An important prosecution witness in a state criminal trial was
adjudged guilty of criminal contempt for his conduct as a witness
in a post-trial hearing presided over by the judge before whom the
contempt occurred at trial. A request for a continuance was denied,
and the witness, himself an attorney, did not defend, arguing only
that a continuance and a hearing before another judge should be
afforded. The judge found the witness' exclamation at trial that he
was being "coerced and intimidated and badgered" and that "[t]he
Court is suppressing the evidence" to be disruptive contempt of
court, and sentenced the witness to 10 days' imprisonment and a
fine.
Held:
1. Criticism of the court's rulings and failure to obey court
orders do not, on the facts of this case, constitute a personal
attack on the trial judge so productive of bias as to require his
disqualification in post-trial contempt proceedings. Pp.
376 U. S.
583-585.
2. The court's characterization of the witness' conduct during
the trial as contemptuous, disorderly, and malingering was not a
constitutionally disqualifying prejudgment of guilt, but, at most,
was a declaration of a charge against the witness; nor can judicial
bias be inferred from anything else in this record, particularly
where nonsummary proceedings were held, dispassionately and
decorously, after due notice and opportunity for hearing. Pp.
376 U. S.
586-588.
3. The question of a continuance is traditionally within the
trial judge's discretion, and not every denial of a request for
more time violates due process, even if the party thereafter offers
no evidence or defends without counsel; whether a denial of a
continuance is so arbitrary as to violate due process depends on
the facts of each case -- here, there was no constitutionally
inadequate time to hire counsel and prepare a defense. Pp.
376 U. S.
588-591.
12 N.Y.2d 1013, 1104, 189 N.E.2d 629, 190 N.E.2d 539, appeal
dismissed, certiorari granted, affirmed.
Page 376 U. S. 576
MR. JUSTICE WHITE delivered the opinion of the Court.
The appellant, Ungar, was adjudged guilty of criminal contempt
for his conduct as a witness in a state criminal trial in a hearing
presided over by the judge before whom the contempt occurred at
trial. The New York Court of Appeals affirmed the conviction, 12
N.Y.2d 1013, 1104, 239 N.Y.S.2d 135, 240 N.Y.S.2d 168, 189 N.E.2d
629, 190 N.E.2d 539, and we noted probable jurisdiction to consider
whether the procedures seemingly authorized by § 750 and 751 of the
New York Judiciary Law were consistent with the Due Process Clause
of the Fourteenth Amendment. 375 U.S. 809. We have decided that the
constitutional objections which this record shows to have been
seasonably tendered to the New York courts and decided by them are
without merit.
I
The contempt proceeding grew out of the trial of Hulan Jack for
conspiracy to obstruct justice and for violation of New York's
conflict of interests laws. Ungar, a lawyer, was an important
prosecution witness, familiar with the matters on which the charges
were based and immune from prosecution for his testimony on these
matters before the grand jury. From the outset of the second Jack
trial, Ungar, a hostile prosecution witness, engaged in much
wrangling with the prosecutor over the form of the questions asked,
and was unresponsive to various questions. Although counsel for the
defendant did not object, the witness believed that the
prosecutor's questions
Page 376 U. S. 577
presented the defendant's case in a bad light or failed to
elicit the whole truth. [
Footnote
1] On several occasions, the trial judge instructed the witness
to answer the questions as they were asked, if he could, but not to
rephrase the questions or to offer testimony gratuitously.
[
Footnote 2]
Page 376 U. S. 578
When Ungar failed to heed these instructions, the judge
admonished him in chambers "to confine his answers to the
questions" and to leave the defense to the accused's counsel; he
warned the witness that he would hold him to the natural
consequences of his acts. The pattern,
Page 376 U. S. 579
however, continued. On November 25, the third day Ungar was on
the stand, the court instructed him to give a responsive answer to
a question of apparent significance to the State's case. Thereupon,
Ungar, before answering, requested a recess, claiming that he was
being "pressured and coerced and intimidated into testifying" and
that he
Page 376 U. S. 580
was being "badgered by the Court and by the District Attorney."
When the court granted a short recess but refused Ungar permission
to leave the stand, the following ensued:
"The Witness: I can't testify, I'm sorry, your Honor. I am not
in any physical or mental condition to testify."
"The Court: Mr. Witness, no one asked you anything. Nobody is
questioning you. You are not testifying. We have taken a recess for
about three minutes of silence, and we will take a few
minutes."
"The Witness: I would like to leave the stand, your Honor."
"The Court: No, you may not leave the stand."
"The Court: Proceed, Mr. Scotti."
"The Witness: I am not going to answer questions, your Honor. I
am not going to testify in this confusion, and the Court nor anyone
else will make me testify in this emotional state. I am absolutely
unfit to testify because of your Honor's attitude and conduct
towards me. I am being coerced and intimidated and badgered. The
Court is suppressing the evidence."
"The Court: You are not only contemptuous but disorderly and
insolent. [
Footnote 3]"
The judge called a recess, during which counsel for the
defendant requested the court to appoint a doctor to determine
whether Ungar was malingering or incapable of testifying. Upon
resumption, Ungar represented that
Page 376 U. S. 581
he obtained his own medical assistance, the court agreed with
Ungar that he was competent to testify, and denied the request.
Ungar testified for another day without further incident.
The Jack trial ended on December 6, 1960, and, during the
afternoon of December 8, 1960, Judge Sarafite, the trial judge,
pursuant to the New York procedure governing nonsummary trial of
contempts, had served on Ungar a show cause order charging that
Ungar's remarks from the stand on November 25 constituted a willful
and disruptive contempt of court and ordering that the appellant
appear on December 13 at 10 a.m. to defend against the charges.
Judge Sarafite, presiding at the hearing, denied several motions
for a continuance, and Ungar's retained counsel was permitted to
withdraw upon informing the court that he had agreed to undertake
the defense only if Ungar could obtain a continuance. After
exhibits material to the charges were admitted into evidence, Ungar
was asked to defend. He declined, arguing that a continuance and a
hearing before another judge should be granted. The court found
Ungar guilty of contempt and, taking into consideration Ungar's
emotional state from the stress of the Jack trial, sentenced him to
10 days' imprisonment and imposed a fine.
The Appellate Division of the New York Supreme Court dismissed
the appeal, the state procedure for review of nonsummary contempt
proceedings, and denied the petition under Article 78, Civil
Practice Act, the procedure for review of summary contempt
convictions, [
Footnote 4]
Page 376 U. S. 582
both without opinion. 16 A.D.2d 617. The New York Court of
Appeals affirmed, also without opinion. 12 N.Y.2d 1013, 239
N.Y.S.2d 135, 189 N.E.2d 629. It denied the appellant's motion for
reargument, the only part of the record before this Court in which
appellant's federal constitutional claims were asserted, and
granted in part appellant's motion to amend the remittitur to show
that certain constitutional questions were passed upon in the
appeal. Treating both the appeal and the Article 78 proceeding
identically, the Court of Appeals ruled in the amended remittitur
that rights under the Fourteenth Amendment had been raised and
passed upon, and stated that
"appellant argued that such rights were violated by (1) the
trial judge's refusal to grant an adjournment of the contempt
proceeding upon proof of the engagement of his counsel; (2) the
trial judge's invoking of summary power under section 751 of the
Judiciary Law seven days after the end of the trial during which
the contempt was committed, and (3) the same trial judge's
presiding in the resulting contempt proceeding even though he was
the judge 'personally attacked.'"
In response to the third contention, the court ruled that the
appellant's remarks were not a personal attack upon the judge. 12
N.Y.2d 1104, 240 N.Y.S.2d 169, 190 N.E.2d 539.
II
We have determined that the appeal must be dismissed for want of
jurisdiction. The Jurisdictional Statement contains a statutory
attack on the validity of § 750, Judiciary Law, as unduly vague,
and on § 751 as authorizing a judge who is personally attacked to
preside over a contempt hearing and as authorizing summary
proceedings after the trial in which the contempt occurs. Nothing
in the record shows that these issues were tendered to the
Appellate Division or the Court of Appeals prior to the motion for
reargument or to amend the remittitur. Only the latter was granted,
and then only in part. Therefore
Page 376 U. S. 583
the amended remittitur is determinative in this Court on the
constitutional issues raised and necessarily passed upon in the
state courts.
Bailey v. Anderson, 326 U.
S. 203. That remittitur speaks of rights asserted and
passed upon under the Fourteenth Amendment, and does not indicate
that a state statute was "drawn in question" and sustained over
constitutional objections.
See Mergenthaler Linotype Co. v.
Davis, 251 U. S. 256,
251 U. S. 259;
Charleston Federal Savings & Loan Assn. v. Alderson,
324 U. S. 182,
324 U. S.
185-186. The appeal is accordingly dismissed. [
Footnote 5] Treating the appeal as a
petition for certiorari, certiorari is granted, 28 U.S.C. § 2103,
Anonymous v. Baker, 360 U. S. 287,
limited, however, to the three constitutional issues which the
amended remittitur states petitioner had argued and which, we
assume, were the constitutional questions the New York Court of
Appeals passed upon.
III
Petitioner, Ungar, claims his constitutional rights to a fair
hearing were violated because his contemptuous remarks were a
personal attack on the judge which necessarily, and without more,
biased the judge and disqualified him from presiding at the
post-trial contempt hearing. The New York Court of Appeals rejected
the claim, and we see no error in this conclusion. Assuming that
there are criticisms of judicial conduct which are so personal and
so probably productive of bias that the judge must disqualify
himself to avoid being the judge in his own case, we agree with the
New York court that this is not such a case.
Page 376 U. S. 584
It is true that Ungar objected strongly to the orders of the
court and to its conduct of the trial during his examination. His
final outburst, the subject of the contempt, was a flat refusal to
answer, when directed by the court, together with an intemperate
and strongly worded comment on the propriety of the court's ruling.
But we are unwilling to bottom a constitutional rule of
disqualification solely upon such disobedience to court orders and
criticism of its rulings during the course of a trial.
See
Nilva v. United States, 352 U. S. 385.
[
Footnote 6] We cannot assume
that judges are so irascible and sensitive that they cannot fairly
and impartially deal with resistance to their authority or with
highly charged arguments about the soundness of their decisions.
Apparently because Ungar was being required to answer the questions
asked, rather than some others which he would rather have answered,
and because he was directed to cease volunteering testimony, Ungar
claimed he was being "badgered" and "coerced," and that the court
was "suppressing the evidence." This was disruptive, recalcitrant
and disagreeable commentary, but hardly an insulting attack upon
the integrity of the judge carrying such potential for bias as to
require disqualification.
Nor is there anything else of substance in this record which
shows any deprivation of petitioner's right to be tried by an
unbiased and impartial judge without a direct personal interest in
the outcome of the hearing.
Tumey v. Ohio, 273 U.
S. 510.
In re Murchison, 349 U.
S. 133.
Page 376 U. S. 585
The Court in the latter case held that a judge acting as a
one-man grand jury investigating crime could not convict for
contempt witnesses who he believed testified falsely or
inadequately before him in secret grand jury proceedings, and is
not controlling here. For both
In re Oliver, 333 U.
S. 257, and
Murchison make abundantly clear
that the Court was not dealing therein with the traditional
category of contempts committed in open court, which cannot be
likened to the so-called contempts committed in
in camera
grand jury proceedings, especially when the latter the founded upon
perjury charges.
Unlike
Cooke v. United States, 267 U.
S. 517, and
Offutt v. United States,
348 U. S. 11, which
were contempt cases from lower federal courts in which the Court
found personal bias sufficient to disqualify the judge from
convicting for contempt, this record does not leave us with an
abiding impression that the trial judge permitted himself to become
personally embroiled with petitioner. Whatever disagreement there
was between petitioner and the judge stemmed from the petitioner's
resistance to the authority of the judge and its exercise during
the trial. Petitioner was strongly admonished that his conduct was
disruptive and disorderly, and that he would be held to the natural
consequences of his acts. But requiring petitioner to answer the
questions put to him and to cease caviling with the prosecutor was
fully in accord with the judicial obligation to maintain the
orderly administration of justice and to protect the rights of the
defendant on trial. Neither in the courtroom nor in the privacy of
chambers did the judge become embroiled in intemperate wrangling
with petitioner. [
Footnote 7]
The judge dealt firmly with Ungar, but
Page 376 U. S. 586
without animosity, and petitioner's final intemperate outburst
provoked no emotional reflex in the judge.
See Fisher v.
Pace, 336 U. S. 155. The
characterization of the petitioner's conduct as contemptuous,
disorderly, and
Page 376 U. S. 587
malingering was, at most, a declaration of a charge against the
petitioner, based on the judge's observations, which, without more,
was not a constitutionally disqualifying prejudgment of guilt, just
as issuance of a show cause
Page 376 U. S. 588
order in any criminal contempt case, based on information
brought to the attention of a judge, is not such a prejudgment of
guilt. Moreover, Judge Sarafite, although believing that Ungar's
conduct was disruptive of the trial, did not purport to proceed
summarily during or at the conclusion of the trial, but gave notice
and afforded an opportunity for a hearing which was conducted
dispassionately and with a decorum befitting a judicial proceeding.
In these circumstances, we cannot say there was bias, or such a
likelihood of bias or an appearance of bias that the judge was
unable to hold the balance between vindicating the interests of the
court and the interests of the accused.
IV
Petitioner's additional attack upon the hearing afforded him
centers upon the denial of his motion for a continuance
Page 376 U. S. 589
which is said to have deprived him of his constitutional right
to engage counsel and to defend against the charge. The State,
among other arguments, denies Ungar's right to any hearing at all,
relying upon
Sacher v. United States, 343 U. S.
1, as permitting the judge summarily to convict for
contempt at the conclusion of trial. We do not and need not,
however, deal with the circumstances in which a trial judge may or
may not constitutionally resort to summary proceedings after trial.
For, in this instance, assuming a nonsummary hearing was required,
[
Footnote 8] the hearing
afforded petitioner satisfied the requirements of due process.
[
Footnote 9]
In re
Oliver, 333 U. S. 257;
In re Green, 369 U. S. 689.
The matter of continuance is traditionally within the discretion
of the trial judge, and it is not every denial of a request for
more time that violates due process even if the party fails to
offer evidence or is compelled to defend without counsel.
Avery
v. Alabama, 308 U. S. 444.
Contrariwise, a myopic insistence upon expeditiousness in the face
of a justifiable request for delay can render the right to defend
with counsel an empty formality.
Chandler v. Fretag,
348 U. S. 3. There
are no mechanical tests for deciding when a denial of a continuance
is so arbitrary as to violate due process. The answer must be found
in the circumstances present in every case, particularly in the
reasons presented to the trial judge at the time the request is
denied.
Nilva v. United States, 352 U.
S. 385;
Torres v. United States, 270 F.2d
252
Page 376 U. S. 590
(C.A.9th Cir.);
cf. United States v. Arlen, 252 F.2d
491 (C.A.2d Cir.).
Ungar was served with a show cause order on Thursday at about 5
p.m., [
Footnote 10] the
hearing being scheduled for the following Tuesday at 10 a.m. Ungar
appeared with counsel at the appointed time. Two short continuances
were then granted to allow another lawyer to appear for Ungar. When
the latter arrived, the case was again called, and counsel
requested a one-week delay, informing the court that he was
unfamiliar with the case because he had not been contacted until
Saturday and because he was then busily engaged in trying another
case. The court denied the motion for adjournment, being of the
view that Ungar had been afforded sufficient time to hire counsel
who would be available at the time of the scheduled hearing. We
cannot say that this decision, in light of all the circumstances,
denied petitioner due process. The five days' notice given
petitioner was not a constitutionally inadequate time to hire
counsel and prepare a defense to a case in which the evidence was
fresh, the witnesses and the evidence readily available, the issues
limited and clear-cut, and the charge revolving about one statement
made by Ungar during a recently completed trial. Furthermore, the
motion for continuance was not made until the day of the scheduled
hearing, and Ungar himself was a lawyer familiar with the court's
practice of not granting adjournments.
After denial of the motion, counsel was permitted to withdraw,
and the hearing proceeded. Ungar himself then argued for a
continuance on the same grounds as his counsel and on the
additional ground that a few hours were needed to enable him to
present medical proof and expert testimony showing no contempt was
intended.
Page 376 U. S. 591
He also referred to a snowstorm on the previous Sunday and
Monday which allegedly had prevented any preparation with counsel.
The motion was again denied, and again we can find no denial of due
process. Ungar asserted no reason why the testimony and medical
proof, which he conceded were readily available and producible
within hours, was not obtained between Thursday and Tuesday and
presented in court at the time of the scheduled hearing, nor did he
name the witnesses he would call nor did he give the substance of
their testimony. The trial judge could reasonably have concluded
that petitioner's reliance upon inclement weather was less than
candid, since Ungar's counsel's previous statement that he could
not represent Ungar without an adjournment was grounded upon his
engagement in another trial. These matters are, of course,
arguable, and other judges in other courts might well grant a
continuance in these circumstances. But the fact that something is
arguable does not make it unconstitutional. Given the deference
necessarily due a state trial judge in regard to the denial or
granting of continuances, we cannot say these denials denied Ungar
due process of law.
The judgments are
Affirmed.
[
Footnote 1]
In explaining his conduct at trial, Ungar stated in his petition
to the New York Supreme Court, Appellate Division:
"On the basis of facts known to petitioner, it is petitioner's
belief and opinion that Hulan E. Jack is absolutely innocent of
each and every of the crimes charged against him, including those
of which he was found guilty at the second Jack Trial. Petitioner
believes that, in truth and in fact, evidence available to the
District Attorney of New York County, which would have created a
reasonable doubt as to Mr. Jack's guilt or innocence, was
deliberately and wilfully suppressed, as will appear more fully
hereinafter. One of the grounds of petitioner's conviction for
criminal contempt is petitioner's statement to the foregoing effect
during a moment of great emotional stress and physical and mental
exhaustion at the second trial of Hulan E. Jack on November 25,
1960."
[
Footnote 2]
The following incidents are typical:
"Q. You had discussions?"
"A. A preliminary discussion with Mr. Gale. If you want me to
tell you what he said, I will be glad to."
"Q. Mr. Ungar, just confine your answers to my questions."
"A. I am sorry."
"Q. You discussed this matter of the lease with Mr. Gale and
with Mr. Cymrot, is that correct?"
"A. No. I can't accept the way you put that question. I
discussed --"
"The Court: No."
"The Witness: No, I can't accept that."
"The Court: It is not a question of whether you accept it, it is
a question of whether you can answer it."
"The Witness: I can't answer that question that way."
"The Court: Next question."
"Q. The point is, you did discuss the matter of the lease with
Mr. Cymrot and Mr. Gale, am I correct?"
"A. I don't know how to answer that question the way you frame
it because --"
"The Court: That is enough. Next question, Mr. Scotti. Did you
talk to these people?"
"The Witness: Yes."
"The Court: Did they talk to you?"
"The Witness: Yes."
"The Court: About the lease, the terms of the lease?"
"The Witness: No."
"The Court: Next question."
"Q. Let me put this question to you, then: did there come a time
while you were discussing with the owners of 299 Broadway -- I
withdraw the question. When the lease, the proposed lease had been
submitted by the Bureau of Real Estate to the Board of Estimate for
their consideration, and before the scheduled date for a hearing
before the Board of Estimate, which was October 24, 1957, is that
when you discussed this matter of the proposed lease with the
defendant, Mr. Jack? . . ."
"A. I can say only at this time I do not remember. I can only
remember what you refreshed my recollection about, as to the
testimony I gave in the Grand Jury on this subject."
"Q. You say that when you are mindful of the fact that I had
refreshed your memory with respect to this matter?"
"A. No, I am mindful of the fact that you read to me certain
testimony that I had given before the Grand Jury on this matter,
but I cannot recall the conversations. I didn't recall it the last
time, and I do not recall them now, but I will adopt what you said
in the Grand Jury if I said it there."
"Mr. Baker thereupon requested a conference at the bench.
Counsel for both sides had a discussion with the judge at the bench
out of the hearing of the jury, after which the following took
place on the record in open court in the presence of the jury:"
"The Court: Now, Mr. Witness, the subject matter discussed at
the bench with the Court related to your volunteering about the
Grand Jury, concerning which you were not asked anything, and it
created a problem here which the lawyers discussed, which Mr. Baker
raised with the Court. There would have been no such problem if you
had not referred to Grand Jury testimony."
"Now, may I please ask you when you are asked a question, just
answer yes or no, please. Don't volunteer anything."
"Proceed."
"
* * * *"
"Q. This is your recollection of your previous testimony?"
"A. Yes."
"Q. Now, you did testify that you probably mentioned casually to
him that you were buying this property and that the city was the
lessee, and do you recall saying this at the last trial -- "
"Q. 'I can't tell you in substance because I have no independent
recollection of any conversation. I probably mentioned casually to
him that I was buying this property, and that the city is the
lessee, and I think I said that half a dozen times too.'"
"Q. Was that correct?"
"A. Just a minute. I don't know what you mean by the last part
of what you are reading. I probably said in my testimony half a
dozen times, not that I spoke to him, the defendant, a half a dozen
times."
"The Court: Mr. Witness, try not to do that, please. Just listen
to the question. The questioner is asking you, 'Did you testify as
follows at the last trial?' Try to confine your answer to that
question."
"The Witness: May I look at the testimony?"
"
* * * *"
"A. No, I don't have the figures in front of me at this
point."
"I would like to explain the matter, which I think could
simplify it very quickly."
"The Court: No, no, no, Mr. Ungar. Please don't volunteer
statements like that."
"As I indicated to you before, we have lawyers who conduct
litigation. They have a right to phrase questions. It is not for
you to volunteer anything. If you want to explain, or if the
question is not satisfactory to you, that's none of your
business."
"Now, please, keep that in mind, will you."
[
Footnote 3]
Section 750, Judiciary Law of New York, defines criminal
contempt as:
"1. Disorderly, contemptuous, or insolent behavior, committed
during [the court's] sitting, in its immediate view and presence,
and directly tending to interrupt its proceedings, or to impair the
respect due to its authority. . . ."
[
Footnote 4]
Douglas v. Adel, 269 N.Y. 144, 199 N.E. 35;
People
ex rel. Negus v. Dwyer, 90 N.Y. 402;
Pugh v. Winter,
253 App.Div. 295, 2 N.Y.S.2d 9;
People ex rel. Brewer v.
Platzek, 133 App.Div. 25, 117 N.Y.S. 852.
Decisions of the New York courts make clear that a contempt
committed in the presence of the court may be punished by the
nonsummary procedure applicable to other contempts of court.
Goodman v. Sala, 268 App.Div. 826, 49 N.Y.S.2d 245;
People ex rel. Choate v. Barrett, 56 Hun 351, 9 N.Y.S.
321,
aff'd, 121 N.Y. 678, 24 N.E. 1095.
[
Footnote 5]
Appellant concedes that the vagueness objection to the state
statute was not explicitly argued to the Court of Appeals. The
trial judge did not purport to invoke summary power under § 751,
Judiciary Law, and the Court of Appeals expressly declined to
construe § 751 to authorize a trial judge personally attacked to
preside at the contempt proceedings.
[
Footnote 6]
See also Fed.Rules Crim.Proc. 42(b):
"Disposition Upon Notice and Hearing. A criminal contempt
[except one subject to summary disposition] . . . shall be
prosecuted on notice. The notice shall state the time and place of
hearing, allowing 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. . . . 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 the defendant's consent."
[
Footnote 7]
The following excerpt from the discussion in the judge's chamber
following persistent resistance to instructions to answer questions
is probably the most intense disagreement between petitioner and
the judge that occurred during the trial.
"The Court: Now, Mr. Witness, this case was tried once before,
and took considerable time. You were a witness for many days. A
number of incidents occurred in that trial which, in my judgment,
directly tended to interrupt the proceedings of the Court and to
impair the respect due to the authority of the Court, and you were
the one who created those incidents, in my judgment."
"I told you then, at the first trial, that you were creating a
very serious problem for the Court and that, as a lawyer, I assumed
you knew what the problem was."
"I should like very much to avoid any repetition of what
happened the last time."
"We each have a function to perform here. Whether it is an
agreeable function or a disagreeable function is of no
concern."
"Now I have said to you up to now on a number of occasions that
you should confine your answers to the questions, not to volunteer,
not to get into any dispute or discussions, not to try to indicate
what you think the question should be or how you should answer
it."
"This is a trial before the jury, not before the Court alone. As
a judge, I must rule in accordance with my understanding of the
law, which I am doing."
"I hope you understand what I am saying, Mr. Ungar. Do you?"
"The Witness: Well, I would like to say a word, if I may."
"The Court: No."
"The Witness: I can't understand what your Honor is saying."
"The Court: Then if you can't understand -- "
"The Witness: I understand what your Honor is saying -- "
"The Court: I don't want anything further, Mr. Ungar. All I want
to add to what I have said, since you said you do not understand
what I am saying -- "
"The Witness: I understand what your Honor is saying."
"The Court: You said you didn't."
"The Witness: But I cannot understand it in a vacuum; that's
what I am trying to say, your Honor."
"The Court: Don't argue with me, Mr. Ungar."
"The Witness: I have got to understand the question, in order to
answer it. I can't answer a question merely if your Honor says,
'Answer it,' if it doesn't make sense to me or if it's creating a
false impression --"
"The Court: Will you desist. You see, it's none of your business
whether it creates in your judgment a false impression or not. The
defendant is represented here by a lawyer, and the People are
represented by a lawyer. It is for them to conduct this litigation,
and not you."
"Now I am only going to make one more statement, and we will
return to the courtroom."
"There is a rule of law that every man is presumed to intend the
natural consequences of his act. I am going to hold you to that
standard. And whether you tell me that you understand what I said
or not will not be the test that I shall use in whatever action I
propose to take."
"Not only should you, as a man and a citizen, be held to intend
the natural consequences of your act, but you as a lawyer should be
held to a higher standard of knowing that you are responsible for
the natural consequences of your act."
"Also, there is a rule that every citizen is presumed to know
the law. I take it that every citizen does not know the rules of
the law of evidence. But, as a lawyer, you certainly know the rules
of law of evidence."
"Let's return to the courtroom."
"The Witness: I think I have a right, if your Honor please
--"
"The Court: I shall not -- "
"The Witness: -- to have a statement made."
"Your Honor has made a statement which is intimidating. Your
Honor has made a statement which is coercive, and I think I have a
right to make a statement."
"Now if your Honor intends to take action against me, I submit
that the action should be taken here and now. But I insist upon a
right, and think that I am justified as a witness to make a
statement before your Honor takes any action."
"I have a right to understand any question that's propounded to
me, and I have a right, if a question is framed in such a way which
creates a reflection upon me and which is not a fact -- I have a
right --"
"The Court: Keep your voice down, Mr. Ungar. I kept my voice
down."
"The Witness: I'm sorry, I apologize."
"The Court: And stop doing that. Don't raise your voice. And you
have said enough. I have your point."
"Now the Court is not intimidating you. It is not coercing you,
and it is not threatening you."
"The Witness: I disagree with your Honor."
"The Court: I didn't ask you whether you disagreed."
"And I suggest to you, Mr. Ungar, that you speak when you are
asked to speak, from now on -- please."
"Now the purpose of calling you in here was not to intimidate
you or coerce you in the slightest. But the purpose is to avoid a
repetition in the courtroom of the unseemly performance of the last
trial, which I shall not tolerate."
"Now let's return to the courtroom."
"The Witness: I believe I have tried -- "
"The Court: I told you to speak when you were asked to
speak."
"The Witness: Have I a right -- "
"The Court: No."
"The Witness: Have I a right to understand questions?"
"The Court: Let's return to the Courtroom."
"The Witness: I am asking the Court if I have a right to ask the
question --"
[
Footnote 8]
This disposes of petitioner's second argument set out in the
amended remittitur of the Court of Appeals -- that the invocation
of summary power seven days after the end of the trial during which
the contempt was committed denied due process.
[
Footnote 9]
These requirements include the right to be adequately advised of
charges, a reasonable opportunity to meet the charges by way of
defense or mitigation, representation by counsel, and an adequate
opportunity to call witnesses.
[
Footnote 10]
Ungar was also told after his outburst on November 25 "to keep
himself available" for further proceedings.
MR. JUSTICE HARLAN, concurring.
I agree with and join the opinion of the Court, but wish to add
that the contempt procedure employed by Judge Sarafite accorded
Ungar more than his due under
Sacher v. United States,
343 U. S. 1. In
light of that case, it is clear that Judge Sarafite, so far as the
Federal Constitution is concerned, could have proceeded at the
close of the main trial to hold Ungar in contempt without any
hearing at all. The fact that the contempt adjudication followed a
five-day notice given Ungar two days
Page 376 U. S. 592
after the close of the trial cannot, as a constitutional matter,
well be deemed to have extinguished the judge's power to proceed
summarily.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. JUSTICE
GOLDBERG concur, dissenting.
This case is a classic example of one situation where the judge
who cites a person for contempt should not preside over the
contempt trial. [
Footnote 2/1] That
was the result in
Offutt v. United States, 348 U. S.
11,
348 U. S. 17,
where the judge became "personally embroiled" with the person he
later held in contempt and we, pursuant to our supervisory
authority over the federal system, ordered a new trial before a
disinterested judge. The same result is required under due process
standards.
In re Murchison, 349 U.
S. 133.
I start with what Chief Justice Taft wrote in
Cooke v.
United States, 267 U. S. 517,
267 U. S.
539:
"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,
Page 376 U. S. 593
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."
There is in our annals a no more apt case for following that
course than the present one. Here, the judge who cited petitioner
for contempt did become "personally embroiled" with him, and, in
substance, adjudged him a malingerer and found him guilty before
the trial -- indeed, before the citation.
Petitioner, a witness in a criminal trial in a New York court,
was found guilty of contempt of court by the judge who presided at
the trial, the contempt being tried after the main trial had ended.
[
Footnote 2/2] He was fined $250
and sentenced to 10 days in jail. The conviction was sustained by
the Court of Appeals without an opinion. That court, however, said
in its remittitur:
". . . we point out that, where the alleged contempt consists
of the making of charges of wrongdoing by the trial judge
himself, he should, where disposition of the contempt charge
can be withheld until after the trial and where it is otherwise
practicable, order the contempt proceeding to be tried before a
different judge."
(Italics added.)
Page 376 U. S. 594
It was because the Court of Appeals thought that this contempt
did not involve "the making of charges of wrongdoing by the trial
judge himself" that it upheld trial of this contempt charge by the
offended judge. But this contempt charge, as I read it, did charge
such wrongdoing:
"On said November 25, 1960, the respondent, as a witness in said
trial committed a willful contempt of court during the sitting of
the Court, and in its immediate view and presence, in that he
willfully and in a repeated effort, obvious to the Court, to
disrupt the orderly trial of the case therein, culminated his
contemptuous conduct by shouting in a loud, angry, disorderly,
contemptuous, and insolent tone directly tending to interrupt the
proceedings of the Court and to impair the respect due to the
authority of the Court:"
"'
I am absolutely unfit to testify because of your Honor's
attitude and conduct towards me. I am being coerced and intimidated
and badgered. The Court is suppressing the evidence.'"
(Italics added.)
The charge that the trial judge was "suppressing the evidence"
certainly was a charge of "wrongdoing," in the sense of
malfeasance. The witness did indeed complain of the trial judge's
"attitude and conduct" toward him. When he said "I am being coerced
and intimidated and badgered," he meant in the setting of those
words not that the prosecutor alone was misconducting himself, but
that the judge was also. Any doubt is dispelled by his final
statement, "The Court is suppressing the evidence." It is obvious
that, whatever else may be said of the alleged contempt, it was
aimed at the judge, and implicated him and the judicial
proprieties.
The episode was a head-on collision between the judge and a
witness who said he could not understand the
Page 376 U. S. 595
questions asked him, and therefore could not truthfully answer.
It was a head-on collision between a witness who complained he was
unfit to testify and a judge who said his physical condition was
faked:
"The Witness: If your Honor please, I want to recess at this
point. I can't testify. I am too upset, and I am much too nervous.
And I can't testify under these circumstances. I am not being a
voluntary witness. I am being pressured and coerced and intimidated
into testifying, and I can't testify under these
circumstances."
"
* * * *"
"The Court: We shall pause for a minute or two, Mr.
Witness."
"(Whereupon, there was a brief interval of silence in the
courtroom.)"
"The Witness: I can't testify, your Honor. I am shaking all
over. And I must have a recess, I just am absolutely a bundle of
nerves at this point, and I don't know what I'm doing or saying any
more."
"I ask for the privilege of leaving the stand, your Honor."
"The Court: No, you will remain on the stand."
"The Witness: I can't testify, I'm sorry, your Honor. I am not
in any physical or mental condition to testify."
"The Court: Mr. Witness, no one asked you anything. Nobody is
questioning you. You are not testifying. We have taken a recess for
about three minutes of silence, and we will take a few more
minutes."
"The Witness: I would like to leave the stand, your Honor."
"The Court: No, you may not leave the stand. "
Page 376 U. S. 596
"(Whereupon, there was a further brief interval of silence in
the courtroom.)"
"The Court: Proceed, Mr. Scotti."
"The Witness: I am not going to answer questions, your Honor. I
am not going to testify in this confusion, and the Court nor anyone
else will make me testify in this emotional state. I am absolutely
unfit to testify because of your Honor's attitude and conduct
towards me. I am being coerced and intimidated and badgered. The
Court is suppressing the evidence."
"The Court:
You are not only contemptuous but disorderly and
insolent. [Italics added.]"
"The Witness: I have asked for the privilege of leaving the
stand for five minutes."
"The Court: Put your question, Mr. Scotti."
"
* * * *"
"Q. Mr. Ungar, did you tell Mr. Jack that Saturday morning that
there was a conflict between your story to me and Mr. Bechtel's
story to me?"
"A. I can't answer any questions. I am not even concentrating on
what you are saying. I can't even think clearly at this minute any
more."
"The Court: Do you refuse to answer?"
"The Witness: I don't know what he is talking about, Judge. I am
an emotional wreck at this time. I am asking for a recess. I ask
the right to get off this stand so that I can contain myself"
"The Court: Do you refuse to answer the question, Mr.
Ungar?"
"The Witness: I said I can't answer the question, your
Honor."
"The Court: Put the question, Mr. Reporter."
"Mr. Scotti: Mr. Reporter, read the question."
"(The question was read by the Court Stenographer as
follows:
Page 376 U. S. 597
'Q. Mr. Ungar, did you tell Mr. Jack that Saturday morning that
there was a conflict between your story to me and Mr. Bechtel's
story to me?')"
"The Court: Let the record show that the defendant has remained
silent and has not answered the question for four minutes."
"Mr. Scotti: You mean the witness, your Honor."
"The Court: What did I say?"
"Mr. Scotti: The defendant."
"The Court: Obviously I meant the witness. Very well, we will
advance our luncheon recess."
"Do not discuss the case, ladies and gentlemen, do not form or
express any opinion as to the guilt or innocence of this defendant
until the case is finally submitted to you. Since we are advancing
the hour when we start our luncheon recess, we will get back here
at 1:45. You may retire."
"(The jurors then left the Court room, and the following took
place in their absence:)"
"Mr. Baker [counsel for defendant]: May I be heard before the
Court leaves?"
"The Court: Yes."
"Mr. Baker: There has been a statement made by the witness that
he is emotionally or mentally incapable of testifying. So that the
record would be crystal clear, I make a request of the Court to
appoint a doctor to determine whether or not there is malingering
on the part of the witness or anything of the sort."
"The Court: In my judgment,
this is as near as malingering
could ever be determined from my observation. [Italics
added.]"
"The Witness: I join in that request, if your Honor please."
"The Court: What is the ground of your application? "
Page 376 U. S. 598
"Mr. Baker: The ground of my application is, if the Court
please, the law presumes that, when a witness testifies, he is to
be lucid. This witness says he is not. Any testimony he gives may
be prejudicial to the rights and interests of the defendant. That's
the ground of my objection, and, so that the record would be clear,
whether this is malingering or not, there is a mental and emotional
condition presently existing in this witness so that he could not
be a competent witness to testify, all of which may be to the
detriment of the defendant."
"The Court: I shall reserve decision on your application, and I
shall direct the witness to remain in court until I decide it. The
Court will take a recess until 1:45."
"(After a short recess, the Court returned to the courtroom, Mr.
Baker and the defendant being present, and the following took
place:)"
"The Court: Mr. Baker, I wanted to get both sides here. The
reason I have asked Mr. Ungar to remain was because, if I had made
a decision, why, then, I could have acted on it. Since I haven't
made a decision, I see no point in having him remain here. He is
entitled to take his luncheon recess the same as anybody else, but
I didn't want to lose time if I could help it."
"Mr. Baker: I am glad the Court indicated the purpose of asking
the witness to remain."
"The Court: That was the only purpose, because I said to you I
reserve decision, and I thought I might be able to decide it and
save time. Would it be a burden to give me another five
minutes?"
"Mr. Baker: No, your Honor."
"The Witness: Is your Honor addressing me?"
"The Court: Yes. "
Page 376 U. S. 599
"The Witness: No, it is not a burden, your Honor, because I was
not malingering, and I have been shaking ever since this issue
started."
"The Court: I just want five more minutes, and if I don't decide
it by that time, then we will all go to lunch."
"(A short recess was taken; the Court left the courtroom and
returned.)"
"The Court: Mr. Ungar, I haven't made up my mind what course of
action I should take. I think you ought to take a recess until
1:45. Let us see what the situation is at that time."
"
* * * *"
"The Court: Now, Mr. Witness, before we took a luncheon recess,
you personally, as a witness, had asked for a recess. Do you recall
that?"
"The Witness: I do, your Honor."
"The Court: Now that we have had the luncheon recess and you
have come back, do you still ask for a recess?"
"The Witness: Well, I would like to report to the Court that I
went to the hospital and received an injection, and I think that I
can proceed temporarily, in addition to the pills that I have taken
this morning."
"The Court: Very well."
"Mr. Scotti: May I proceed, your Honor?"
"The Court: Yes."
When counsel for the defendant again asked for a ruling on the
motion to have a doctor examine petitioner, the Court said:
"I thought it was obvious to everyone that, when the witness
resumed the stand at 1:45 P.M. after the luncheon recess, and the
Court asked the witness
Page 376 U. S. 600
whether his request for a recess while testifying on the stand,
and before the announcement of the luncheon recess, still stood.
The witness said he had been to a hospital to get a shot, and that
he could."
"Mr. Scotti: That he could proceed temporarily."
"The Court: That he could proceed temporarily, and I thought
that everyone then understood that the witness himself had
concluded the issue by declaring that he was then able to proceed,
and consequently made no formal declaration on the record."
"To avoid any possible question about that, I now deny the
motion."
A financial interest in the outcome of a case, as in
Tumey
v. Ohio, 273 U. S. 510,
will, of course, disqualify a judge from sitting. As Chief Justice
Taft said in that case:
"The mayor received for his fees and costs in the present case
$12, and from such costs under the Prohibition Act for seven months
he made about $100 a month, in addition to his salary. We cannot
regard the prospect of receipt or loss of such an emolument in each
case as a minute, remote, trifling or insignificant interest. It is
certainly not fair to each defendant, brought before the mayor for
the careful and judicial consideration of his guilt or innocence,
that the prospect of such a loss by the mayor should weigh against
his acquittal."
Id. at
273 U. S.
531-532.
The bias here is not financial, but emotional.
In re
Murchison, supra, involved a closely related question arising
in a state case. There, the judge, who served as the "one-man grand
jury," also had doubts about the way in which a witness testified
before him. He charged him with contempt for refusing to answer. We
reversed the conviction, saying,
"It would be very strange if our system of law permitted a judge
to act as a grand jury and then try the
Page 376 U. S. 601
very persons accused as a result of his investigations. Perhaps
no State has ever forced a defendant to accept grand jurors as
proper trial jurors to pass on charges growing out of their
hearings. A single 'judge-grand jury' is even more a part of the
accusatory process than an ordinary lay grand juror. Having been a
part of that process, a judge cannot be, in the very nature of
things, wholly disinterested in the conviction or acquittal of
those accused. While he would not likely have all the zeal of a
prosecutor, it can certainly not be said that he would have none of
that zeal. Fair trials are too important a part of our free society
to let prosecuting judges be trial judges of the charges they
prefer."
349 U.S. at
349 U. S.
137.
The present case is a stronger case for reversal than
In re
Murchison. There, the bias of the judge was inferred. Here, it
is apparent on the face of the record. For when the witness said
"The Court is suppressing the evidence," the judge replied,
"
You are not only contemptuous but disorderly and
insolent." (Italics added.) Moreover, while petitioner was
still on the stand as a witness in the main case, the judge
condemned him as a malingerer and refused to order a medical
examination. Thus, long before the contempt trial -- long before
the contempt charge had been filed -- the judge, who later
sentenced the witness for contempt, had concluded -- and stated in
so many words -- that the witness was "contemptuous." It is a
travesty on American justice to allow a judge who has announced his
decision on the issue of guilt prior to the trial to sit in
judgment at the trial.
Judges are human; and judges caught up in an altercation with a
witness do not have the objectivity to give that person a fair
trial. In the present case, the basic issue was whether the witness
was sick or whether he was faking. The judge, who found him guilty
for an outburst
Page 376 U. S. 602
that might have been excused coming from the lips of a sick man,
had announced his decision when the witness asked to be excused. He
then said that the witness was a malingerer, and he refused to call
a doctor.
This aspect of the case emphasizes a second reason why a
different judge should have tried the contempt charge. The judge
who accused the witness of malingering was not a medical expert,
and his conclusion that the witness was faking, though admissible
as evidence, would not be conclusive. This crucial fact was one
that the judge should not be left to decide on the basis that he
saw the witness, and therefore could be depended upon to determine
that he was not ill, as, contrariwise, he could have been depended
upon to know that the accused had openly resisted a marshal, as in
Ex parte Terry, 128 U. S. 289.
A man going on trial before that judge is denied a basic
constitutional right -- the right to examine and cross-examine. As
we said in
In re Murchison, supra, if the emotionally
involved trial judge tries the contempt,
"the result would be either that the defendant must be deprived
of examining or cross-examining him or else there would be the
spectacle of the trial judge presenting testimony upon which he
must finally pass in determining the guilt or innocence of the
defendant. In either event, the State would have the benefit of the
judge's personal knowledge, while the accused would be denied an
effective opportunity to cross-examine. The right of a defendant to
examine and cross-examine witnesses is too essential to a fair
trial to have that right jeopardized in such way."
349 U.S. at
349 U. S.
139.
An impartial judge, not caught up in the cross-currents of
emotions enveloping the contempt charge, is the only one who can
protect all rights and determine whether a contempt was committed
or whether the case is either one of judicial nerves on edge or of
judicial tyranny.
Page 376 U. S. 603
[
Footnote 2/1]
This is not a case of summary contempt during the course of a
trial, where "immediate punishment is essential to prevent
demoralization of the court's authority . . . before the
public.'" In re Oliver, 333 U. S. 257,
333 U. S.
275.
[
Footnote 2/2]
Unlike
Sacher v. United States, 343 U. S.
1, where the trial judge at the end of the trial
summarily found counsel participating in the trial guilty of
contempt, the judge in the instant case, following the procedure
recommended by
Cooke v. United States, 267 U.
S. 517, issued a rule to show cause why the witness
should not be held in contempt, and held a hearing on that
citation.
MR. JUSTICE GOLDBERG, with whom MR. JUSTICE BLACK and MR.
JUSTICE DOUGLAS join, dissenting.
I agree with my Brother DOUGLAS that due process of law requires
that this contempt be tried before a different judge.
This Court has recognized that the power of a judge to impose
punishment for criminal contempt without notice or hearing is:
"capable of grave abuses, and for that reason, [the Court has
never given any] encouragement to its expansion beyond the
suppression and punishment of the court-disrupting misconduct which
alone justified its exercise."
In re Oliver, 333 U. S. 257,
333 U. S. 274.
The Court has also "marked the limits of contempt authority in
general as being
the least possible power adequate to the end
proposed.'" Ibid., quoting Anderson
v. Dunn, 6 Wheat. 204, 19 U. S.
231.
I would hold, therefore, that the Constitution forbids a judge
to impose punishment for such contempt without notice or hearing,
except when (1) the contempt creates such
"an open threat to the orderly procedure of the court . . .
[that, if] not instantly suppressed and punished, demoralization of
the court's authority will follow,"
In re Oliver, supra, at
333 U. S. 275
of 333, quoting
Cooke v. United States, 267 U.
S. 517,
267 U. S. 536,
and when (2)
"no explanation could mitigate [contemner's] offence, or
disprove the fact that he had committed such contempt of [the
court's] authority and dignity as deserved instant punishment."
Ex parte Terry, 128 U. S. 289,
128 U. S.
310.
The power to punish in so summary a fashion is, as the New York
Court of Appeals recognized, fraught with danger, particularly when
the alleged contempt consists of a charge of wrongdoing against the
very person sitting in judgment of the contempt.
Page 376 U. S. 604
MR. JUSTICE DOUGLAS has convincingly demonstrated that the
contempt charged here was not such an open threat to the orderly
procedure of the court as to necessitate instant punishment, that
an explanation or the introduction of evidence could have mitigated
or disproved the offense, and that it consisted essentially of a
charge of wrongdoing against the very person sitting in judgment of
the contempt.
I conclude, therefore, that this contempt could not
constitutionally have been tried summarily,
* and that it
should have been tried before a different judge.
* There may well be instances of disruption where the trial
judge correctly feels that some immediate action is necessary to
restore order, but that a full, immediate civil or criminal
contempt proceeding might cause undue prejudice against the
defendant in the main trial. In attempting to accommodate these
conflicting demands, the trial judge should have some latitude,
limited, of course, by the overriding principle of the law of
contempts that the power exercised be "the least possible power
adequate to the end proposed."
Anderson v.
Dunn, 6 Wheat. 204,
19 U. S. 231;
In re Oliver, 333 U. S. 257,
333 U. S.
274.