 U.S. at 232) Counsel resolved
this dilemma by repeatedly objecting that questions in the
presence of the jury were proper, and even threatening to ask
them unless stopped by a bailiff. For this conduct he was held
in contempt and sentenced to 10 days in jail by the trial court.
I Q / 370 U.S. 230 (1962), decided by this Court sub nom.
Parmalee Transportation Company v. Keeshin. 294 F.2d 310 (7th Cir. 1961).
124
On appeal, this Court reduced the penalty to a $100
fine. While acknowledging a general obligation to seek
"redress in the court of review," this Court held that the
alleged contemnor had a right to make a record to provide a
proper basis for review," and was immune from punishment for
good faith representation of his client until he had been per
mitted to make such a record. This Court reasoned that only
the threat to ask the forbidden questions unless physically
restrained was punishable, and that for it only a very slight
, 1 £ 2 /penalty was appropriate.
The Supreme Court, stressing the dilemma which the
alleged contemnor faced, reasoned that his conduct had not
interfered with the performance of a judicial duty and there
fore reversed the conviction in its entirety. Both this Court
and the Supreme Court agreed that it was irrelevant to their
decision whether plaintiff's counsel was in fact entitled to
ask questions in the presence of the jury, so long as he believed
1fi?/ 294 F.2d 310.
Judge Duffy dissented, urging that any punishment at all was inappropriate:
The attorneys for plaintiff were driven to a
sense of frustration due to the District
Court's rulings on offers of proof. Under
such circumstances, it is understandable
that an attorney might say things which
should not have been said. (294 F 2d at 317)
125
in good faith that he was required to do so (370 U.S. at 232
163 /n. 4; 294 F .2d at 313).
Appellant does not claim any general right to disobey
court orders merely because they may be erroneous or even uncon
stitutional. But fundamental fairness requires that appellant
not be forced to guess at his peril which of two inconsistent
and unreconciled court orders must be obeyed and which may be
disregarded. Since the actions of the court and the prosecu
tion brought into question the availability of "an adequate
, i£5/remedy . . . by way of appeal" for the denial of appellant's
1~ / In Hallm a n v. United States, 182 F.2d 880, 887 (9th Cir.
-u_; / atfcorneY was cited for contempt because, inter alia, he asked a series of similar prejudicial question in the
presence of the jury, even though the trial court repeatedly
ob^ections fco questions. The contemnor urged that before the [court's alleged error in barring the ques-
tions] can be considered elsewhere, the record must be suffi-
ciently explicit to enable a reviewing court to understand
he nature and purpose of the excluded evidence." The court
With this 9eneral proposition of law, but neid it afforded no defense because an adequate record had
been made before the contempt occurred.
V - 0hi°- 360 U -S - 423 U959), the Supreme Court held that a conviction for refusal to answer certain
questions of the Ohio Un-American Activities Commission vio-
lated due process where a witness had first been erroneously
advised by the Commission that he could refuse to answer
incriminating questions, and was thereafter asked such questions
.. Louisiana, 379 U.S. 559 (1964), the Court held
that demonstrators could be barred from the vicinity of a court
house, but held invalid the convictions involved because the
demonstration had at first been permitted by the police and no
valid explanation was given later when the police ordered it to end.
1 ~,/ ̂.^nited States v - Schiffer. 351 F.2d 91, 94 (5th Cir.1965).
- 126 -
\
Sixth Amendment claims, his repeated objections in the above-
cited 11 incidents cannot be punished as contempt.
B. Appellant's Remarks During Incidents 6. 7 and 11
e^e Not Contemptuous Because Those Remarks Were
ggces^ary, or at Least Because Appellant Reason-
Belr Ved Them Necessary, to Present a Defense to the Charcres Being Tried. ------------'—
In addition to this problem about preserving his claims
for review, appellant faced a second and even more excruciating
dilemma. The prosecution and the court consistently maintained
that he was properly represented by Kunstler because the latter
had filed an appearance for him. The clear implication was that
if Kunstler did represent him at trial it would provide further
proof that Seale had waived his rights to Garry and to self
representation. At no time did either the prosecution or the
court suggest that once appellant's claims had been denied,
Kunstler could proceed to act on his behalf without impairing
appellant's right to subsequent review of those denials. Through
no fault of his own, therefore, appellant was put in an impos
sible position, for he was forced to choose between representa
tion by Kunstler, whom he barely knew, whom he did not want,
with whom he had never consulted regarding his defense, and,
most important, whose involvement threatened a loss of appel
lant's claim to representation by Garry or by himself, and
sitting entirely defenseless through a criminal prosecution
which might lead to ten years' imprisonment. Throughout the
trial, appellant vainly pleaded that "someone" had to ask questions
127
for him. it is understandable that appellant felt he had no
choice but to press with increasing persistence for the only
alternative to waiver and defenselessness— self—representation.
Thus, although appellant refrained in general from ques
tioning witnesses, he performed other legal functions on his
own behalf several times. He asked spectators to obey the
167/
court's orders and objected when the prosecution inaccurately
, .. 168/ described a photograph being offered as an exhibit and when
the prosecution misrepresented to the court the content of a
169/statement by appellant to the spectators. The court cited
these actions and the colloquies which ensued therefrom as
usVcontemptuous.
The court had an obligation to make it clear that
unwanted representation could have been accepted without com
promising appellant's claim to self-representation or to a
different attorney. Since the court failed to do so, and
instead implied that acceptance of such representation would
indeed constitute a waiver of constitutional claims, appellant
166/
166/ See, e_̂ g. , TR 3268, 5404-06.
167/ Incident 7, TR 3641-43.
168/ Incident 6, TR 3599-3601.
169/ Incident 11, TR 4632.
170/ Many other such actions and colloquies were not cited.
See, e.g., TR 1665-68, 3951, 4025, 4069-70, 4085, 4269, 4325, 5355.
128
cannot be punished for refusing such representation and
attempting to present his own defense.
C * ggP;* 1^ ' . 3 Remarks During Incidents 3 14
-~-r e N o t Contemptuous Because They ^ 4 --
Inconsequentiai to Have Seriously int e r f p ^
the ^ministration of Justice.
While appellant maintains that none of his conduct
obstructed the performance of a legitimate judicial duty,
these two incidents are so patently trivial as to require
special comment. The third incident occurred during a lengthy
argument about the delusion or removal of black spectators
from the courtroom, and consisted of a ten word statement by
appellant that he agreed with Kunstler that spectators had been
172/
removed because of their race.- The 14th incident occurred
during a lengthy discussion concerning appellant's treatment
by the marshals and the tightness of his bonds, and consisted
of two obviously spontaneous exclamations concerning his extreme
physical discomfort.
The evident spontaneity of the 14th incident negates the
required criminal intent.— The record at the time of the
third incident affords no reason to believe that appellant's
remarks were directed to the court rather than to Kunstler;
171/ TR 2694-2703.
172/ TR 2700, quoted at TR 5418.
TR 4816, quoted incorrectly at TR 5465.
1jt’30i7£ idIey V ~ United 44 F -2d 716, 742-43 (6th Cir.
129
statements intended for the ears of counsel cannot become
contemptuous merely because they are overheard by others in
125/
the courtroom. Most important, in neither of these inci
dents did the trial court take any particular umbrage at or even
notice of appellant's statements at the time. The court's
apparent indifference to the remarks when made is plainly
incompatible with its later assertion that the remarks consti-
l_2.fi/tuted a serious interference with the administration of justice.
D - Neither the Timing Nor the Phrasing of Appellant's
Objections Are Sufficient to Render Those Remarks
Punishable as Contempt.
Upon occasion appellant used strong language during his
discussions with the court, particularly as his sense of
frustration and persecution grew. The judge was upset about
these remarks primarily because he felt personally offended.
But the contempt power was not created to protect judges from
17.?/
insults. "As to such injuries, a judge, in company with all
other public officials, has no greater protection than a private
128/person." * 1
Parmelee Transportation Co. v. Keeshin, 292 F.2d 806,175/ 807 (7th cir. 1961) .------------------- '
176/ Compare ibid.
12Z/ Brown v. United States, 356 U.S. 153, 601; Sacher v.United States, 343 U.S. 1, 5. --------
128/ (Learned Hand, J., dissenting on other grounds, Ex parte
- r a ' 282 Fed. 138, 161 (2nd Cir. 1922)). in Smotherman v.
United States, 186 F.2d 676, 679 (10th Cir. 1950), for example,
the contemnor sent a telegram to the President and other public
officials labeling a temporary restraining order unfair,
130
Frustrated in his desire to represent himself or obtain
the services of Garry, in jeopardy of not being able to
raise those issues on appeal, and without the advice of
counsel as to how to make objections, it is easy to under
stand why appellant came to use rather strong language.
Allowance must also be made for appellant's background and
political views. Many attorneys eschew passion in the court
room, describe the most infamous conduct blandly and presume
that all judicial and prosecutorial acts are beyond reproach.
Appellant,on the other hand, a layman, is the Chairman of
the Black Panther Party which believes that most public
officials, judges and prosecuting attorneys not excluded, are
racially prejudiced. The language he used to describe those
whom he regards as racist (and whose conduct toward him
would have tried any man's patience) may be foreign to many,
but in view of the social unrest which has taken place in
this country, that language is by no means uncommon.
Section 401 does not, and could not consistent with the
1 2 3 ./ (Cont'd)
describing the judge as "a tool of big industrialists, unfit
to continue holding that high office," "a menace to our democracy,
and calling for his removal. Conceding that the remarks were
"vexatious and irritating," the court of appeals nonetheless
reversed the contempt conviction because there was no evidence
that the judge was so lacking in "that strength of character and
judicial fortitude common to the judiciary" that there was a
clear and present danger that he would be intimidated by the
remarks. There was plainly no danger of intimidating the trial
judge in the instant case.
131
First Amendment; allow any court to punish appellant for not
using bland language such as "unconstitutional," "improper"
or "unfair" to describe actions which he in fact believed to
be as racist as segregation. if the federal courts are to
operate consistent with principles of free speech and equal
protection, and are to rule impartially over all parts of
American society, litigants cannot be required while in those
courts to give lip service to any particular political or
social ideology, or to accept the mores and verbal conventions
1 7q/of any particular segment of the population.
Moreover the actions for which appellant was being tried,
whether or not they were or could be made criminal, were
undeniably political in character, and the defendants could
not reasonably be asked to purge themselves at the courtroom
door of the passions stirred by political controversies!^
L2|/ Moreover, it would be impermissible for this Court to
affirm appellant's contempt convictions on the ground that the
terms in which he voiced his objections exceeded the limits of
propriety This is so because the record does not establish
that the district court based its findings of contempt on any
such ground. As we have noted at p. 117 , n. 150 , supra, the
district court never stated the legal grounds upon which its
several specifications were thought contemptuous, and it is
entirely possible that, in that court's view, Seale was to be
punished for his persistence in speaking, regardless of what he
said Since the convictions may rest upon this impermissible
28?Un q qqq ' Stromberg v. California.28,. U.S. 359 (1931); Thomas v. Collins. 323 tt.s sift h q a ^ .
Bachellar v. Maryland. 38 U.S.L.Wk. 4316 (1970).
feS' ^2*' Gregory v. Chicago, 394 U.S. Ill, 139 (1969)
( Snake termed invective "within the general give-and-take of
heated political discussions") (Black, j. concurring); Cafeteria
g_mployees Union v . Angelos, 320 U.S. 293, 2 95 (1943) (charge of
fascism" a constitutionally protected example of the "loose
language or undefined slogans that are part of the conventional
9five—an<3—take in our economic and political controversies") .
132
On the contrary, those passions were further enflamed by the
very initiation of the prosecution at issue, by the provocatory
actions of the prosecution, trial court and marshalls and by
the abusive language that has regrettably been directed by high
public officials at persons of appellant's political persuasions.
Perhaps a stoical defendant with infinite patience might have
managed to sit mute throughout such a trial, confidently trusting
in Divine Providence and the federal appellate courts, but such
impeccable restraint cannot be required of ordinary men,
especially those untutored in the law and unrepresented by
counsel.
The trial court incorporated into the certificate of
contempt several comments concerning appellant's actions,
none of which can afford any support for the finding of contempt.
The court asserted that a reading of the record did not reflect
„ ̂ , 1 fl?/the true intensity and extent of the disruptions." The court
faiie(i' however, to specify that appellant had shouted, made
faces or done anything else in particular. Such vague and
obviously unreviewable assertions cannot support a finding of
contempt.
The certificate further charges that some of the incidents
"were accompanied by physical violence." The court does not
indicate whether it is referring to violence by appellant, by
the other defendants, or by the marshals. The court did not
1§2/ See infra, pp. 155-67.
182/ TR 5414-15.
133
indicate at what point in the trial the alleged violence
occurred, and neither the court nor government attorneys,
who were constantly describing the defendants' actions for
the record, ever remarked that appellant had been violent.
The certificate also contains a number of vague conclusory
remarks, such as that each particular incident was a "willful
attack upon the administration of justice in an attempt to
sabotage the functioning of the federal judicial system . . .
[and] of so grave a character as to continually disrupt the
183/administration of justice." Inasmuch as the court refers to
no specific off-the-record events to support these statements,
they constitute no more than a conclusory interpretation of
the occurrences shown by the transcript. In view of this
Court's obligation to review contempt cases with care, that
interpretation is entitled to no special consideration. This
is particularly true since we have no idea what the trial
court regarded as a grave disruption of the orderly administra
tion of justice, and the trivial incidents, such as the first
and third cited, which the court put in this category demonstrates
that .the standard applied, if any, was far from reasonable.
183/ TR 5411.
134
Consistent with its 121/past practices, therefore, this
Court should in considering the evidence supporting appellant's
convictions limit itself to events of record.
E . Conclusion
The purpose of § 401 has traditionally been limited to
assisting the administration of justice by punishing significant
184/ General allegations of wrongdoing have traditionally
been disregarded in reviewing contempt appeals. In Parmelee
Transportation Co. v. Keeshin. supra. 294 F.2d at 314, the
defendant was cited, inter alia, for a bad tone of voice, an
attitude of contempt, and defying court orders. This Court
overturned this part of the conviction, arguing that it con
tained mere conclusions rather than facts, that it was too
general to permit the defendant to answer, and that this Court
was not to be required to scour the record for evidence to
support an allegation which did not refer to particular parts
of the record. In Great Lakes Screw Corp. v. N.L.R.B.. 409
F.2d 375, 379 (1969), this Court reiterated that:
[i]n reviewing judicial contempt orders, this
circuit and others have espoused the view that
mere conclusions of contempt, unsupported by
specific facts or supporting citations to the
record, carry no weight. The reason for this
view is that the recitation of mere conclusions
without a showing of the facts upon which the
alleged contempt rests makes informed appellate
review most difficult if not impossible.
See also Tauber v. Gordon. 350 F.2d 843 (3rd Cir. 1965);
Urvited States v. Galante. 298 F.2d 72 (2nd Cir. 1962); In
re Hallinan. 459 P.2d 255 (Cal. 1969).
135
interference with the performance of legitimate judicial
duties. The mere fact that the court's directions or desires
were disregarded is not sufficient ground for contempt. If
the disobedience has no significant impact on the administra
tion of justice, or if obedience would serve no purpose other
than to deprive a party of a fair trial or the possibility
Ox adequate appellate review, the statute is not violated.
In view of the special facts of this case, appellant's conduct
is not punishable as contempt.
1- ~ ( u fee' ^2.*' Ex Parte Hudgings. 249 U.S. 378, 383 (1919)-
States ex rel- Robson v. Malone. 412 F.2d 848 (7th Cir.
136
VII
APPELLANT'S CONVICTION VIOLATES DUE PROCESS
BECAUSE HE WAS NOT ADEQUATELY WARNED THAT
HIS CONDUCT WOULD BE CRIMINALLY PUNISHED.
A potential contemnor must be warned by the trial court
that certain kinds of conduct will be subject to criminal con
tempt penalties before such penalties can be imposed. In
Illinois v, Allen, 38 U.S.L. Wk. 4247, 4249 (1970), where the
Supreme Court held that an unruly defendant might be removed
from his own trial, the Court explained that such a defendant
must first be "warned by the judge that he will be removed if
186/
he continues his disruptive behavior." And the Ninth Circuit
has required "prior positive notification that a criminal [con-
187/
tempt] penalty might be imposed. . . .
18&/ Mr. Justice Brennan, concurring, cautioned that "no action
against an unruly defendant is permissible except after he has
been fully and fairly informed that his conduct is wrong and
intolerable and warned of the possible consequences of continued
misbehavior." (Id_. at 4251; emphasis added)
187/ Daschbach v. United States, 254 F.2d 687, 691 (9th Cir.
1958); Yates v. United States, 227 F.2d 848 (9th Cir. 1958).
In both, the Ninth Circuit reversed because of the absence or
inadequacy of warnings that defendant's conduct would subject
him to criminal contempt penalties. See also, In re Hallinan,
459 P.2d 255 (Cal. 1969). The standard for warnings to attorneys
may be somewhat lower. See United States v. Schiffer, 351 F.2d
91 (6th Cir. 1965).
The Sixth Circuit has said that warnings in contempt cases
are "desirable." The Second and Ninth have pointed out that a
judge might mislead a contemnor by neither noting nor punishing
his conduct when it occurs. United States v. Schiffer, supra,
351 F.2d at 95; United States v. Dennis, 183 F.2d 201 (2nd Cir.
1950); Yates, supra.
137
There are several reasons why such warnings are necessary.
The first is the vagueness of 18 U.S.C. § 401(1), which
describes the conduct prohibited as contempt in only the broad-
188/est of terms— "misbehavior in the presence of a court."
Since § 401(1) necessarily touches upon and limits the exercise
187/ (Continued)
For cases where warnings were given, see, e.g., Sacher
v. United States, 343 U.S. 1, 10-11 (1952); 182 F.2d 416,
429, 459 (2nd Cir. 1950); United States v. Green, 176 F.2d
169 (2nd Cir.), cert, denied, 338 U.S. 851 (1949); Offutt v .
United States, 348 U.S. 11, 12 (1954); United States v. Dennis,
183 F .2d 201, 224 (2nd Cir. 1950); United States v. Sternman,
415 F.2d 1165, 1167, 1170 (6th Cir. 1969); In re Atterbury,
316 F .2d 106, 107 (6th Cir. 1963); Wong Gim Yinq v. United
S t a t e s , 231 F .2d 776, 778 (D.C. Cir. 1956); Appeal of the
United States Securities and Exchange Commission, 226 F.2d 501
(6th Cir. 1955); United States v. Bollenbach, 125 F.2d 458
(2nd Cir. 1942); United States v. Bradt, 294 F.2d 879 (6th Cir.
1961); Brown v. United States, 356 U.S. 148 (1958); Johnson v.
United States, 344 F.2d 401 (5th Cir. 1965); Shibley v. United
.States, 236 F . 2d 238 (9th Cir. 1956), cert. denied, 352 U.S. 922
(!956); United States v. Piccolo, 395 F. Supp. 955 (D. Conn.
1967); United States v. Rinieri, 308 F.2d 24 (2nd Cir. 1962), cert, denied, 371 U.S. 935 (1962).
1 3 8 / The term "misbehavior " provides as little guidance for
action as do phrases such as "injurious to public morals and
"prejudicial to the best interests of the people)1 both of which
have been ruled unconstitutionally vague. Musser v. Utah, 223
P •2d 193 (1950); Gelling v. Texas, 343 U.S. 960 (1952). In the
absence of a clarifying warning this language appears to forbid
the "doing of an act in terms so vague that men of common intel
ligence must necessarily guess at its meaning and differ as to
its application and thus to violate the first essential of due
process." Connally v. General Const. Co., 269 U.S. 385, 391
(1926).
Moreover, the gloss commonly placed on § 401(1), that it
applies only to misbehavior which obstructs the administration
of justice, does not add appreciable clarity. Assuming one
can decide what is meant by the rather vague phrase "obstruc
tion of the administration of justicd', it is still necessary
to decide whether an obstruction is misbehavior, as opposed
to normal, unavoidable, or constitutionally protected behavior.
138
rights to counsel, to confront witnesses, to a public trial,
and to free speech, clarity is particularly important lest those
1£2/
rights be chilled into disuse. Clarity is also essential in
a contempt statute because of the absence of procedural pro
tections in the contempt area and the resulting potential for
arbitrary action. Finally, the broad review power accorded
federal appellate courts in contempt cases cannot intelligently
be exercised without a reasonably precise standard of quilt
190/
and innocence.
In issuing such warnings, a judge, in his role as governor
of the trial, announces rules of conduct which he intends to
191/
enforce at that particular proceeding. Clarity in those
rules, constitutionally required at both administrative proceed
ings, Raley v. Ohio, 360 U.S. 423 (1959), and street meetings,
of several important constitutional rights, including the
IBS'' Compare N.A.A.C.P. v. Button, 371 U.S. 415, 432 (1963);
Smith v. California. 361 U.S. 147, 150-51 (1959).
190/ Green v. United States, 356 U.S. 165 (1957); Note, 109
U. Pa. L. Rev. 67, 80 and n. 72 (1960).
i2l/ A judge need not wait for an actual incident to issue
such warnings or lay down particular rules of conduct; he may
do so at the commencement of the trial if he feels such action
is warranted. In many cases the sort of behavior most likely
to seriously impair a trial, such as assaulting a judge or
prosecutor, attempting to influence a juror, perjury, threaten
ing a witness, stealing or altering court records, and eaves
dropping on the deliberations of a jury, is a clearly defined
statutory crime which requires no special warning. See 18
U.S.C. §§ 111, 1114, 1503, 1504, 1506, 1508, 1621, 1622.
-139
Cox v. Louisiana, 379 U.S. 559, 568-73 (1965), is particularly
appropriate at such a formal proceeding as a trial. in this
respect direct contempt under § 401(1) resembles indirect con
tempt for violation of a court order under § 401(3); in the
latter case the court order establishes a particular rule which
a party must obey, and the statute provides authority to punish
violations only so long as the enjoined party knew of the order
192/
and understood it.
Even were § 401(1) crystal clear, however, warnings would
still be required since they may suffice to control and deter
misconduct. Section 401(1) cannot be applied to all instances
of technical contempt; the contempt power can only be invoked
193/as a last resort, when other less drastic methods have failed.
Moreover, precisely because other methods are available, a
potential contemnor has no way of knowing, without some indica
tion from the judge, whether the consequences of his continued
192/ In Longshoreman's Asso. v. Marine Trade Asso., 389 U.S.
64, 79 (1967), the court, reversing a contempt conviction for
violating an injunction, explained:
The judicial contempt power is a potent weapon.
When it is founded upon a decree too vague to
be understood, it can be a deadly one. . . .
We do not deal here with a violation of a court
order by one who fully understands its meaning
but chooses to ignore its mandate. We deal
instead with acts alleged to violate a decree
that can only be described as unintelligible.
The most fundamental postulates of our legal
order forbid the imposition of a penalty for
disobeying a command that defies comprehension.
See Green v. United States, supra.
193/ In re Michael, 326 U.S. 224, 227 (1945); Shillitani v.
United States, 3~5̂ U.S. 364 (1966).
140
misbehavior will be physical restraints, exclusion from the
courtroom, civil or criminal contempt. Compare Illinois v .
Allen, supra.
Tbe twelve statements by the trial court to appellant
which _^ght plausibly be described as warnings are set out
below.
1 3 4 / (1) October 8, the court stated:
(2)
but ! fc? 3 y t0 dlsre9ard ^ e incident1 sha11 deal appropriately in due course with the incident. (TR 1409-1410)
On October 20, the following occurred:
THE COURT: Mr. Seale, I must admonish you that
ny outburst such as you have just indulged in
w i n be appropriately dealt with at the right time
again5 th<? trial and 1 must order you not to do it
MR. SEALE: In other words, Judge _
THE COURT: If you do, you do it at your own risk,bJ.iT •
MR. SEALE: In other words, you are saying you are
on1;h ^ fc? / U ̂mS in contemPfc °f court for speaking on behalf of myself? y
M R 3 * Se a l e ’ t ' " h V 10> argue with i'ou- Mr- Marshal:
I b e I l e a r y ° Ur S a y in g to me? 1
Despite this rebuke, appellant pressed his question:
naQi-S * * * *M W S^ ‘ : 1 haVe exPlained to you in the past what the situation was. I was put in jail
aS?naVhrything els<?: N°W Y°U are saYin9 you are
in ilil ? h ^ e in 3fwlf y°U are going to Put me in jail, that s one thing. You are going to put
bJhi?fC°2tempti^f COUrt because 1 am speakingon behalf of myself. y
To which the court replied mysteriously:
THE COURT:
MR. SEALE:
myself, to
I didn't put you there, sir.
Because I am speaking in behalf of
have a right to defend myself.
141
194/ (Continued)
THE COURT: Yes, sir. (TR 3145-49)
It is not clear whether the "there" is "in jail" or "in con
tempt," or something else, or whether the "yes" was a reaffirma
tion of the court's prior statement or an answer to some question
of appellant's. it is not even clear whether the "jail" and "contempt" asked about were civil or criminal.
Appellant was subsequently cited for contempt because of the incident at issue.
(3) On October 20, at the end of the afternoon session
and after the jury had been excused for the day, the court made the following statement:
Gentlemen, I want to say just one word and my
remarks are addressed particularly to Mr. Seale.
Several times during this trial he has disobeyed
the injunction of the Court not to stand and talk
out. I feel that in fairness to him I should
admonish him and his lawyers as well, to the
extent that they have influence over him, that
there is competent authority for dealing with a
defendant who persists in talking out against
the order of the Court and I want Mr. Seale to
know that. (TR 3267-68)
(4) On October 22 the court made the following statements:
Mr. Seale and Mr. Kunstler, your lawyer, I must
admonish you that such outbursts are considered
by the Court to be contemptuous, contumacious,
and will be dealt with appropriately in the future.
* * *
THE COURT: . . . I admonish you, Mr. Seale, that
outbursts such as you have just been guilty of will
be appropriately dealt with at a proper time in the future. (TR 3600-01)
Appellant was subsequently cited for contempt because of the incident at issue.,
(5) On October 22 the court stated:
If you continue with that sort of thing, you may
expect to be punished for it. I warned you right
through this trial and I warn you aqain, sir (TR 3641)
142
194/ (Continued)
Appellant was subsequently cited for contempt because of the incident at issue.
(6) On October 28 the following occurred:
THE COURT: Let the record show that the defendant
Seale keeps on talking without the approval of the
Court and in spite of the admonition of the Court
and in contempt of the Court.
* * *
THE COURT: . . . I admonish you, sir, that you
have a lot of contemptuous conduct against you.
THE COURT: You may sit down. I must admonish
the defendant and his counsel —
MR. SEALE: Counsel ain't got nothing to do withit. I'm my own counsel.
THE COURT: You are not doing very well for yourself. 2
* * *
THE COURT: I am warning you, sir, that the law —
* * *
THE COURT: I am warning you that the Court has
the right to gag you. I don't want to do that.
Under the law you may be gagged and chained to your chair.
* * *
THE COURT: The Court has that right and I —
(TR 4610-4616)
Appellant was subsequently cited for contempt because of the incident at issue.
(7) On October 29 the following occurred:
THE COURT: Let the record show the tone of
Mr. Seale's voice was one of shrieking and pound
ing the table and shouting. That will be dealt
with appropriately at some time in the future * * *
THE COURT: . . . Mr. Seale, I thought with yester
day's admonition of the Court that you would allow
this case to go along and be presented in an orderly way.
* * *
THE COURT: . . . I am telling you now that if you
interrupt these proceedings again, I will take s teps.
* * *
143
194/ (Continued)
THE COURT: If you speak once again while the
jury is in the box and I have to send them out,
we will take such steps as are indicated in the
circumstances. (TR 4634-41)
Appellant was subsequently cited for contempt because of the
incident at issue.
(8) On October 29 the following occurred:
THE COURT: Mr. Seale, I have admonished you pre
viously --
MR. SEALE: I have a right to cross-examine the
witness.
* * *
THE COURT: We are going to recess now, young
man, if you keep this up -- * * *
THE COURT: I will tell you that what I indicated
yesterday might happen to you — (TR 4720-21)
Appellant was subsequently cited for contempt because of the
incident at issue.
(9) On October 29 the court made the following state
ments :
Mr. Seale, do you want to stop or do you want me to
direct the marshal — (TR 4762-63)
Following this incident appellant was bound and gagged.
Appellant was not subsequently cited for contempt because of
the incident at issue.
(10) On October 30, the court addressed appellant in
the following manner:
I would like to get from you, sir, your assurance
as an American citizen that you will not be guilty
of any disruptive act during the continuance of
this trial. May I have that assurance? The alterna
tive you know about, I am sure. You know that if
you continue to be disruptive the Court will have
to deal appropriately with your conduct. (TR 4854) 11
(11) On October 30 the court made the following remark:
144
These statements are deficient in four serious respects.
First, they contain no clear warning that appellant would
be subject to criminal contempt penalties because of his con
duct. On seven occasions the court threatened mysteriously
195/to "deal appropriately" with appellant. Appellant plainly
had no way of knowing what the trial court did, could, or
would consider an "appropriate" manner of dealing with him.
The second time the court issued this rather vague threat,
appellant explicitly asked if he was being threatened with
contempt, but the trial court refused to answer his
194/ (Continued)
I must tell you, sir, that time is running out.
If you are going to persist in this sort of thing,
the Court will have to deal appropriately with your
conduct. (TR 4933)
Appellant was subsequently cited for contempt because of the incident at issue.
(12) On November 3 the court made the following remarks:
You have been cautioned with as much force as I have.
* * * *
If you continue, I shall have to deal appropriately
with the situation. (TR 5069-70)
Appellant was not subsequently cited for contempt because of
the incident at issue.
19§/ Nos. 1, 2, 4, 7, 10, 11, 12, supra, n. 194 . The words
"deal appropriately" cannot have assumed any particu
lar meaning, since the trial court also used the same phrase
with regard to other court business. See, e.g., TR 1606-08.
145
question. Other such statements by the court are even less197/
informative. Later the court labeled appellant's action as 198/
contemptuous, but did not indicate whether any particular
consequence attached to contemptuous actions.
Since,as noted supra, contemptuous conduct is not neces
sarily subject to criminal contempt sanctions but can be dealt
with by a variety of remedies or overlooked entirely, the
warnings" given appellant were well calculated to convey a
maximum amount of undifferentiated fear with a minimum amount
°f information. The trial court's opaqueness in this regard was
i s y 'manifestly unjustified.
Second, the inadequacy of the purported warnings was
substantially aggravated by the fact that the trial court threat-
200/
ened to direct marshals to bind and gag appellant. The explicit
196/
196/ No. 2, supra, n. 194. see also, TR 4343-44:
THE COURT: Now you just keep on this way and —
MR. SEALE: Keep on what? Keep on what?
THE COURT: Just sit down.
MR. SEALE: Keep on what? Keep on getting denied
my constitutional rights?
THE COURT: Will you be quiet.
197/ See Nos. 3 and 9, supra, n. 194.
198/ TR 3600, 4610.
19^/ Since all but the first statement were made outside the
presence of the jury, a clear warning on the spot could not have prejudiced the jury.
2_0Q/ TR 4616, 4762-63.
146
threats alone would have been sufficient to suggest that this
was what, and indeed all, the court had in mind when it issued
the vaguely worded statements noted above. This impression
was necessarily strengthened when for several days of the trial
appellant was in fact subjected to such restraint. Thereafter
appellant had reason to believe not only that binding and gag
ging would be the only consequence of any future misconduct,
but also that the binding and gagging which he had already
suffered was intended to relieve him of any other consequences
of his earlier actions. In this respect the instant case is
indistinguishable from Yates v. United States. 227 F.2d 848
(9th Cir. 1955), and Daschbach v. United States. 254 F.2d 687
(9th Cir. 1958), where convictions were reversed because in
each case the trial court, before resorting to criminal sanc
tions, had attempted to enforce its orders by civil contempt,
and after doing so failed to caution the contemnors that they
might "yet be subject to a definite penalty for contempt and
that the coercive restraint [was] not intended to relieve
[them] of the punishment for the criminal refusals which [they
had] already uttered." Yates, 227 F.2d at 850-51. The warn
ings given to appellant fell far short of the required "prior
positive notification that a criminal penalty might be imposed
201/m addition to . . . restraint during the progress of the trial."
201/ Daschbach, 254 F .2d at 691—92, nn. 7 and 8. The warnings
held inadequate in Daschbach included the following: ". .
but I do ask the defendant to carefully consider the possible
147
Third, the manner and timing of the purported warnings
necessarily created confusion as to what conduct was impermis
sible. The record indicates that appellant spoke on approximately
202/
56 occasions during the six weeks of his abortive trial. On
at least four of these occasions the trial court explicitly
z o yauthorized him to make a statement. On 13 other occasions the
trial court neither forbade nor otherwise noted appellant's
2 0 4 /
remarks. Thirteen times the trial court responded to a ques
tion or request by appellant without indicating that appellant
2 01/ (Continued)
result of refusing to follow the Court's directions"; "The
Court takes no pleasure in imposing any punishment or any coer
cive measures on any witness or defendant. They came to the
Court knowing full well what the possible or probable result
may be"; " [W]itnesses in any orderly system must abide by the
Court's rulings or, if he chooses not to, he must abide the
consequences that follow thereupon"; "[The witness] has refused
or defied the Court's ruling, and so long as he sees fit to do
so the Court, of course, can only exercise its powers in that
respect during the course of the trial or litigation. What
punishment there may be in addition thereto is another matter
and the Court doesn't indicate that there will or will not be any. . . . "
202/ TR 391-92, 465, 698, 1409, 1486, 1488, 1665-66, 1668, 1994,
2204, 2206, 2700, 3033-34, 3035-37, 3121-48, 3145-49, 3252,
3368-69, 3534-36, 3599-3601, 3638, 3640-41, 3764, 3951-52, 3959,
4025, 4069, 4085, 4218-22, 4269, 4325-26, 4342-46, 4388, 4392-93,
4607-17, 4632-42, 4719-28, 4752, 4762-63, 4766-67, 4767-68,
4798-99, 4814-16, 4845, 4846, 4930-34, 5013-18, 5031-32,
5068-70, 5233-38, 5289-90, 5355, 5356-68, 5359, 5362-64, 5404-07.
The figure is approximate because the decision as to whether two
remarks are part of the same or different incidents is neces
sarily arbitrary to a degree.
203/ TR 391-92, 3033-34, 3121-48, 4760-67.
204/ TR 1488, 2204, 2700, 3638, 3959, 4025, 4269, 4798-99,
4715-16, 4814-16, 4846, 5031-32, 5359.
148
had committed any misconduct by merely uttering the Question
205/
or request. in seventeen instances the court either asked
appellant to be quiet or directed a marshal to quiet him or to
make him sit, without stating that it contemplated doing any-
20$/
thing about those actions at a later time. And on ten
occasions the trial court responded to appellant's conduct by
̂ , 2£/ issuing one of the "warnings" discussed earlier.
This pattern of responses necessarily suggested to appellant
that the only conduct, if any, which the court regarded as ser
ious enough to warrant possible future action was that during
the ten incidents in which some sort of "warning" was issued.
In fact, however, while the trial court ultimately did cite
appellant for contempt because of seven of those incidents, the
, . 208/ court also cited appellant for nine incidents in which no
"warnings" were given, including two incidents which the court
. , 2£2/had not even noted at the time. The court's actions thus
misled appellant not only as to the seriousness of particular
incidents, but also as to their permissibility. Compare Cox v .
205/ TR 698, 1486, 1668, 1994, 3035-37, 3252, 3368-69, 4085,
4325-26, 4388, 5289-90, 5355, 5362-64.
2_06/ TR 465, 1665-66, 2206, 3534-36, 3764, 3951-52, 4069,
4218-22, 4342-46, 4392-93, 4752, 4767-68, 4845, 5013-18, 5233-38, 5356-58, 5404-07.
207/ See supra, n. 194. Remarks Nos. 3 and 10 were not made
with regard to any particular conduct by appellant.
2_08/ The incidents commencing at TR 3, 2206, 2700, 3534, 4217, 4342, 4752, 4814 and 5404.
The remarks at TR 2700 and 4814-16.
149
Louisiana, supra, 379 U.S. at 568-573; Raley v. Ohio, supra.
Fourth, the significance of the court's "warnings" and
the validity of its orders were called into question by its
conduct toward defense and prosecuting attorneys. The court's
hostility towards the defense is described in detail infra, at
pp. 159-65 . Particularly relevant here are threats— both
veiled and explicit— levelled by the trial court at the defense
attorneys for conduct which neither a layman nor a lawyer would
have thought improper: suggesting that the jury was tainted;
21]/alleging prejudice by the judge in a motion to disqualify;
and complaining of an attempt by the prosecution to intimidate
212/
the defense. On the other hand, the trial court consistently
refused to take any action against the United States Attorney
and his assistants when they called the defense attorneys names
in the presence of the jury, and even tried to coerce all the
defendants, but appellant in particular, into waiving their
21_y
Sixth Amendment rights. The court's actions gave appellant
every reason to believe that the rules to which he was subject
arose solely out of the trial court's prejudice against the
defense, and to doubt whether the orders were either valid or
enforceable.
210/ TR* 254.
211/ TR 279-80.
212/ TR* 107. None of these acts were ultimately punished
by the trial court as contemptuous.
213/ See infra, pp. 162-65.
150
All these deficiencies in the "warnings" were compounded
by the absence of appellant's chosen counsel. One of the
reasons why counsel is needed at criminal proceedings is
to advise the defendant as to the procedures and rituals to
be observed, as to which of the court’s orders may be
erroneous, as to whether the erroneous rulings must nonethe
less be obeyed, and as to the probable consequences of
particular acts of disobedience. At least in the absence
of such essential advice, the court must provide clear
warnings before it can impose contempt penalties.
Due process requires that defendant not be punished for
conduct which he was not fairly notified was criminal. Both
the language of § 401(1) and the limitations on its use
create substantial question as to what conduct is punishable
under that provision. The trial court failed in its responsi
bility to make clear to appellant what consequences would be
entailed by what types of actions; its purported warnings were
"far too wavering, confused and cloudy to sustain his conviction."
Scull v. Commonwealth of Virginia. 359 U.S. 344, 353 (1959).
151
VIII
a p p e l l a n t 's c o n v i c t i o n s h o u l d be r e v e r s e d
a n d the c i t a t i o n f o r c o n t e m p t d i s m i s s e d
IN THE INTERESTS OF JUSTICE
Because of the serious and provocative misconduct of the
trial court and the prosecuting attorneys in the instant case,
this Court should exercise its supervisory power to reverse
appellant's convictions and dismiss his contempt charges.
Unlike ordinary criminal charges, the decision to insti
tute contempt charges lies with the federal courts rather than
, . . 214/
with the United States Attorney. Those courts have recognized
that contempts should not be prosecuted when it would be contrary
to the interests of justice. Thus in Ex Parte McLeod. 120 F.
130 (N.D. Ala. 1903), where the alleged contemnor had assaulted
a United States Commissioner, the district court concluded that
although the assault constituted criminal contempt, no contempt
order should issue:
|14/ The United States Attorney can do nor more than file an
application for a Rule 42(a) or 42(b) hearing. A court can
institute contempt proceedings although not requested to do
so by the United States, see, e.g., Appeal of Securities and
Exchange Comm'n., 226 F.2d 501 (6th Cir. 1955), and can refuse
contempt Proceedin9 s even though they are sought
1903)^ United States, Ex Parte McLeod. 120 F. 130 (N.D. Ala.
152
It is not the duty of the court to notice
?V?fyJ.C°?tempt' Man^ c°ntempts may well be left to be rebuked by the good sense of the
people, and the respect they entertain for
the institutions of their country, without
m any way impairing the authority of the
Court. Courts will punish for contempts
only when the ends of justice will be, best
secured thereby. (130 F. at 143)2 ± 5 /
Similarly, in the well-known case of United States v. Barnett
346 F .2d 99 (5th Cir. 1965) the Fifth Circuit decided to
dismiss contempt proceedings against the Governor and Lieutenant
Governor of Mississippi for actions taken two years previously
designed to prevent integration of the University of Mississippi.
The court noted that defendants had ceased to obstruct the court's
orders, and the^Civil Rights Act of 1964 had settled the "law
of the land."
c^he COurp noted that the animosities underlying the assault
S r a b i U ? v “ !\ef: thaa M;Leod,had subsequently seen/he u n d "somp y . 5 bls conduct, and that the assault had occurred
" i t d i l earlier; "under these circumstances," it concluded
t L s ^ t e ' d a t r f ™ 0 ^ 5 ° U rt .th a t an* p u b l i c w i l l f T o l 1 ? 'alqn M_,, date from punishing the offense." 120 F. at 143 See
also Matheson v. H a n n a - S n W i ^ 122 F . 836 (E?D. Pa! llo3) .
216/
— ( Following the Supreme Court's decision that no iurv trial
S L S T S S V S . M a f e t T PrOCeedi^ s- Barnett / u L ted
379 part °£ flajm v ~ citv °f *ocfc B i n .a04- z nr a ' 317 (1964), . . . where the Civil Riahts
^ °f }964 was aPPlied retroactively to abate state sit-in
the effect^f ™aa based on the Purpose of the Act to ‘obliterate held thJt1 f dlstressm g chapter of our history. ' it was
t t e p £ E c S £ l £ ? ' L i T / T t0 be Served in S o n t iS j iS T
appropriate application of restr^ni o f f i c i a l pSweif^e8"
, ose another part of the same chapter." (346 F 2d
m i Leaei mT t n ^ i - s r ^ & tii;
- P o w ^ t o ^ ^ ^
153
The decision by a United States district court to insti
tute criminal contempt proceedings must be subject to full review
by the appropriate court of appeals. Compare In re Brown, 346
F.2d 903 (5th Cir. 1965). Decisions to prosecute criminal charges
of any kind have traditionally been subject to careful review
by the highest officials of the branch of the federal government
responsible for bringing such charges.
Thus the prosecution of ordinary criminal offenses by
United States Attorneys is subject to review and control by
the Attorney General. 28 U.S.C. §§519, 547. Similarly, a
recalcitrant congressional witness cannot be tried for contempt
until the full House or Senate has reviewed the alleged mis
conduct, us reported by the offended committee, and has voted
to authorize a contempt proceeding; its decision is in turn
reviewed by a grand jury which must consider the evidence of
218/
contempt before an indictment can be returned. The court
of appeals is the only institution that can review a district
court's decision to institute criminal contempt proceedings and it
would be an extreme anomaly if it did not exercise such power.
2 1 8 / 2 U.S.C. §§192, 194; Kinoy v. District of Columbia, 400
F •2d 761 (D.C. Cir. 1968); Wilson v. United States, 369 F .2d
198 (D.C. Cir. 1966) . In Wils on the court interpreted §§192
and 194 to require "additional scrutiny within the legislative
branch" of a committee's charge of contempt, "a scrutiny that
would at least embrace examining the sufficiency of the statement
°f facts of alleged contempts, and consideration whether
the incident constitutes the kind of wilful contumacy contem
plated by the statute. . . This construction of the statute
does not contemplate an empty ceremony. . . . Congress may
well have felt, in enacting 2 U.S.C. §194, that some sort of
'check' on action by a committee in instituting contempt prosecu
tions is appropriate." 369 F.2d at 204.
154
The review procedures regarded as essential for fairness
within the executive and legislative branches of the government
ought apply, a_ fortiorari, to the judicial branch. Such review
is especially necessary where contempt of court is involved
since the trial judge already possesses such broad power over
potential contemnors. Compare Green v. United States, 356
U.S. 165, 188 (1958). Review of the institution of contempt
proceedings is appropriately made under this Court's super
visory power, which looks beyond the "ascertainment of consti
tutional validity" to ensure the implementation of sound public
policy and "civilized standards of procedure." McNabb v .
United States, 318 U.S. 332, 340-341 (1943) ; La Buy v. Howes Leatht
Company, 352 U.S. 249, 259, 260 (1957); Thomas v. United States,
368 F .2d 941, 964 (5th Cir. 1966).
Therefore, regardless of whether appellant was actually guill
of contempt, the extensive and egregious pattern of misconduct
218/ (Continued)
Such witnesses could also be jailed until they answered
the questions at issue or until Congress adjourned. Although
this power, which has been little used for several decades,
was analogous to civil contempt, a vote of the full House or
Senate was required for its exercise. See Watkins v. United
States, 354 U.S. 178, 206-7 (1957); Kilbourn v. Thompson,
103 U.S. 168 (1881).
155
engaged in by the prosecuting attorneys, the trial judge,
and the United States Marshals under the judge's supervision
requires that the charges be dismissed.
United States Attorneys are subject to the standards of
conduct set out in the American Bar Association Code of
Professional Responsibility and the Canons of Professional
Ethics, but their responsibilities are even greater than those219/
of ordinary lawyers. The conduct of the United States Attorney
and his two assistants in the instant case falls far short of
the requisite degree of probity and fairness.
The record reveals a consistent pattern of verbal abuse
by the prosecution directed toward both defendants and their
attorneys, referring to them in a derogatory manner, impugning
their motives, and employing on innumerable occasions unwarranted
220/
abusive langauge. Much of this extremely prejudicial conduct
occurred in the presence of the jury. The prosecution joined
"The United States Attorney is the representative not of
an ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore,
is not that it shall win a case, but that justice shall be
done. As such, he is in a peculiar and very definite sense
the servant of the law, the two-fold arm of which is that
guilty shall not escape nor innocent suffer. He may prosecute
with earnestness and vigor— indeeed, he should do so. But,
while he may strike hard blows, he is not at liberty to strike
foul ones." Berger v. United States. 295 U.S. 78, 88 (1935).
See also Hallinan v. United States. 182 F.2d 880, 888 (9th Cir.
1950)'- United States v, Maresca. 266 F. 713, 717 (S.D. N.Y. 1920).
See, e ,q. , TR 450 (defense proposal "totally frivolous",
"idiotic", "totally ridiculous"); 474 (defense using "showboat
tacticd; one juror present); 614 (Kunstler statement "gross
156
with the court in seeking to force a waiver by appellant
220/ (Cont'd)
impropriety"; jury present); 637 (Kunstler playing "Perrv
Mason"; Jury present) ; 641 (Kunstler act "g?osSy9imn?ooer".
S E T * ! ' “ r °n - • ; ■ welYgo:PL ° ^ ron
"Instead of watching youJsel/o^TV1 1 < r e ”ay to Kunstler,
jury present) - fi-^7 Y°U can stud^ evidence";
in presence of iurv) • not ma-*<:e Personal attack
a w S S S S ? > > r tio n " ’
?oewJ?naias10” (''[TIen years °f “ the S n ^ ^ n s ^ e J " ^
1086-87 (identified defendant " h i d i n ^ b e h ^ d " ^ 1^ 91 jUry present>s=? 4-“S,ssrs-B “ a-s-p&r-is.
M 3 R i K & ! W M £ ^asking "improoer" mL L L esent)/ 1836 (Weinglass "intentionally"
s a - k ) £ “ H r “ • = * ” " r . i ? i : n J a .
s p r tn i»ecause o f ^ t i « pS 2 i l i S ^ g “ ^ ° s s rs Bh; r ? S l S i : a c t ) :
cution i a r - c o ^ l m p ^ " -<K2 W 9 1 (w 3 "”outhPie« " ■ Pr°se-
of "improper" act; jury present)- 2 6 5 8 *nowin9 W 9uiltyoutside" scodp nf esenr; , ^658 (Kunstler question "way
objeciion “ iSi^ulo^" "ourrL ? r Senth 2?°° et Se<5'articles in the newsDaoerc"- d ly routinf for exciting ex parte
making noise to distract iury]Ury Present); 3095-96 (defendants
knowingly makes " g r l s s l l Prefent) ; 3132-37 (Kunstleroonn /TT ■ , -* ly improper question; jury present) •
p r e s e t made “P "°Ut of “h° ^ cloto"? jiry
3500S1(Weinglass^"misstating"9the^a°^d"SiPly''' jUry « « ■ “ *>?
(Kunstler argument “comes out o? l e f t ^ e i d ^ ? PreEent> ; ?604
3790-91 (doubts Kunstler "Seriously Lokiia» f o ? ^ present> ; present); 3918 (Weinglass guilty of "false answers; jury
j S y p ™ ! : ' ti l l P°sition "absolutely^ncredible" ;
- m y "Kunstler Question "qi'ii " • Here we go back on television",ns tier question silly"; jury present); 4741 ("Alice in
157
and the other defendants of their objection that the trial
was held before Garry was able to attend; indeed, the prosecu
tion admitted that it would object that attorneys Tigar,
Roberts, Kennedy and Lefcourt had withdrawn by telegram only
the defense refused to waive any objection to Garry* s
absence. The prosecution also contributed to the atmosphere
of intimidation by constantly suggesting to the court that
the contempt power be used against the defendants and their
counsel.
220/ (Cont'd)
Wonderland" quality to Kunstler statements); 4732 (Weinglass
guilty of "unbelievable misconduct"); 4821 ("Grossest attempt
to corrupt jury" prosecution has ever seen); 4996 (appellant's
constitutional objections "a game"); 5002 (appellant's consti
tutional objections "a ploy"); 5344 (Weinglass statement
"patently ridiculous", "obviously two-faced, phony"); 5400-01
(Kunstler playing "fast and loose").
When the absence of the four attorneys was first noted the
prosecution voiced no objection. (TR* 2) Thereafter Birnbaum
moved that all defendants be allowed to state for the record why
they wanted Garry present. When asked to respond, the United
States Attorney launched into a tirade about the withdrawal of
the four attorneys. (TR * 6-10) When asked by the court to
direct his remarks to Birnbaum's motion, Mr. Foran commented in
_ [I] f the defendants are prepared at this time to represent
to this court that they are satisfied with their counsel in this
case who are present here in this court and they waive any claim
that their Sixth Amendment rights are abridged, then we would
ask the Court not to issue an order to have Mr. Lefcourt, Mr
Kennedy, Mr. Tigar and Mr. Roberts brought in before this court immediately." (TR* 11)
22^/ See TR* 6-17, 84, 103-05, 108, 110-18; TR 641, 3780-82,
For other incidents of improper conduct see, e.g., TR 4607-17
(misrepresenting to court that speech by appellant urging
spectators to keep calm in fact involved incitement to violence).
158
The standard of behavior required of federal district
judges is even higher than that of prosecutors. "The trial
judge has a duty to conduct the trial carefully, patiently,
and impartially. He must be above even the appearance of223/
being partial to the prosecutor." The judge "must remain the
judge, impartial, judicious, and, above all, responsible for
a courtroom atmosphere in which guilt or innocence may be224/
soberly and fairly tested." The harm worked by a trial judge's
misconduct is not limited to the parties immediately involved.
Because the judge holds an important public office his mis
conduct, particularly if left uncorrected, tends to bring
2_25/
into disrepute the entire judicial system.
The record of the instant trial literally abounds with
unjustified caustic remarks by the trial court directed at
2 Herman v. United States. 289 F.2d 362, 365 (5th Cir, 1961).
21 ^ / United States v. Brandt. 196 F.2d 653, 655-56 (2d Cir.1952).
2 s^e generally the Canons of Judicial Ethics; Judge
Wisdom dissenting in United States v. Barnett, supra p.153
159
2 26/
the defendants and their counsel.
On numerous occasions the court took great personal offense
226/ TR* 5
("You let
12-13
me take
(Don1
care
own
don'
yourprotect
■ 85 ("I
prospective
the court
care what
matter
want a
t "waste the time of all of us"); 17
, of my orders and you take care of yours")25 ( I am not interested in your prefatory remark"); 29 ("Oh
please, don't waste my time"); 58 ("You don't even
clients"); 67 ("Don't waste my time on that ")
t want you to add a thing"); 155 (when a black
juror said his wife had once worked for Mr. Foran,
asked "[W]as it domestic service?"); 186 ("I don't
your position is going to be throughout this matter, sir ");
TR 151-5; 177-78 ("[Y]ou are wasting my time."); 261; 267-73-
325; 437; 657-58; 684; 731-32 (Maybe Kunstler will understand
a ruling "when you get as old as I am"); 736-7; 906 ("Oh,
perish the thought, Mr. Weinglass); 1064-5; 1077 ("It doesn't
what you thought"); 1477; 1538; 1546; 1878 ("Do you
star. . .?"); 1961-62; 2201 (defense motion a
diversionary issue"); 2207 ("We know about the Constitution
way out here in the Middlewest, too, Mr. Kunstler. . . .");
2209 ("You haven't anything to say that is important right'
now."); 2674; 3068; 3326; 3327; 3547 (Defense motion "an
utter absurdity"); 3910 ("Oh, aren't you kind."); 4398; 4667-
well, now you are to be Archimedes as well, I suppose
("[T]here are a lot of things you don't seem to
); 4667; 4670 ("I don't know why anybody goes to
if he wants to practice law"); 4731-38; 4807; 4817
("When you begin to keep your word around here that you gave
the court perhaps things can be done"); 4939 ("I don’t need
someone to come here from New York or wherever you come from
to tell me that there is a Constitution in the United States")
5115 ("There you go again on constitutional rights").
68 ("Oh,
4627; 4629
understand'
law school
160
and reacted with great irritation at the most ordinary
statements by counsel or at the most trivial of errorsT^
The trial court on a number of instances abused counsel
even more seriously. It ruled that attorneys from as far
away as Los Angeles and New York had to come to Chicago
merely to withdraw from the case and ordered the arrest of
four attorneys who had not so appeared on the same day as
2* £ L » k T £ i 7 35 ■ <rebukf.for saying "Your honor knows1'); 36
^ after a l l earller rulin? was error, "Will you let me after all of these years conduct this trial?"); 58 (rebuke
for saying remark is for the record); 87-88 (rebuke for
opposing recess "Will you permit me the discretion of deter
mining when the court recesses?. . . we don't permit counsel
rscesS") °96r,(?eb^kerfthe defendant to tel1 UE “ben we should recess ) , 96 (rebuke for saying remark is for the record)-
107 (court takes personal affront at suggestion prosecution
cnarges of contempt are intimidating); 244-48 (court "resents"
charge of partiality); 254 (rebuke for saying ju?y panel
amted) ; TR 31-32 (rebuke for suggesting recess "I don't n<=pd
K l ^ b t a? u hc V i 5t (Ch°Urt Sa*L ° « an- a t ^ t S n t £ £ r ° t e a c h i n g because it makes court lookat fault ); 133; 392-3; 395-7; 434; 453; 468; 539 (rebuke
or suggesting modification of order - "That really is for me
* i h “ d° you want to perform my 1function,+ 564;643 (rebuke for not using lectern); 670 (allega-
686 7 5 3 ^ 4 ^ / tone of voice "is as personal as you can get");
1081- ^ f T askin9 if "we" can excuse the jury ;
t'a^ I q 12/42!! l (rebuke f°r smiling at defendant Davis);(rebuke for using the phrase "beg leave"); 1566- 1741
(rebuke for telling witness to take his time - "And I have
nothing to say about the time, is that it? You are in charcre
are you?"); 1964; 2936-39; 3640-42 (rebukes appellantfor
trying to quiet the spectators); 4499-4500 (defense reference
to possible appeal a "threat" and a "cheap remark")- 4758-60
(court furrous because of charge that Geo?ge Washington was
’■ 8 l 4 : 4830: 4837: 4848-9 (rebukes defendant y en for trying to quiet the specta.tors) ;, 4924-25; 4943-44.
161
that ruling, denied them bond, and permitted them to be
treated as common criminals. The court signed contempt
citations against at least some of these attorneys without
holding any hearing or discussion whatever, and was only
dissuaded at the last moment — possibly by the openly
expressed outrage of many leaders of the bar — from228 /
imprisoning all four. The intimidating effect of these
rulings was obvious; their irrationality constitutes strong
evidence of bias. On repeated occasions the court sought to
coerce appellant into expressly waiving his claim that Garry
228/ TR* 2-23, 52-59; TR 129-30, 147-56, 158-78.
2_29/' Compare Sanders v. Russell, 401 F.2d 241 (5th Cir. ,
1968) (ruling that attorneys need not be required to appear
personally in court when their services there are not
desired by their clients) ; Sobol v. Perez. 289 F. S.upp. 392
(E.D. La., 1968).
162
should have been present at the trial.
The court's day-to-day rulings also suggest a most
230/
2_30/ On September 26, after attorneys Tigar and Lefcourt had
been brought to Chicago pursuant to the court's arrest warrants,
a discussion ensued as to the wording of a stipulation per
mitting them to withdraw. The court rejected the first such
stipulation offered, remarking,
The defense here has been equivocating about
whether or not all of these defendants have
lawyers of their own choice. I think they
have. But I am not going to let two lawyers
go here until they assert that they have
without equivocation. . . . (TR 147)
When Kunstler objected the defendants were being asked to
sacrifice their Sixth Amendment rights to obtain the release
of the two lawyers, the court merely ordered them into the
custody of the marshal. (TR 154)
On October 28, when Kunstler asked permission for one of the
defense attorneys to be excused from the trial for one day to
visit Garry in California, the following occurred.
THE COURT: . . . Only under these conditions:
That each and every defendant consent to the
absence of either yourself or Mr. Weinglass
and consent to the one who remains here to
represent his interests during that day, and
on this further condition, that you live up to
your oral and written representation to me
that you represent Mr. Seale.
* * *
MR. KUNSTLER: . . . Is the condition of my going
that Mr. Seale acknowledge that I am his lawyer?
Is that what it amounts to?
THE COURT: I have stated it pretty clearly.
MR. KUNSTLER: The defendants want to know this.
THE COURT: You have acknowledged it in writing
and on the record already, but I want you to do
it again. If you don't want to do it again, I
will deny your motion as made. (TR 4392-96)
The court also threatened to revoke bail for the other
defendants because they supported appellant's claims. TR 4723
163
unfortunate prejudice in favor of the prosecution. The
court forbade the staff of the defense attorneys to sit at
the defense table, but permitted prosecution staff to sit
2 3 2 /
at the prosecution table. The court constantly solicited
the views of the prosecution on defense motions and ob jectionsT”'
but on only a few occasions solicited the views of the defense
2_3_ywith regard to prosecution motions and objections. When the
prosecution criticized a defense question without formally
3scting to it, the court either solicited a formal objection
234 /
or construed the criticism as an objection; when the defense
counsel offered such criticism, the court refused to do anything
235/on the ground that no objection had been made. Although the
court was constantly admonishing the defense counsel, on its
230/ (Cont'd)
(See also the court's subsequent action listing as a condition
of defendant Hayden's^proposed trip to California that he make
no speeches on the "wickedness" of the President. TR 4961-65.)
231/ TR* 103-110, 141-2.
232/ TR* 6, 34, 61, 66, 75, 100, 129, 239; TR 92-93, 193, 198,
219, 274, 389, 450, 469, 491, 496-98, 504, 674, 686, 907, 1081-83
1132, 1141, 1287, 1479, 1562, 2022, 2036, 2140, 2308, 3019, 3132,
3530, 3604, 3768, 4008, 4355, 4741, 4996, 5030, 5090.
233 / TR 1483, 2054, 2590-1.
234/ TR 453, 542, 596, 603-4, 632, 656, 867, 879, 1001, 1223,
1715, 2320, 2473, 2714, 3256, 3471, 4376, 5228.
23V See, e.g., TR 2481.
164
own motion or at the suggestion of the prosecutionT^it
persistently refused defense requests for similar admonitions
against prosecution misconduct?- Although it issued frequent
orders to marshals, at times at the instance of the prosecutio^
the court disclaimed any power over them whenever the defense
complained about their action" On many occasions the court
refused to let the defense argue a motion or objection at all
24 (V '
or out that argument off before it was completed, and often
the defense's q u e s t s for explanations of the court's rulings
went unanswered. A reading of the record further reveals that
on numerous occasions the trial court acted as an additional
prosecuting attorney, frequently arguing motions for, or
defending, the prosecution rather than merely ruling on the
arguments of both sides.
236/ c
— / ee' — g *' TR *107' 254' TR 279-80, 1081-83, 1487-91, 4723.
2̂ 2 . T5344?’540ll2?' ^ 1039' 1011' 2431-35' 3221-22, 3505,
2— See ^ 3 . ' • TR 31, 109, 1409-11, 2092, 2694, 4607.
Wn-gXU: 41598 - 6 i , 94572 0 - i ? 4 ' 1655' 1682‘ 8 9 ' 180:‘ - ° 6 '
2JP/ S e e e ^ . , TR* 1785; TR 2197-99, 3867, 4857-58.
--/ TR 638, 729, 922, 1029, 1646-47, 1947, 4 4 5 5-6 .
The atmosphere of unbridled hostility towards appellant
and the other defendants engendered by the misconduct of the
trial judge and the prosecuting attorneys was compounded by
the actions of the United States Marshals responsible for
maintaining order in the courtroom. They were frequently
present in such numbers as to give the court the appearance
242/
of an armed camp. Black spectators, newspaper reporters, and
relatives of the defendants were often excluded or removed
243/
from the courtroom. These actions necessarily created an
atmosphere in which neither the jury nor the defense could
244/be expected to function in a normal fashion.
242/ TR 4632, 4739.
243/ TR 912, 1244 et seq., 1682, 1801-06, 2694-2704,
2936-39, 4325-29.
244/ The marshals also physically mistreated appellant after
he was bound and gagged, see e.g., TR 4815 (The full extent
of their actions is not, of course, apparent on the face of
the record.) See also TR 1891-93 (spectators told not to
"utter a sound"); 4396 (defense staff member barred from court)
4520-21 (same); 4620 ff (defense staff searched and their
papers examined by marshalls); 4643—44 (defense staff member ejected from court).
166
The official misconduct described above undoubtedly
contributed greatly to appellant's obvious sense of unfair
ness and outrage at the course of the trial. A clear causal
connection is evident between a number of instances of mis
conduct by the prosecuting attorney or court and subsequent
24.V
actions by appellant. At times that misconduct even seems
calculated to increase appellant's ultimate penalty by
.... 24£/provoking additional statements by him. At best, "it is
almost as impossible to determine the definite cause and
comparative responsibility for each impropriety as it is to
247 /
unscramble eggs." Moreover, even if appellant was wrong in
believing he had been denied his right to counsel and in
protesting the denial in the manner he chose, he was in any
event sincerely attempting in his own fashion to find vindica
tion of an important constitutional right. No such lofty
purpose can be attributed to the actions of the judge and
prosecution.
The purpose of §401 finds little room for expression in
the instant case. Courtroom decorum, and an atmosphere in
2jiV Compare Offutt v. United States, F.2d 842, 208
843-4 (D.C. Cir., 1953); Tauber v. Gordan, 350 F.2d 843,
845 n.2 (3rd Cir., 1965).
Compare Yates v. United States. 355 U.S. 66, 68 (1957).
Punishment of conduct deliberately provoked by the government
would be as inconsistent with due process as punishment of
conduct deliberately encouraged by the government. Compare
Sorrells v. United States. 287 U.S. 435 (1932).
2— / United States v. Offutt. 145 F. Supp. Ill, 115 (D. D.C., 1956).
167
which guilt or innocence might have been soberly and fairly
tested, were so shattered by the prosecutor and the judge as
to leave appellant little opportunity to work further harm.
The proceeding during which appellant's actions occurred had
no more than the form of a trial; the substance of that pro
ceeding was little more than a joint effort by the prosecutor
and the court to harangue, intimidate, and provoke appellant,
his co-defendants and defense counsel. It was "more suggestive
or an undisciplined debating society than of the hush and
248/
solemnity of a court of justice."
Punishment of all the offending parties might be appro
priate but that of course is not possible. Neither the judge,
the prosecuting attorneys nor the marshals are before this
court or are likely to be brought here. The prosecuting
attorneys and the marshals, while subject to the strictures
of §401, were not cited^for contempt by the trial judge and
are hardly likely to b e ~ The trial judge is not subject to
punishment for contempt. Where, as here, all the offending
parties cannot be subject to punishment, and particularly
since those who escape are all public officials, the principle
of equal protection and elementary notions of fairness demand
248/ Frankfurter, J., dissenting in Sacher v. 343 U.S. 1, 38 (1952). --------- United States.
249/ The trial court's indulgence of their behavior at the
tj-me would undoubtedly foreclose subsequent prosecution.
See CQX v . Louisiana, 379 U.S. 559, 568-73 (1965).
168
that appellant not alone be punished. Such a result accords
with the general policy of the law of denying assistance to
250./one of two parties who stand in_ pari delictu.
The nature of the charges for which appellant was being
tried is also relevant. The responsibility for civil dis
turbances which occurred at the time of the Democratic
National Convention has been variously attributed to defendants
in the proceeding below, the Mayor of Chicago, the Chicago
police, and to leaders of the Democratic Party. The ultimate
responsibility for these disturbances is naturally a matter
of public concern, but a criminal prosecution is the worst
possible forum for resolving such a question. The prosecution
of the anti-war demonstrators by the present administration
elected in November of 1958 is as much to be regretted as
would be the prosecution of the Mayor of Chicago or the
®tiring President of the United States by a newly elected
anhi-war administration. What is at issue is a fundamentally
political question which ought be resolved by the political,
not the criminal, process. Whether or not these considerations
should constitute a complete defense to a charge of contempt
they plainly militated in favor of judicial restraint.
250/ Thus equity will not employ its special powers to aid a
party with unclean hands. Where an accident results from the
simultaneous negligence of two parties, neither is allowed to
recover in tort from the other.
169
There is grave danger that the well publicized trial
which gave rise to the instant appeal will lead to other
disruptive incidents in federal and state courtrooms.
It is not, however, the conduct of Bobby Seale that
menaces "the functioning of the Federal Judicial System."
Rather, the menace to that system, and a grave and widespread
crisis of confidence in its ability to function, flow from
imposition of a savage 4—year federal penitentiary sentence
upon a militant spokesman for black equality because he
vigorously asserted in the courtroom his fundamental consti
tutional right to the lawyer of his choice, or, alternatively,
to defend himself. The danger is that appellant's treatment
in the court below will seriously undermine public confidence
that a fair and impartial trial is to be had by those who
quietly abide by the orderly procedures of the courts. Decorum
in federal and state courtrooms must ultimately rest not on
fear, but on abiding belief by all those present that justice
is being dispensed. if justice dictates that a defendant
guilty of contempt go unpunished because of official misconduct,
that conclusion is perfectly consistent with the practices of
American law. See, e.g., Mapp y. Ohio. 367 U.S. 643 (1961).
As Justice Holmes wrote in his famous dissent in Olmstead v.
United States, "We have to choose, and for my part I think it
a lesser evil that some criminals should escape than that the
government should play an ignoble part." 277 U.S. 438, 470
(1928). Such a result is required if judges and prosecutors
170
are to be deterred from the sort of misconduct which occurred
in the instant case.
Appellant's repeated objections to racism in the court
below echoes the conclusions of serious and informed studies
of this nation's treatment of its black citizens. Appellant,
as the only black among the defendants, accurately saw himself
25iy
as the inheritor of badges of slavery: he was the only
defendant deprived of counsel, the only defendant then deprived
of the right to present any defense at all, and ultimately the
defendant to be bound, shackled and gagged in the courtroom
because of his insistent demand that he be afforded fundamental
constitutional liberties.
Before and after appellant was subjected to these indig—
presidential commissions and the press repeatedly
recognized the pervasive denial of equality to black Americans.
As TIME magazine said in a special issue on April 6, 1970:
More than a century after the Civil War
and 16 years after the Supreme Court's
school desegregation ruling, the American
black has not achieved justice or equalitv
(P- 13)
Two years earlier, on March 1, 1968, the Kerner Commission
told the President and the nation that: "White racism is
251/ Compare Jones v. Alfred H. Mayer Co.. 392 U.S. 409 (1968),
in which the Supreme Court held that the Thirteenth Amendment's
design to abolish "all badges and incidents of slavery in the
United States"was not "a mere paper guarantee", but undertook
to secure to black Americans liberties available to whites.
171
essentially responsible for the explosive mixture which has
. 21 been accumulating in our cities since the end of World War II."
The considerations which we contend require reversal
and a dismissal of the contempt citation also demonstrate,
_ 253_/of course, that appellant's sentence was grossly excessive.
2-l^/ Report of the National Advisory Commission on Civil
Disorders, p . 203 (Hon. Otto Kerner, Chairman) (1968).
The same issue of TIME, supra, at p. 28, reported the
results of a nationwide poll of a cross-section of blacks
and concluded in an article entitled "The Black Mood" that:
Sixty—three percent of all blacks now believe "the system
is rotten and has to be changed completely for blacks to
be free"; "9% of all blacks . . . more than 2,000,000
Americans — count themselves 'revolutionaries' and believe
that only 'a readiness to use violence will ever get us
equality.'" "This disillusionment," TIME reported, ".
has almost totally alienated blacks from government — both
federal and local. . . . a 62%-to-21% majority felt that
the Supreme Court applied the law equally, but a 55%-to-23%
majority felt that state and local courts are biased."
2S3y Traditional grounds for reconsideration of sentence
and mitigation include: the invalidity of the orders ■ - •
violated— here the orders compelling appellant to accept
representation by Runstier and to remain silent (Donovan v.
Dallas, 377 U.S. 408, 411—12 (1964); Dunn v . Unitec! States
388 F.2d 511, 513 (10th Cir. 1968)); an impassioned
trial atmosphere (United States v. Maragas.
172
Lengthy^prison terms for direct contempt are extremely
unusual and in the federal system contempt sentences are
253 / (Continued)
390 F-2d 88 (6th Cir. 1968)) ; provocation by the court (Offutt
v. United States, 208 F.2d 842 (D.C. Cir. 1953), 348 U.S. 11
(1954)) or by opposing counsel (Olimpius v. Butler, 248 F.2d 169,
171 (4th Cir. 1957)). Many of the cited incidents were immediately preceededby and arose out of such provocation, and all the incidents resulted indirectly from the court's repeated provocatory assertion that Kunstier really was appellant's lawyer.
254/ The typical penalty for direct contempt has been either a fine
or a short prison term. See, e.g.,Parmelee Transportation Co.
V-»- Keeshin (Re McConnell), supra, ($1051 (reversed) ; United States
v. Bradt, 294 F.2d 879 (6 th Cir. 1961) ($100); Tauber' v.Gordon.^
350 F.2d 843 (3rd Cir. 1965) ($100) (conviction reversed); United
States v. Sopher, 347 F.2d 415 (7th Cir. 1965) ($1000)(conviction
reversed); Tessmer v. United States, 328 F.2d 306 (5th Cir. 1964)
($100); Murrell v. United States, 253 F.2d 267 (5th Cir. 1958)
($100); Cammer v. United States, 223 F.2d 322 (D.C. Cir. 1955)
($100); Kelley v. United States, 199 F.2d 265 (4th Cir. 1952)
(fine of unstated amount); United States v. Landes, 97 F.2d 378 (2nd
Cir. 1938) ($50); United States v. Galante, 298 F.2d 72 (2nd Cir.
1962)(20 days); In re Osborne. 344 F.2d 611 (9th Cir. 1965)
(10 days and $250); Offutt v. United States. 208 F.2d 842 (D.C.Cir. 1953(10 days). ~
The fact that appellant's sentences were consecutive rather
than concurrent was itself both harsh and unusual particularly
in light of the special problems arising under Bloom (Argument
II A, supra), the general practice of making multiple sentences
in contempt cases concurrent (see, e.g., United States v. Sacher.
supra, (5,6,7,9,18 and 23 concurrent sentences); Yates v. United
States, supra, (11 concurrent sentences); Parmelee Transportation
Co. v. Keeshin, supra, (3 concurrent sentences))i the presumption
against consecutive sentences (see, e.g., 8A Moore's Federal
Eyattice, f32.04; Borum v. United States, 409 F.2d 440 (D.C. Cir.
1967)),/ and the strong disfavor in which consecutive sentences for
closely related crimes are held (Harrison v. United States, 7 F.2d
259 (2nd Cir. 1925) ; Pagano v. United States, 224 F.2d 682 f2nd Cir. 1955)).. -------------------------
173
The trialfreely reviewed and often drastically reduced.
court's refusal to allow appellant to present any defense
whatsoever, the various provocations to which he was subjected,
and certainly all that appellant has already undergone — binding
and gagging, a declaration of mistrial and severance, his
commitment for contempt, and the revocation of his probation in
256/
another case — make any prison term in his case excessive.
But mere reduction of sentence would not be appropriate or adequate
in this case. Solely as a result of the contempt conviction
appellant's probation in another case has been revoked bv the257/
California courts. Should the conviction in this case be
affirmed, appellant will be subjected to a sentence of one year
to life. In addition, he is being held to answer to a criminal
258/
charge in the State of Connecticut. if convicted, sentence
255/
2_55/ See generally Green v. United States, 356 U.S. 165, 188 (1957).
2_56/ Compare United States ex rel. Robson v. Malone. 412 F.2d
848 (7th Cir.” l969) . ----------------------
2-52/ .California v. Seale (California Superior Court, Alameda
County, #41163, Revocation of Probation Hearinq, March 6 .1970).
258/ State v. Seale, No. 15844.
174
for that offense could well be made consecutive to the contempt
sentence. Finally, appellant's trial occurred at a time of
widespread doubt as to the fairness and impartiality of the courts
and constitutes a "distressing chapter" in the history of
2 5 9 /
American jurisprudence. in view of the abuse suffered by
appellant at the trial, the primary concern of this Court must
be that he receive just treatment and that this case be disposed
of in a manner which will restore the confidence of criminal
defendants in the courts and will deter the sort of official
misconduct which occurred below. These considerations require that
appellant's conviction be reversed and the contempt charges
dismissed.
25-9_/ United States v. Barnett. 346 F.2d 99, 101 (5th Cir. 1965) .
175
IX
THE MATTER OF ELECTRONIC SURVEILLANCE
On Monday, June 22, three days before his brief was due in
this Court, appellant received notice that the United States had
filed a motion to remand the case to the district court, apparently
for the limited purpose of supplementing the record to include elec
tronic surveillance material relevant to the contempt conviction on
appeal in the instant case. Appellant has asked for time to respond,
and plans to file his answer in this Court by Monday, July 6.
While appellant has had no time to study the government's
260/
present motion, and while the government has never revealed to
appellant anything about the nature of the electronic surveillance
material in its possession, or the manner in which it was obtained,
it is nonetheless apparent that surveillance activity by the govern
ment may require reversal of appellant's contempt conviction quite
apart from the Arguments set out in I-VIII, supra. Thus, if the
government has in its possession surveillance material which includes
conversations between appellant and his counsel, or relates in any
way to the councils of the defense with respect either to (1) the
.260/ On April 22, 1970 the government sought leave to file for
in camera inspection in the court below "a sealed memorandum and
attachments relating to electronic surveillance . . . in connection
with the Seale contempt conviction." (See Hearing on Motion to Leave
to File, United States v. Bobby Seale, 69 CR 180, April 22, 1970).
Appellant opposed the government's motion on the grounds that: (1)
the district court had no jurisdiction since the case was pending on
appeal in this Court; and (2) in camera inspection and filing were in
any event not warranted in the circumstances of this case. On May 11,
the court below denied the government's motion "for want of jurisdiction . "
176
and remanded for a new trial, Black v. United States. 385 U.S. 26 261/ ~ ~
(1966). Disclosure of such material may indicate that the
contempt charges cannot fairly be tried at all. Hoffa v. United
States, 385 U.S. 293, 308 (1966). Alternatively, appellant may at
least be entitled to reversal for a hearing as to whether surveillance
material in the government's possession was illegally obtained and
has tainted appellant's contempt conviction. Alderman v. United
States, 394 U.S. 165 (1969). But it is useless for appellant to
speculate what action might be appropriate, until the government
provides some information regarding the surveillance material in its262/
possession.
substantive charges in the conspiracy case, (2) the contempt convic
tion, or (3) its appeal; the contempt conviction must be vacated
2 6 1 / See also O'Brien v. United States. 386 U.S. 345 (1967).
262/ In the court below, supra, n. 260, the government revealed
no more than the bare facts that it had electronic surveillance
materia], in its possession relevant to the contempt conviction which
it wished for undisclosed reasons to file iri camera. On June 9 and
10, respectively, appellant's attorney Charles R. Garry sent identical
letters to the Hon. James Thompson, Acting United States Attorney for
the Northern District of Illinois, and the Hon. John Mitchell, Attorney
General of the United States, requesting copies of the material sought
to be filed in the court below, as well as other surveillance material
relating to Seale's contempt conviction and the appeal from that
conviction. No reply has yet been received.
177
and remanded for a new trial. Black v. United States. 385 u.s.
261/
(1966). Disclosure of such material may indicate that the
contempt charges cannot fairly be tried at all. Hoffa v. United
States, 385 U.S. 293, 308 (1966). Alternatively, appellant may at
least be entitled to reversal for a hearing as to whether surveillance
material in the government's possession was illegally obtained and
has tainted appellant's contempt conviction. Alderman v. United
States, 394 U.S. 165 (1969). But it is useless for appellant to
speculate what action might be appropriate, until the government
provides some information regarding the surveillance material in its
262/
possession.
substantive charges in the conspiracy case, (2) the contempt convic
tion, or (3) its appeal; the contempt conviction must be vacated
26.1/ See also O'Brien v. United States. 386 U.S. 345 (1967).
262/ In the court below, supra, n. 260, the government revealed
no more than the bare facts that it had electronic surveillance
material in its possession relevant to the contempt conviction which
it wished for undisclosed reasons to file in camera. On June 9 and
10, respectively, appellant's attorney Charles R. Garry sent identical
letters to the Hon. James Thompson, Acting United States Attorney for
the Northern District of Illinois, and the Hon. John Mitchell, Attorney
General of the United States, requesting copies of the material sought
to be filed in the court below, as well as other surveillance material
relating to Seale's contempt conviction and the appeal from that
conviction. No reply has yet been received.
177
CONCLUSION
For the reasons outlined above, this Court should
reverse appellant's convictions and direct that the Con
tempt Citation be dismissed.
Respectfully submitted,
JACK GREENBERG
MICHAEL MELTSNER
CONRAD K. HARPER
ELIZABETH B. DUBOIS
ERIC SCHNAPPER
10 Columbus Circle
New York, New York 10019
CHARLES R. GARRY
BENJAMIN DREYFUS
FRANCIS J. McTERNAN
501 Freemont Bldg.
341 Market Street
San Francisco, Calif. 94105
ANTHONY AMSTERDAM
Stanford Law School
Stanford, California 94305
MARSHALL PATNER
109 North Dearborn Street
Chicago, Illinois 60602
Attorneys for Appellant
178 -
f