United States v. Seale Brief for Appellant

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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 -



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