In a criminal trial in a Federal District Court, the judge
became personally embroiled with the defense counsel in a
protracted wrangle, during which the judge displayed personal
animosity and a lack of proper judicial restraint. At the close of
the trial, acting under Rule 42 (a) of the Federal Rules of
Criminal Procedure, the judge summarily found the defense counsel
guilty of criminal contempt for "contumacious and unethical conduct
. . . during the trial," and ordered him committed for ten days.
The Court of Appeals, while agreeing that counsel was guilty of
reprehensible misconduct, found that "appellant's conduct cannot
fairly be considered apart from that of the trial judge," and
reduced the punishment to 48 hours in affirming the conviction.
in the exercise of this Court's supervisory
authority over the administration of criminal justice in the
federal courts, the contempt conviction is set aside and the cause
is remanded to the District Court with a direction that the
contempt charges be retried before a different judge. Cooke v.
United States, 267 U. S. 517
348 U. S.
93 U.S.App.D.C. 148, 208 F.2d 842, reversed.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This case is here on review of a modified affirmance by the
Court of Appeals of an order by the District Court summarily
committing the petitioner for criminal contempt.
Page 348 U. S. 12
The proceeding grew out of the trial of one Peckham for abortion
under D.C.Code 1951, § 22-201, 31 Stat. 1322. The petitioner was
Peckham's trial counsel. Almost from the outset, a clash between
the presiding judge and petitioner became manifest which, it is
fair to say, colored the course of the trial throughout its 14
days, and with increasing personal overtones. The judge again and
again admonished petitioner for what he deemed disregard of rulings
and other behavior outside the allowable limits of aggressive
advocacy, and warned him of the consequences by way of punishment
for contempt which such conduct invited. On the other hand, these
interchanges between court and counsel were marked by expressions,
and revealed an attitude which hardly reflected the restraints of
conventional judicial demeanor. Such characterization, of
necessity, derives from an abiding impression left from a reading
of the entire record.
At the close of the trial, after the jury had retired for
deliberation, the judge, acting under the procedure prescribed by
Rule 42(a) of the Federal Rules of Criminal Procedure [Footnote 1
] and invoking the authority
of Sacher v. United States, 343 U. S.
, found the petitioner guilty of criminal contempt on
the basis of a certificate filed under the Rule, containing 12
findings of "contumacious, and unethical conduct in open court
during the trial," and ordered him committed for 10 days to the
custody of the United States Marshal for the District of
The Court of Appeals found that four of the 12 findings amply
supported the commitment, but reduced the punishment from 10 days
to 48 hours. It concluded that
Page 348 U. S. 13
record does not support the penalty imposed. Appellant's conduct
cannot fairly be considered apart from that of the trial judge.
Each responded to great provocation from the other. The judge's
treatment of appellant, examples of which are included in an
appendix to our opinion in Peckham v. United States,
U.S.App.D.C. ___, and which is the chief factor in leading a
majority of this court to conclude that Peckham's conviction cannot
stand, leads us all to conclude that appellant's sentence should be
reduced from 10 days to 48 hours."
208 F.2d 842, 843-844. As indicated above, the Court of Appeals
reversed Peckham's conviction because it found that the judge's
behavior barred the court "from sustaining the judgment as the
product of a fair and impartial trial." Peckham v. United
93 U.S.App.D.C. 136, 210 F.2d 693, 702.
In view of this Court's "supervisory authority over the
administration of criminal justice in the federal courts,"
McNabb v. United States, 318 U. S. 332
318 U. S. 341
and the importance of assuring alert self-restraint in the exercise
by district judges of the summary power for punishing contempt, we
brought the case here. 347 U.S. 932.
We shall not retrace the ground so recently covered in the
In enforcing Rule 42(a), the
Court in that case emphasized its duty to safeguard two
indispensable conditions to the fair administration of criminal
justice: (1) counsel must be protected in the right of an accused
to "fearless, vigorous and effective" advocacy, no matter how
unpopular the cause in which it is employed; (2) equally so will
this Court "protect the processes of orderly trial, which is the
supreme object of the lawyer's calling." 343 U.S. at 343 U. S. 13
Rule 42(a) was not an innovation. It did not confer power upon
district judges not possessed prior to March 21, 1946. 327 U.S.
821. "This rule," the Advisory Committee on the rules of criminal
"is substantially a
Page 348 U. S. 14
restatement of existing law, Ex parte Terry,
128 U. S.
; Cooke v. United States, 267 U. S.
, 267 U. S. 534
The pith of this rather extraordinary power to punish without
the formalities required by the Bill of Rights for the prosecution
of federal crimes generally, is that the necessities of the
administration of justice require such summary dealing with
obstructions to it. It is a mode of vindicating the majesty of law,
in its active manifestation, against obstruction and outrage. The
power thus entrusted to a judge is wholly unrelated to his personal
sensibilities, be they tender or rugged. But judges also are human,
and may, in a human way, quite unwittingly identify offense to self
with obstruction to law. Accordingly, this Court has deemed it
important that district judges guard against this easy confusion by
not sitting themselves in judgment upon misconduct of counsel where
the contempt charged is entangled with the judge's personal feeling
against the lawyer.
Of course, personal attacks or innuendoes by a lawyer against a
judge, with a view to provoking him, only aggravate what may be an
obstruction to the trial. The vital point is that, in sitting in
judgment on such a misbehaving lawyer, the judge should not himself
give vent to personal spleen or respond to a personal grievance.
These are subtle matters, for they concern the ingredients of what
constitutes justice. Therefore, justice must satisfy the appearance
Duly mindful of the fact that the exercise of the power of
summary punishment for contempt "is a delicate one, and care is
needed to avoid arbitrary or oppressive conclusions," this Court,
in Cooke v. United States, supra,
without in the slightest
condoning contemptuous behavior on the part of a lawyer, deemed it
"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
Page 348 U. S. 15
ask that one of his fellow judges take his place."
267 U.S. at 267 U. S.
The Government has vigorously pressed upon us the leeway that
must be allowed to a trial judge in assessing the necessities of
such a situation. We do not mean to imprison the discretion of
judges within rigid mechanical rules. The nature of the problem
precludes it. Nor are we unmindful of the fact that the ultimate
finding of reprehensible misconduct by petitioner was sustained by
the Court of Appeals. That great weight is to be given to the
findings of fact by the two lower courts is a rule of wisdom in the
exercise of the reviewing power of this Court. But, in the
enforcement of the rule, it is important to discriminate between
more or less subordinate facts leading to a judgment of their legal
significance and a conclusion -- though concurred in by two courts
-- that may, in fact, imply a standard of law on which judgment on
the case in its entirety is based. Baumgartner v. United
States, 322 U. S. 665
322 U. S.
-671; United States v. Appalachian Elec. Power
Co., 311 U. S. 377
311 U. S.
-404. We are not intimating that the Court of Appeals
was not justified in finding ample support for its conclusion that
the trial judge was warranted in deeming petitioner's conduct, as
such, contemptuous. The real issue is whether, under the decision
of the Cooke
case, such a ruling should have been made by
the trial judge, or whether, for the very purpose of vindicating
justice for which the power of summary contempt is available, the
determination of petitioner's guilt and the punishment properly to
be meted out on a finding of guilt should have been made, in the
first instance, by a judge not involved, as was this trial judge,
in the petitioner's misconduct.
The fact that the Court of Appeals reduced the sentence from 10
days to 48 hours because the petitioner's conduct "cannot fairly be
considered apart from that of the trial judge" is compelling proof
that the latter failed
Page 348 U. S. 16
to represent the impersonal authority of law. Plainly, the Court
of Appeals thought that, in the trial court's disposition of the
misconduct of the petitioner, there was an infusion of personal
animosity. And, indeed, that court found that such was the fact on
a full consideration of the record in the Peckham
and, for that reason, reversed Peckham's conviction. That court
"the excessive injection of the trial judge into the examination
of witnesses, his numerous comments to defense counsel, indicating
at times hostility, though under provocation,"
which it concluded "demonstrated a bias and lack of
impartiality." Peckham v. United States, supra,
It bears repeating that the whole record amply supports this
characterization of the trial judge by the Court of Appeals.
] And his feeling
toward the lawyer on whom
Page 348 U. S. 17
he had to pass sentence is revealed by his statement to the jury
in discharging them. [Footnote
The question with which we are concerned is not the
reprehensibility of petitioner's conduct and the consequences which
he should suffer. Our concern is with the fair administration of
justice. The record discloses not a rare flareup, not a show of
evanescent irritation -- a modicum of quick temper that must be
allowed even judges. The record is persuasive that, instead of
representing the impersonal authority of law, the trial judge
permitted himself to become personally embroiled with the
petitioner. There was an intermittently continuous wrangle on an
unedifying level between the two. 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 indispensable
for an appropriate sense of responsibility on the part of court,
counsel and jury. Such an atmosphere will also make for dispatch
insofar as is consonant with a fair trial. The manner in which this
trial was conducted doubtless contributed to the wastefulness of 14
trial days for a case of such limited scope as was the
We conclude that application of the rule pronounced in Cooke
v. United States
is called for. The fact that the Court of
Appeals here reduced the sentence imposed
Page 348 U. S. 18
by the trial judge does not take this situation out of the moral
and judicial considerations expounded on behalf of the Court by Mr.
Chief Justice Taft. To sanction such a course of procedure would
give it encouragement. In the language of the Cooke
with one appropriate change,
"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 [Chief] Judge of the
[District Court] to assign another judge to sit in the second
hearing of the charge against the petitioner."
267 U.S. at 267 U. S.
MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS join in the opinion of
the Court and concur in the reversal and remand of the case for
hearing before another judge. They would go further, however, and
direct that petitioner be accorded a jury trial, for reasons set
out in their dissents in Sacher v. United States,
343 U. S. 1
343 U. S. 14
and Isserman v. Ethics Committee, 345 U.
MR. JUSTICE REED and MR. JUSTICE BURTON dissent. They would
affirm the judgment of the Court of Appeals on the basis of its
"RULE 42. CRIMINAL CONTEMPT."
"(a) 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 recite the
facts, and shall be signed by the judge and entered of record."
For our purposes, it will be sufficient to quote two specific
"The Court: Motion denied. Proceed."
"Mr. Offutt: I object to Your Honor's yelling at me and raising
your voice like that."
"The Court: Just a moment. If you say another word, I will have
the Marshal stick a gag in your mouth."
"The Court: Don't argue with the Court."
"Mr. Offutt: I am not arguing with the Court, Your Honor."
"The Court: Don't answer back to the Court, either."
"Mr. Offutt: Oh, I thought Your Honor -- I am merely trying to
present my point."
"The Court: Proceed with the next question."
"Mr. Offutt: Thank you, Your Honor."
"Your Honor, I object to your raising your voice like that and
shouting at me, and I urge Your Honor not to do it."
"The Court: Well, you are misbehaving, Mr. Offutt."
"Mr. Offutt: And I have a right --"
"The Court: And it is my function to hold the reins tight, and
preserve order and decorum in the courtroom."
"Mr. Offutt: But not to yell at me, Your Honor."
"And I submit I am entitled, and my duty is, to make objections
and to state for the record, and I am putting my objections on the
"The Court: You have forfeited your right to be treated with the
courtesy that this Court extends to all members of the Bar."
"I also realize that you had a difficult and a disagreeable task
in this case. You have been compelled to sit through a disgraceful
and disreputable performance on the part of a lawyer who is
unworthy of being a member of the profession, and I, as a member of
the legal profession, blush that we should have such a specimen in
MR. JUSTICE MINTON, dissenting.
This case goes back to the District Court for hearing by another
judge on charges as to which, on the record, this Court admits
petitioner is guilty. It is only a question of how much punishment
he shall receive. Two days, under all the circumstances, did not
seem too much to the Court of Appeals that reviewed the conduct of
judge and counsel, nor does it to me. I would not, after
apply the Cooke
case to the circumstances
of this proceeding. The writ of certiorari should be dismissed as