Opinion · Supreme Court of the United States
Cooke v. United States
Cooke v. United States, 267 U.S. 517 (1925)
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1925-04-13
- Topic
- general
How later courts describe this case
- emphasizing that the exercise of the contempt power “is a delicate one, and care is needed to avoid arbitrary or oppressive conclusions”
- noting that in a direct contempt situation "[t]here is no need of evidence or assistance of counsel before punishment, because the court has seen the offense"
- stating that "the intention with which acts of contempt have been committed must necessarily and properly have an important bearing on the degree of guilt and the penalty which should be imposed"
- explaining that conduct occurring in “open court” justifies presumption that the court saw it and supports dispensing with protections of due process because the authority of the court is at stake in immediate sanctioning of the conduct
- distinguishing the contempt at issue in Savin with contempt “under the eye or within the view of the court”
- reversing summary contempt conviction against 9 A-4864-15T2 attorney for a letter he wrote to the court demanding recusal and questioning the dignity of the court
- listing notice of charges, assistance of counsel, and right to present a defense
- giving maintenance of order as the primary purpose of contempt statute
Citator
UpLaw has not yet analyzed Cooke v. United States. The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 893 opinions
Headnotes
- General — Contempt — Contemptuous Character of Communication to Judge A letter delivered to a district judge in his chambers is contemptuous where, although it properly advises of the client's desire to have another judge try other pending cases and seeks to avoid the filing of an affidavit of bias under § 21 of the Judicial Code, it is written in the heat of the writer's indignation over the case just tried, is delivered while further necessary proceedings in that very case remain pending before the judge, and characterizes the judge's conduct in severe language personally derogatory to him; such personally condemnatory language, calculated to stir the judge's resentment and anger, is not excused by the writer's use of the form "Your Honor." 267 U.S. at 532
- Constitutional Law — Contempt — Summary Punishment for Contempt in Open Court When a contempt is committed in open court, the court may adjudge and punish it summarily upon its own knowledge of the facts, without further proof, without issue or trial, and without hearing an explanation of the offender's motives, because the court has itself seen the offense and immediate vindication of its dignity and authority is necessary to preserve order in the court room; such summary punishment is due process of law. 267 U.S. at 534 (citing Ex parte Terry, 128 U.S. 289)
- Constitutional Law — Due Process Where a contempt is not committed in open court, even though it constitutes "misbehavior in the presence of the court" within the meaning of Rev. Stats. § 725, due process of law requires that the accused be advised of the charges against him and be given a reasonable opportunity to meet them by way of defense or explanation; this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony relevant either to complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed. 267 U.S. at 535
- Constitutional Law — Contempt — Unfair Procedure; Personal Knowledge of the Judge A contempt prosecution is unfair and oppressive, and not due process of law, where the alleged contumacy consisted of sending a letter to the judge in chambers; eleven days later an order reciting the facts and adjudging contempt was entered and an attachment thereupon issued under which the accused was arrested forthwith and brought before the court; and, upon his admitting authorship of the letter, he was pronounced guilty because of it and of extraneous facts referred to by the judge as in aggravation, and was forthwith punished without being allowed to secure and consult counsel, prepare his defense, call witnesses, or make a full personal explanation. 267 U.S. at 537
- General — Contempt — Evidence in Mitigation In contempt cases where the intention with which the acts of contempt were committed must necessarily and properly have an important bearing on the degree of guilt and the penalty to be imposed, the court cannot exclude evidence offered in mitigation; such evidence is a proper part of the defense. 267 U.S. at 539
- General — Contempt — Assignment of Another Judge in Cases of Personal Attack Where conditions do not make it impracticable and the delay will not injure public or private rights, a judge who is called upon to act in a case of contempt consisting of a personal attack upon himself may, without flinching from his duty, properly ask that one of his fellow judges take his place, particularly where the issue between the judge and the parties has come to involve marked personal feeling that does not make for an impartial and calm judicial consideration and conclusion. 267 U.S. at 539
COOKEv. UNITED STATES,267 U.S. 517(1925)
45 S.Ct. 390
COOKEv. UNITED STATES.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
No. 311.
Argued March 20, 1925.
Decided April 13, 1925.
Clay Cooke and J.L. Walker were each sentenced for thirty
days' imprisonment for contempt by the United
Page 519
States District Court for the Northern District of Texas. The
case was taken on error to the Circuit Court of Appeals for the
Fifth Circuit, which affirmed the sentence of Cooke and reversed
that of Walker. By certiorari, Cooke's sentence was brought here.
Walker was defendant in a series of suits growing out of the
bankruptcy of the Walker Grain Company. One of the cases,
numbered 984, after a long jury trial resulted in a verdict
against Walker of $56,000. The next day, while the court was open
and engaged in the trial of another cause, and during a ten
minutes' recess for rest and refreshments, Walker, by direction
of Cooke, delivered to the District Judge in his chambers,
adjoining the court room, and within a few feet of it, a letter
marked "Personal". as follows:
"Fort Worth, Texas, February 15, 1923.
"Hon. James C. Wilson,
Judge U.S. District Court,
Fort Worth, Texas.
"Dear Sir:
"In re No. 985, W.W. Wilkinson, Trustee, vs. J.L. Walker; in
re No. 986, W.W. Wilkinson, Trustee, vs. Mass. Bonding Company et
al.; in re 266, Equity, W.W. Wilkinson, Trustee, vs. J.L. Walker;
in re 69, Equity, Southwestern Telegraph Telephone Co. vs. J.L.
Walker, in re No. 1001, in Bankruptcy, Walker Grain Company.
"Referring to the above matters pending in the District Court
of the United States for the Northern District of Texas, at Fort
Worth, I beg personally, as a lawyer interested in the cause of
justice and fairness in the trial of all litigated matters and as
a friend of the Judge of this Court to suggest that the only
order that I will consent to your Honor's entering in any of the
above mentioned matters now pending in Your Honor's Court, is an
order certifying Your Honor's disqualification on the ground of
prejudice and bias to try said matters.
Page 520
"You having however proceeded to enter judgment in the
petition for review of the action of the Referee on the summary
orders against the Farmers' Mechanics National Bank and J.L.
Walker and Mrs. M.M. Walker, you, of course, would have to pass
upon the motion for a new trial in those matters, and also having
tried 984, W.W. Wilkinson, Trustee, vs. J.L. Walker, you will, of
course, have to pass upon the motion for a new trial in said
cause.
"I do not like to take the steps necessary to enforce the
foregoing disqualification, which to my mind, as a lawyer, and an
honest man is apparent.
"Therefore, in the interest of friendship and in the interest
of fairness, I suggest that the only honorable thing for Your
Honor to do in the above styled matters. is to note Your Honor's
disqualification, or, Your Honor's qualification having been
questioned, to exchange places and permit some judge in whom the
defendant and counsel feel more confidence to try these
particular matters.
"Prior to the trial of cause No. 984, which has just
concluded, I had believed that Your Honor was big enough and
broad enough to overcome the personal prejudice against the
defendant Walker, which I knew to exist, but I find that in this
fond hope I was mistaken, also, my client desired the privilege
of laying the whole facts before Your Honor in an endeavor to
overcome the effect of the slanders that have been filed in Your
Honor's Court against him personally and which have been
whispered in Your Honor's ears against him, and in proof of which
not one scintilla of evidence exists in any record ever made in
Your Honor's Court.
"My hopes in this respect having been rudely shattered, I am
now appealing purely to Your Honor's dignity as a Judge and sense
of fairness as a man to do as in this letter requested, and
please indicate to me at the earliest moment Your Honor's
pleasure with respect to the matters
Page 521
herein presented, so that further steps may be avoided.
"With very great respect, I beg to remain,
"Yours most truly,
CLAY COOKE."
Eleven days after this, on the 26th of February, the court
directed an order to be entered with a recital of facts
concluding as follows:
"Therefore, since the matters of fact set forth herein are
within the personal knowledge of the judge of this Court, and
since it is the view of this Court that said letter as a whole is
an attack upon the honor and integrity of the Court, wherein it
charges that the judge of this Court is not big enough and broad
enough to truly pass upon matters pending therein, and wherein it
charges in effect that the judge of this Court has allowed
himself to be improperly approached and influenced and whispered
to by interested parties against a litigant in the Court, and
since it is the view of this Court that such an act by a litigant
and his attorney constitutes misbehavior, and a contempt under
the law and that the threats and impertinence and insult in said
letter were deliberately and designedly offered with intent to
intimidate and improperly influence the Court in matters then
pending and soon to be passed upon, and to destroy the
independence and impartiality of the Court in these very matters,
it is ordered that an attachment immediately issue for the said
J.L. Walker and Clay Cooke, and that the Marshal of this Court
produce them instanter before this Court to show cause, if any
they have, why they should not be punished for contempt."
The marshal arrested the defendants and brought them to court.
The following statement shows in substance what then occurred:
"Judge Wilson: At this time I will call the contempt matter
against Clay Cooke and J.L. Walker, attachment having been issued
for these respondents.
Page 522
"I have requested Judge J.M. McCormick, of Dallas, to be
present and act as a friend of the Court in this proceeding, and
have also requested the District Attorney, it being in its nature
a criminal matter, to act."
Mr. Clay Cooke said that he had not known of the attachment
until that morning, that he would like time to prepare for trial
and get witnesses for their defense, that there might be
extenuating circumstances which would appeal to the court's sense
of fairness and justice in fixing whatever penalty might be
imposed and that he had attempted to secure counsel but through
illness or absence of those he sought he had failed up to that
time.
Judge Wilson intimated that he would not postpone the matter,
and said:
"There is just this question involved, and as stated by
counsel representing the Court, these facts are within the
personal knowledge of this Court. Did you deliver this letter to
the Judge of this Court?
"Mr. Clay Cooke: Is your Honor asking me?
"Judge Wilson: I am stating the question — and does that under
the law constitute contempt? If you have any defense, you have
not suggested any. This Court would be glad to give you ample
time to file any pleadings pertinent and secure any evidence that
might support or tend to support it, but unless you desire now to
state that you have some defense you care to file and present,
and indicate what that defense is to this charge, then I shall
direct that this proceeding go forward, and you are fully
protected, since the higher Courts are open to you to correct any
error, even to the Supreme Court, that the Judge of this Court
might commit here. Now if you have any defense that is pertinent
to this order, state what it is."
Mr. Cooke began to dictate a statement to be filed by him, to
the effect that he and Walker believed that they had a good
defense, and that the matters of fact stated
Page 523
in the letter as to the bias and prejudice of the judge were
true.
"The Court: That does not constitute any defense.
"Mr. Clay Cooke: I'll state then something otherwise —
"Judge Wilson: Repeating the insult does not constitute any
defense.
"Mr. Clay Cooke: I am not trying to repeat the insult, if your
Honor please . . . I am now stating my good faith.
"Judge Wilson: I mean this, that the Court is not permitting
it stated — you may if you regard that as proper, you may state
it in your bill of exceptions in concluding the record.
"Mr. Clay Cooke: That affiant had heretofore been on friendly
relations with said Judge James C. Wilson —
"Judge Wilson: That is a matter that is wholly immaterial here
it don't make any difference how friendly.
"Mr. Clay Cooke: I am stating my good faith in writing the
letter. And affiant believed in writing said letter that he would
relieve the said Judge of the embarrassment of finding the
necessary statutory affidavits of disqualification, and if said
letter —
"Judge Wilson: Now the Court is not caring anything about your
suggesting the disqualification of the Court; that is your right
before these important trials, but you did not avail yourself of
that privilege. You understood as a lawyer how to proceed in
order to suggest the disqualification of the Judge.
"Mr. Clay Cooke: I am going to state why I did not proceed —
"Judge Wilson: That does not constitute any defense to this
contempt charge.
"Mr. Clay Cooke: Can I put that in about writing the letter?
Can I put that in later?
"Judge Wilson: You may.
Page 524
"Mr. Clay Cooke: That affiant wrote said letter without any
intention on his part of incurring contempt proceedings and
without any thought of contempt and believed that said letter
would not be so construed. That affiant has the highest regard
for this Court as a Judge; that affiant believed in good faith
the Court had heard things concerning —"
Then Mr. McCormick, for the court, interposed an objection
that there ought not to be an accentuation of the contempt in the
letter by a repetition of innuendoes and reflections on the court
or by including them in the record.
Mr. Clay Cooke said he had dictated and sent the letter after
advising with reputable counsel who had read it and believed it
proper. "The letter itself was not carefully read by myself."
"Judge Wilson: I would like to know who said reputable counsel
are."
Mr. Clay Cooke said it was his partner, Mr. Dedmon. He said
the letter was dictated and was not read by his client, J.L.
Walker, that he had not made the contents public and intended it
only for the judge's eye to relieve him from embarrassment, that
the purpose was most friendly. After repeating a desire for
counsel and the investigation as to the law of contempt in its
application to this case, Mr. Cooke referred to the statement he
had been attempting to dictate and asked that he might make it
fuller because of certain interruptions and to put in anything
relevant to his defense.
"You may add — I have not heard any defense suggested here
yet, but you may add any, however, if you think of any later.
Read the order, Mr. District Attorney."
The District Attorney then read the order for the arrest of
the defendants set forth in the record in said cause, the
defendants were directed to stand up and the court addressed them
as follows:
Page 525
"Judge Wilson: The findings of fact, all of which are within
the personal knowledge of this Court, will be made in the order
entered:
"Now, gentlemen, it is a matter almost of common knowledge
that the Courts may be lawfully criticised the same as any other
branch of the government, and that it is not unlawful or a
contempt of the Court for any person, including newspapers, to
pass criticisms upon the judiciary, including the Federal Courts
and the judges regardless of their truth or falsity, when those
criticisms are concerning past matters not at the time pending in
the Courts. This law is based upon sound principle. Every branch
of the Government needs constructive criticism; when it is such
it is wholesome and helpful; no judge I think welcomes it more
nor fears it less than the Judge of this Court. But it is
altogether a different proposition and is unlawful and clearly
constitutes a contempt of Court for any litigant or attorney to
pass such in the presence of the Court, not in a respectful, but
in a contemptuous and slanderous manner concerning matters then
pending and later to be disposed of by the Court.
"It is obvious upon a reading of this letter that you
deliberately designed to improperly influence the Court in these
pending matters wherein no disqualification is suggested, and you
were very careful to suggest that the Court was not disqualified
in certain matters, and it is the view of the Court that it was
your thought and aim to destroy the independence and the very
impartiality of the Court as to those matters.
"And I have some more things I should like to remind you
gentlemen of, your conduct and course as litigant and as an
attorney of this Court, in many respects, has been reprehensible.
You have filled your pleadings with scandalous charges against
trusted officials of this Court. You have charged that the
Referee in Bankruptcy, the attorneys for the petitioning
creditors and the Trustee in Bankruptcy entered into a corrupt
conspiracy to do
Page 526
many unlawful things all to deprive you, J.L. Walker, of your
rights, in this Court. And not only that, but while the jury were
deliberating in cause No. 984, and though in charge of the
marshal of this Court, you both of you being a party to it,
employed a private detective to follow and shadow them with a
view of reporting to you any corrupt conduct on their part; and
you, J.L. Walker after the jury had rendered its verdict of
fifty-six thousand dollars against you, you employed this same
detective, whose sworn statement I hold in my hand, to follow the
foreman of the jury, Mr. E.G. Thomas, an honorable and respected
citizen of Tarrant County, stating that you expected him to meet
some one and be paid off, in other words, to receive bribe money
for his verdict in said cause. And not only that, but you gave
this same private detective to understand, that another one of
the jurors, an honorable citizen of Parker County, had been
improperly approached and influenced as a juror in this case —
"Mr. J.L. Walker: Your Honor, pardon me, but I would like to
state that J.L. Walker did but what he is in position to prove,
and I have it in my pocket —
"— Mr. Marshal, cause this man to desist.
"Mr. J.L. Walker: I beg your pardon I thought I had the right
to speak now.
"Judge Wilson: No, you haven't got a right. Your time to reply
is passed.
"In view of all this, it is not surprising that you men would
deliver this letter to the Court with the utterly false statement
in it that this Court had permitted himself to be improperly
influenced and whispered to by interested parties against a
litigant in this Court. It is a simple and easy matter to analyze
the character of any man who is expecting every other man to act
dishonestly and corruptly.
"Your whole course, as I say, has been contemptible, not only
in this matter, and it is not surprising that you delivered this
letter to the Court and is surprising that
Page 527
you did not state more in the letter, and of course you are in
contempt, if you are not, you have your remedy, and you, J.L.
Walker, I sentence to the Tarrant County jail for thirty days and
the payment of a five hundred dollar fine —
"Mr. McCormick: I doubt whether your Honor has the authority
to assess both fine and imprisonment. The statute says you may
punish by `fine or imprisonment.' I believe I would suggest that
you visit such fine as you see fit, or such imprisonment, but not
both.
"Judge Wilson: I assess a punishment of thirty days against
each of these respondents."
"Mr. Cooke asked that a bond be fixed pending appeal.
"Mr. McCormick: An appeal does not lie in such a case. The
evidence, gentlemen, if at all, must be reviewed by writ of
error, if reviewed at all.
"Mr. Clay Cooke: The statement of the Court is he will
consider a writ of error or appeal. In this case we will have
sixty days —
"Judge Wilson: Take these respondents to jail, Mr. Marshal.
"Mr. McCormick: If they are going to take the full sixty days
on the matter —
"Judge Wilson: No, there is not going to be any sixty days,
the higher Court is going to pass upon this matter at once. . . .
"Mr. Dedmon: Did your Honor fix the amount of the bond?
"Judge Wilson: One thousand dollars. I am not allowing them
bond, not releasing the defendants. It is a writ of error bond.
"Mr. Dedmon: You mean you are not going to let them appeal
from the order adjudging them to spend thirty days in jail?
"Judge Wilson: If they perfect this appeal, I might release
them from jail — show that they are going to appeal it and do it
in a hurry."
Page 528
Petitioner's conviction was obtained without due process of law.
He was sentenced without any affidavit or other authentic charge being brought against him, or any notice of the offense charged,Phillips S. T., Co., v.Amalgamated Ass'n., 208 F. 335;Sonav.Aluminum Castings Co., 214 F. 936.
Even the purported charge states no offense against the laws of the United States. If everything in the purported charge were admitted to be true, it would merely mean that the judge held certain private "views" as to certain private, confidential acts of the defendant, and these views might or might not be justified by the facts.Ex parte Hudgins,249 U.S. 378;Ex parte Craig, 274 F. 185.
Petitioner was not informed of the nature and cause of the accusation. The statute was in no respect complied with. The petitioner was arrested on a warrant that neither charged an offense nor contained a certified copy of any charge, and was immediately committed to jail for 30 days.Sonav.AluminumCastings Co., supra;Gompersv.Bucks Stove Range Co.,221 U.S. 418;Ex parte Robinson, 19 Wall. 505;Windsorv.McVeigh,93 U.S. 274;Galpinv.Page, 18 Wall. 350;In reHolt,55 N.J.L. 384.
Petitioner was denied the assistance of counsel for his defense. No notice was given him of the charge, though the trial judge consumed ten days after receiving the letter in which it appears he engaged the services of a special prosecutor from another city, formulated the charge, prepared for the prosecution; then, after such careful preparation, a marshal is sent out to bring petitioner under arrestinstanterbefore the court, where hePage 529is denied all reasonable opportunity to consult counsel, or to obtain the assistance of counsel for his defense. The fact that this is a criminal prosecution and that defendant was denied the assistance of counsel for his defense can not be, and is not, denied. It is the assistance of counsel that the Constitution guarantees. The right of counsel, even if granted, without the right of consultation is barren and fruitless. The arrest, the alleged hearing, the conviction and the incarceration of defendant all occurred in a very short space of time in the forenoon, and defendant during all of that time was in the custody of the marshal or before the bar of the court in custody, with no opportunity either to employ or consult with counsel.
Defendant was not allowed to plead to the charge, and the common law right to purge himself by his oath was denied him.Craigv.Hecht,260 U.S. 714. The only objection to the letter apparently urged in the purported charge is the statement of the defendant's former opinion that the judge was big enough and broad enough to overcome the bias and prejudice admittedly existing, and the conclusion that he was mistaken therein. This is not a contempt. It is merely the statement of a truth, which this record clearly discloses. It is an unfortunate situation that a lawyer may, with flattery and praise, seek to and actually influence judicial action, but he cannot speak the truth with candor without being sent to jail. This is not as it should be.Ex parte Robinson, supra; Hoveyv.Elliott,167 U.S. 409;McVeighv.United States, 11 Wall. 259;Windsorv.McVeigh,93 U.S. 277;Galpinv.Page, 18 Wall. 350;In rePittman, 1 Curt. (U.S.) 186.
Petitioner was convicted without being confronted by any witnesses or evidence against him, and there is no evidence of guilt in the record to sustain the conviction.
The record on appeal was wrongfully altered after the appeal was perfected by arbitrarily striking out defendant'sPage 530answer and motion in arrest of judgment, and for a new trial; and the court's refusal to act on the same was a refusal to perform the duties required of it by law; and striking the papers from the record on appeal after appeal was perfected was an invasion of the province and jurisdiction of appellate courts, and deprived petitioner of substantial legal rights. A sentence imposed for an offense not charged is void.Mr. Merrill E. Otis, Special Assistant to the Attorney General, with whomSolicitor General Beckwas on the brief, for the United States.
Petitioner was guilty of contempt, § 725, Rev. Stats. This act is not the source. of course, of the power of the federal courts to punish contempts. It but restricts their inherent power. Under it they can only punish as contempt "the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice."
Petitioner's act in writing and delivering the letter, was in the "presence of the court."In re Savin, Petitioner,131 U.S. 267. It was also "misbehavior" to say to the judge in writing, as the petitioner here did, that in a case just ended and in which a motion for a new trial was pending, he had proved himself not big enough and not broad enough to restrain his bias and prejudice against a litigant; that in his conduct of the trial he had manifested such prejudice and bias; and that he was possessed of this prejudice and bias against the litigant because he had permitted slanders to be whispered in his ears; to say to the judge that the petitioner's hopes that the judge would conduct himself as a judge should had been shattered by the judge's conduct, and not only shattered but rudely shattered; to say all of these things, and in substance they were all said in the petitioner's letter, was patently to offer insult to the court and openly to impeach his honor both as judge and man. Certainly it is no defensePage 531to say that there were parts of the letter that were not improper, or that much of it might lawfully have been incorporated in an affidavit to disqualify the judge in cases not yet tried. There remains the offending language which had no reference to the cases yet for trial but referred solely to the case still pending on motion for new trial.
Petitioner was accorded a fair hearing. The word "warrant" as used in the Fourth Amendment has never been held to include an attachment to answer for contempt of court. It has been repeatedly held that in a case of a direct contempt neither affidavit, notice, rule to show cause, nor other process, is a necessary prerequisite to the court's jurisdiction to punish the contempt.In re Terry,128 U.S. 289. The petitioner waived any objection to the basis of the attachment by pleading orally and in writing to the charge upon its merits. This objection is contained in none of the assignments of error.
NeitherPhillips S. T. Co. v.Amalgamated Ass'n., 208 F. 335, norSonav.Aluminum Castings Co., 214 F. 936, was a case of direct contempt committed in the presence of the court. No formal charge whatever was necessary in case of a contempt committed in the presence of the court. The statute does not require that the "misbehavior," if committed in the presence of the court, mustalsobe of such character as to "obstruct the administration of justice." That qualification is required only as to misbehavior not committed "in the presence of the court."Ex parte Hudgins,249 U.S. 378;Ex parte Craig, 274 F. 177 distinguished.
Article IV of the Amendments providing that "In all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation," is one of those constitutional limitations which this court said in theHudgins Case, supra, did not apply to a contempt committed "in the presence of thePage 532court." Moreover, the record clearly shows that in truth and fact the petitioner was fully informed as to the charge against him before he undertook to state his defense.
As for Article VI, relating to the right of counsel in all criminal prosecutions, the inapplicability of this amendment, with its several guarantees, including that of trial by jury, to a proceeding for the summary punishment of contempt in the presence of the court is so well recognized that discussion of it is idle. One charged with a direct contempt committed in the presence of the court has not the right to plead formally to the charge. Here again theHudgins Caseis in point and decisive. The most petitioner was entitled to was opportunity to deny authorship of the offending letter, since it was delivered by the hand of another although in his presence. But he admitted authorship. There was nothing that might have been proper subject matter of any further hearing. Such hearing as he was entitled to he had.
Petitioner was deprived of no legal right by any failure to transmit to the Circuit Court of Appeals what purported to be an answer admittedly offered for filing after writ of error had been allowed.
"Whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein, but another judge shall be designated in the manner prescribed in the section lastPage 533preceding, or chosen in the manner prescribed in section twenty-three, to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one such affidavit; and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith."
It is said that all that the petitioner intended to do by this letter was to advise the court of the desire of his client to have another judge try the four cases yet to be heard, and of his own desire to avoid the necessity of filing an affidavit of bias under the above section in those cases by inducing the regular judge voluntarily to withdraw. Had the letter contained no more than this, we agree with the Circuit Court of Appeals that it would not have been improper.
But we also agree with that court that the letter as written did more than this. The letter was written the morning after the verdict in the heat of the petitioner's evident indignation at the judge's conduct of the case and the verdict. At least two weeks would elapse before it was necessary to file an affidavit of bias in the other cases.1The letter was written and delivered pending further necessary proceedings in the very case which aroused the writer's anger. While it was doubtless intended to notify the judge that he would not be allowed to sit in the other cases, its tenor shows that it was also written to gratify the writer's desire to characterize in severe language, personallyPage 534derogatory to the judge, his conduct of the pending case. Though the writer addressed the judge throughout as "Your Honor", this did not conceal but emphasized the personal reflection intended. The expression of disappointed hope that the judge was big enough and broad enough to overcome his personal prejudice against petitioner's client and that the client would have the privilege of rebutting the whispered slanders to which the judge had lent his ear, and the declaration that his confidence in the judge had been rudely shattered, were personally condemnatory and were calculated to stir the judge's resentment and anger. Considering the circumstances and the fact that the case was still before the judge, but without intending to foreclose the right of the petitioner to be heard with witnesses and argument on this issue when given an opportunity, we agree with the Circuit Court of Appeals that the letter was contemptuous.
But while we reach this conclusion, we are far from approving the course of the judge in the procedure, or absence of it, adopted by him in sentencing the petitioner. He treated the case as if the objectionable words had been uttered against him in open court.
To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court's dignity and authority is necessary. It has always been so in the courts of the common law and the punishment imposed is due process of law. Such a case had great consideration in the decision of this Court inEx parte Terry,128 U.S. 289. It was there held that a court of the United States upon the commission of a contempt in open courtPage 535might upon its own knowledge of the facts without further proof, without issue or trial, and without hearing an explanation of the motives of the offender, immediately proceed to determine whether the facts justified punishment and to inflict such punishment as was fitting under the law.
The important distinction between theTerry Caseand the one at bar is that this contempt was not in open court. This is fully brought out inSavin, Petitioner,131 U.S. 267. The contempt there was an effort to deter a witness, in attendance upon a court of the United States in obedience to a subpoena, while he was in a waiting room for witnesses near the court room, from testifying, and the offering him money in the hallway of the courthouse as an inducement. This was held to be "misbehavior in the presence of the Court" under § 725 R.S. (now § 268 of the Judicial Code). The Court, speaking by Mr. Justice Harlan, said (Page 277):
"We are of opinion that, within the meaning of the statute, the court, at least when in session, is present in every part of the place set apart for its own use, and for the use of its officers, jurors and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court. It is true that the mode of proceeding for contempt is not the same in every case of such misbehavior. Where the contempt is committed directly under the eye or within the view of the court, it may proceed `upon its own knowledge of the facts and punish the offender, without further proof, and without issue or trial in any form,'Ex parte Terry,128 U.S. 289,309; whereas, in cases of misbehavior of which the judge can not have such personal knowledge, and is informed thereof only by confession of the party, or by testimony under oath of others, the proper practice is, by rule or other process, to require the offender to appear and show cause why he should not be punished. 4 Bl. Com. 286."Page 536
This difference between the scope of the words of the statute "in the presence of the court," on the one hand, and the meaning of the narrower phrase "under the eye or within the view of the court," or "in open court" or "in the face of the court," or "infacie curiae," on the other, is thus clearly indicated and is further elaborated in the opinion.
We think the distinction finds its reason not any more in the ability of the judge to see and hear what happens in the open court than in the danger that, unless such an open threat to the orderly procedure of the court and such a flagrant defiance of the person and presence of the judge before the public in the "very hallowed place of justice," as Blackstone has it, is not instantly suppressed and punished, demoralization of the court's authority will follow. Punishment without issue or trial was so contrary to the usual and ordinarily indispensable hearing before judgment, constituting due process, that the assumption 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 of the court created it.
When the contempt is not in open court, however, there is no such right or reason in dispensing with the necessity of charges and the opportunity of the accused to present his defense by witnesses and argument. The exact form of the procedure in the prosecution of such contempts is not important. The Court inRandallv.Brigham, 7 Wall. 523, 540, in speaking of what was necessary in proceedings against an attorney at law for malpractice said:
"All that is requisite to their validity is that, when not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defence. The manner in which the proceeding shall be conducted, so that it be without oppression or unfairness, is a matter of judicial regulation."Page 537
The Court inSavin, Petitioner,131 U.S. 267, applied this rule to proceedings for contempt.
Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed. SeeHollingsworthv.Duane, 12 Fed. Cases 359, 360;In reStewart,118 La. 827;Ex parte Clark,208 Mo. 121.
The proceeding in this case was not conducted in accordance with the foregoing principles. We have set out at great length in the statement which precedes this opinion the substance of what took place before, at and after the sentence. The first step by the court was an order of attachment and the arrest of the petitioner. It is not shown that the writ of attachment contained a copy of the order of the court, and we are not advised that the petitioner had an exact idea of the purport of the charges until the order was read. In such a case, and after so long a delay, it would seem to have been proper practice, as laid down by Blackstone, 4 Commentaries, 286, to issue a rule to show cause. The rule should have contained enough to inform the defendant of the nature of the contempt charged. SeeHollingsworthv.Duane, 12 Fed. Cases 367, 369. Without any ground shown for supposing that a rule would not have brought in the alleged contemnors, it was harsh under the circumstances to order the arrest.
After the court elicited from the petitioner the admission that he had written the letter, the court refused him time to secure and consult counsel, prepare his defense and call witnesses and this although the court itselfPage 538had taken time to call in counsel as a friend of the court. The presence of the United States District Attorney also was secured by the court on the ground that it was a criminal case.
The court proceeded on the theory that the admission that the petitioner had written the letter foreclosed evidence or argument. In cases like this, where the intention with which acts of contempt have been committed must necessarily and properly have an important bearing on the degree of guilt and the penalty which should be imposed, the court can not exclude evidence in mitigation. It is a proper part of the defense. There was a suggestion in one of the remarks of the petitioner to the court that, while he had dictated the letter he had not read it carefully, and that he had trusted to the advice of his partner in sending it; but he was not given a chance to call witnesses or to make a full statement on this point. He was interrupted by the court or the counsel of the court in every attempted explanation. On the other hand, when the court came to pronounce sentence, it commented on the conduct of both the petitioner and his client in making scandalous charges in the pleadings against officials of the court and charges of a corrupt conspiracy against the trustee and referee in bankruptcy, and in employing a detective to shadow jurymen while in charge of the marshal, and afterwards to detect bribery of them, in proof of which the court referred to a sworn statement of the detective in its hands, which had not been submitted to the petitioner or his client. When Walker questioned this, the court directed the marshal to prevent further interruption. It was quite clear that the court considered the facts thus announced as in aggravation of the contempt. Yet no opportunity had been given to the contemnors even to hear these new charges of the court, much less to meet or explain them, before the sentence. We think the procedure pursued was unfair and oppressive to the petitioner.Page 539
Another feature of this case seems to call for remark. The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place.Cornishv.The United States, 299 F. 283, 285;Toledo Companyv.The United States, 237 F. 986, 988.
The case before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows. We think, therefore, that when this case again reaches the District Court to which it must be remanded, the judge who imposed the sentence herein should invite the senior circuit judge of the circuit to assign another judge to sit in the second hearing of the charge against the petitioner.Page 540
Judgment of the Circuit Court of Appeals is reversed and the case is remanded to the District Court for further proceedings in conformity with this opinion.Reversed.
- Page 533 The next term of the court at Forth Worth would have been the second Monday in March (Judicial Code, § 108) so that the affidavit required by § 21 for disqualification need not have been filed before March 2nd. The letter was written February 15th. ↩