Respondent, who was on trial for robbery, was removed from the
courtroom for repeated disruptive behavior and the use of vile and
abusive language directed at the trial judge, notwithstanding the
judge's prior warning that removal would follow another outburst.
Appointed counsel represented respondent during the period
respondent was not allowed in the courtroom, principally the
presentation of the State's case. Having given some assurances of
good conduct, respondent was allowed to return to the courtroom
while appointed counsel presented his defense. Respondent was
convicted. Following the State Supreme Court's affirmance,
respondent filed a petition for a writ of habeas corpus in federal
court, contending that he had been deprived of his right under the
Sixth and Fourteenth Amendments to confront the witnesses against
him. The District Court declined to issue the writ. The Court of
Appeals reversed, holding that a defendant's Sixth Amendment right
to attend his own trial was so "absolute" that, regardless of how
unruly his conduct, he could never be held to have lost that right
so long as he insisted on it, as respondent had.
Held:
1. A defendant can lose his right to be present at trial if,
following the judge's warning that he will be removed if his
disruptive behavior continues, he nevertheless insists on
conducting himself in such a disruptive manner that his trial
cannot proceed if he remains in the courtroom. He can reclaim the
right to be present as soon as he is willing to comport himself
with decorum and respect. Pp.
397 U. S.
342-343.
2. A trial judge confronted by a defendant's disruptive conduct
can exercise discretion to meet the circumstances of the case, and
though no single formula is best for all situations, there are at
least three constitutionally permissible approaches for the court's
handling of an obstreperous defendant: (1) bind and gag him as a
last resort, thereby keeping him present; (2) cite him for criminal
or civil contempt; or (3) remove him from the courtroom, while the
trial continues, until he promises to conduct himself properly. Pp.
397 U. S.
343-346.
Page 397 U. S. 338
3. On the facts of this case, the trial judge did not abuse his
discretion, respondent, through his disruptive behavior, having
lost his right to confrontation under the Sixth and Fourteenth
Amendments. Pp.
397 U. S.
345-347.
413 F.2d 232, reversed.
MR. JUSTICE BLACK delivered the opinion of the Court.
The Confrontation Clause of the Sixth Amendment to the United
States Constitution provides that: "In all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the
witnesses against him. . . ." We have held that the Fourteenth
Amendment makes the guarantees of this clause obligatory upon the
States.
Pointer v. Texas, 380 U.
S. 400 (1965). One of the most basic of the rights
guaranteed by the Confrontation Clause is the accused's right to be
present in the courtroom at every stage of his trial.
Lewis v.
United States, 146 U. S. 370
(1892). The question presented in this case is whether an accused
can claim the benefit of this constitutional right to remain in the
courtroom while, at the same time, he engages in speech and conduct
which is so noisy, disorderly, and disruptive that it is
exceedingly difficult or wholly impossible to carry on the
trial.
The issue arose in the following way. The respondent, Allen, was
convicted by an Illinois jury of armed robbery, and was sentenced
to serve 10 to 30 years in the Illinois State Penitentiary. The
evidence against him showed
Page 397 U. S. 339
that, on August 12, 1956, he entered a tavern in Illinois and,
after ordering a drink, took $200 from the bartender at gunpoint.
The Supreme Court of Illinois affirmed his conviction,
People
v. Allen, 37 Ill. 2d
167,
226 N.E.2d 1
(1967), and this Court denied certiorari.
389 U.
S. 907 (1967). Later, Allen filed a petition for a writ
of habeas corpus in federal court, alleging that he had been
wrongfully deprived by the Illinois trial judge of his
constitutional right to remain present throughout his trial.
Finding no constitutional violation, the District Court declined to
issue the writ. The Court of Appeals reversed, 413 F.2d 232 (1969),
Judge Hastings dissenting.
The facts surrounding Allen's expulsion from the courtroom are
set out in the Court of Appeals' opinion sustaining Allen's
contention:
"After his indictment and during the pretrial stage, the
petitioner [Allen] refused court-appointed counsel and indicated to
the trial court on several occasions that he wished to conduct his
own defense. After considerable argument by the petitioner, the
trial judge told him,"
"I'll let you be your own lawyer, but I'll ask Mr. Kelly
[court-appointed counsel] [to] sit in and protect the record for
you, insofar as possible."
"The trial began on September 9, 1957. After the State's
Attorney had accepted the first four jurors following their
voir dire examination, the petitioner began examining the
first juror and continued at great length. Finally, the trial judge
interrupted the petitioner, requesting him to confine his questions
solely to matters relating to the prospective juror's
qualifications. At that point, the petitioner started to argue with
the judge in a most abusive and disrespectful manner. At last, and
seemingly in desperation, the judge asked appointed
Page 397 U. S. 340
counsel to proceed with the examination of the jurors. The
petitioner continued to talk, proclaiming that the appointed
attorney as not going to act as his lawyer. He terminated his
remarks by saying, 'When I go out for lunchtime, you're [the judge]
going to be a corpse here.' At that point, he tore the file which
his attorney had and threw the papers on the floor. The trial judge
thereupon stated to the petitioner, 'One more outbreak of that sort
and I'll remove you from the courtroom.' This warning had no effect
on the petitioner. He continued to talk back to the judge,
saying,"
"There's not going to be no trial, either. I'm going to sit here
and you're going to talk and you can bring your shackles out and
straight jacket and put them on me and tape my mouth, but it will
do no good, because there's not going to be no trial."
"After more abusive remarks by the petitioner, the trial judge
ordered the trial to proceed in the petitioner's absence. The
petitioner was removed from the courtroom. The
voir dire
examination then continued, and the jury was selected in the
absence of the petitioner."
"After a noon recess, and before the jury was brought into the
courtroom, the petitioner, appearing before the judge, complained
about the fairness of the trial and his appointed attorney. He also
said he wanted to be present in the court during his trial. In
reply, the judge said that the petitioner would be permitted to
remain in the courtroom if he 'behaved [himself] and [did] not
interfere with the introduction of the case.' The jury was brought
in and seated. Counsel for the petitioner then moved to exclude the
witnesses from the courtroom. The [petitioner] protested this
effort
Page 397 U. S. 341
on the part of his attorney, saying:"
"There is going to be no proceeding. I'm going to start talking
and I'm going to keep on talking all through the trial. There's not
going to be no trial like this. I want my sister and my friends
here in court to testify for me."
"The trial judge thereupon ordered the petitioner removed from
the courtroom."
413 F.2d at 233-234. After this second removal, Allen remained
out of the courtroom during the presentation of the State's case in
chief, except that he was brought in on several occasions for
purposes of identification. During one of these latter appearances,
Allen responded to one of the judge's questions with vile and
abusive language. After the prosecution's case had been presented,
the trial judge reiterated his promise to Allen that he could
return to the courtroom whenever he agreed to conduct himself
properly. Allen gave some assurances of proper conduct, and was
permitted to be present through the remainder of the trial,
principally his defense, which was conducted by his appointed
counsel.
The Court of Appeals went on to hold that the Supreme Court of
Illinois was wrong in ruling that Allen had, by his conduct,
relinquished his constitutional right to be present, declaring
that:
"No conditions may be imposed on the absolute right of a
criminal defendant to be present at all stages of the proceeding.
The insistence of a defendant that he exercise this right under
unreasonable conditions does not amount to a waiver. Such
conditions, if insisted upon, should and must be dealt with in a
manner that does not compel the relinquishment of his right."
"In light of the decision in
Hopt v. Utah, 110 U. S.
574 . . . (1884) and
Shields v. United
States, 273
Page 397 U. S. 342
U.S. 583 . . . (1927), as well as the constitutional mandate of
the sixth amendment, we are of the view that the defendant should
not have been excluded from the courtroom during his trial despite
his disruptive and disrespectful conduct. The proper course for the
trial judge was to have restrained the defendant by whatever means
necessary, even if those means included his being shackled and
gagged."
413 F.2d at 235.
The Court of Appeals felt that the defendant's Sixth Amendment
right to be present at his own trial was so "absolute" that, no
matter how unruly or disruptive the defendant's conduct might be,
he could never be held to have lost that right so long as he
continued to insist upon it, as Allen clearly did. Therefore the
Court of Appeals concluded that a trial judge could never expel a
defendant from his own trial, and that the judge's ultimate remedy,
when faced with an obstreperous defendant, like Allen, who
determines to make his trial impossible, is to bind and gag him.
[
Footnote 1] We cannot agree
that the Sixth Amendment, the cases upon which the Court of Appeals
relied, or any other cases of this Court so handicap a trial judge
in conducting a criminal trial. The broad dicta in
Hopt v.
Utah, supra, and
Lewis v. United States, 146 U.
S. 370 (1892), that a trial can never continue in the
defendant's absence have been expressly rejected.
Diaz v.
United States, 223 U. S. 442
(1912). We accept instead the statement of Mr. Justice Cardozo,
who, speaking for the Court in
Snyder v. Massachusetts,
291 U. S. 97 106
(1934), said: "No doubt the privilege [of personally confronting
witnesses] may be lost by
Page 397 U. S. 343
consent, or at times even by misconduct." [
Footnote 2] Although mindful that courts must
indulge every reasonable presumption against the loss of
constitutional rights,
Johnson v. Zerbst, 304 U.
S. 458,
304 U. S. 464
(1938), we explicitly hold today that a defendant can lose his
right to be present at trial if, after he has been warned by the
judge that he will be removed if he continues his disruptive
behavior, he nevertheless insists on conducting himself in a manner
so disorderly, disruptive, and disrespectful of the court that his
trial cannot be carried on with him in the courtroom. [
Footnote 3] Once lost, the right to be
present can, of course. be reclaimed as soon as the defendant is
willing to conduct himself consistently with the decorum and
respect inherent in the concept of courts and judicial
proceedings.
It is essential to the proper administration of criminal justice
that dignity, order, and decorum be the hallmarks of all court
proceedings in our country. The flagrant disregard in the courtroom
of elementary standards of proper conduct should not and cannot be
tolerated. We believe trial judges confronted with disruptive,
contumacious, stubbornly defiant defendants must be given
sufficient discretion to meet the circumstances of each case. No
one formula for maintaining the appropriate courtroom atmosphere
will be best in all situations. We think there are at least three
constitutionally permissible ways for a trial judge to handle an
obstreperous
Page 397 U. S. 344
defendant like Allen: (1) bind and gag him, thereby keeping him
present; (2) cite him for contempt; (3) take him out of the
courtroom until he promises to conduct himself properly.
I
Trying a defendant for a crime while he sits bound and gagged
before the judge and jury would, to an extent, comply with that
part of the Sixth Amendment's purposes that accords the defendant
an opportunity to confront the witnesses at the trial. But even to
contemplate such a technique, much less see it, arouses a feeling
that no person should be tried while shackled and gagged except as
a last resort. Not only is it possible that the sight of shackles
and gags might have a significant effect on the jury's feelings
about the defendant, but the use of this technique is itself
something of an affront to the very dignity and decorum of judicial
proceedings that the judge is seeking to uphold. Moreover, one of
the defendant's primary advantages of being present at the trial,
his ability to communicate with his counsel, is greatly reduced
when the defendant is in a condition of total physical restraint.
It is in part because of these inherent disadvantages and
limitations in this method of dealing with disorderly defendants
that we decline to hold with the Court of Appeals that a defendant
cannot under any possible circumstances be deprived of his right to
be present at trial. However, in some situations which we need not
attempt to foresee, binding and gagging might possibly be the
fairest and most reasonable way to handle a defendant who acts as
Allen did here.
II
In a footnote, the Court of Appeals suggested the possible
availability of contempt of court as a remedy to make Allen behave
in his robbery trial, and it is true
Page 397 U. S. 345
that citing or threatening to cite a contumacious defendant for
criminal contempt might, in itself, be sufficient to make a
defendant stop interrupting a trial. If so, the problem would be
solved easily, and the defendant could remain in the courtroom. Of
course, if the defendant is determined to prevent
any
trial, then a court in attempting to try the defendant for
contempt, is still confronted with the identical dilemma that the
Illinois court faced in this case. And criminal contempt has
obvious limitations as a sanction when the defendant is charged
with a crime so serious that a very severe sentence such as death
or life imprisonment is likely to be imposed. In such a case, the
defendant might not be affected by a mere contempt sentence when he
ultimately faces a far more serious sanction. Nevertheless, the
contempt remedy should be borne in mind by a judge in the
circumstances of this case.
Another aspect of the contempt remedy is the judge's power, when
exercised consistently with state and federal law, to imprison an
unruly defendant such as Allen for civil contempt and discontinue
the trial until such time as the defendant promises to behave
himself. This procedure is consistent with the defendant's right to
be present at trial, and yet it avoids the serious shortcomings of
the use of shackles and gags. It must be recognized, however, that
a defendant might conceivably, as a matter of calculated strategy,
elect to spend a prolonged period in confinement for contempt in
the hope that adverse witnesses might be unavailable after a lapse
of time. A court must guard against allowing a defendant to profit
from his own wrong in this way.
III
The trial court in this case decided, under the circumstances,
to remove the defendant from the courtroom and to continue his
trial in his absence until and
Page 397 U. S. 346
unless he promised to conduct himself in a manner befitting an
American courtroom. As we said earlier, we find nothing
unconstitutional about this procedure. Allen's behavior was clearly
of such an extreme and aggravated nature as to justify either his
removal from the courtroom or his total physical restraint. Prior
to his removal, he was repeatedly warned by the trial judge that he
would be removed from the courtroom if he persisted in his unruly
conduct, and, as Judge Hastings observed in his dissenting opinion,
the record demonstrates that Allen would not have been at all
dissuaded by the trial judge's use of his criminal contempt powers.
Allen was constantly informed that he could return to the trial
when he would agree to conduct himself in an orderly manner. Under
these circumstances, we hold that Allen lost his right guaranteed
by the Sixth and Fourteenth Amendments to be present throughout his
trial.
IV
It is not pleasant to hold that the respondent Allen was
properly banished from the court for a part of his own trial. But
our courts, palladiums of liberty as they are, cannot be treated
disrespectfully with impunity. Nor can the accused be permitted by
his disruptive conduct indefinitely to avoid being tried on the
charges brought against him. It would degrade our country and our
judicial system to permit our courts to be bullied, insulted, and
humiliated, and their orderly progress thwarted and obstructed by
defendants brought before them charged with crimes. As guardians of
the public welfare, our state and federal judicial systems strive
to administer equal justice to the rich and the poor, the good and
the bad, the native and foreign born of every race, nationality,
and religion. Being manned by humans, the courts are not perfect,
and are bound to make some errors. But, if our courts are to remain
what
Page 397 U. S. 347
the Founders intended, the citadels of justice, their
proceedings cannot and must not be infected with the sort of
scurrilous, abusive language and conduct paraded before the
Illinois trial judge in this case. The record shows that the
Illinois judge at all times conducted himself with that dignity,
decorum, and patience that befit a judge. Even in holding that the
trial judge had erred, the Court of Appeals praised his
"commendable patience under severe provocation."
We do not hold that removing this defendant from his own trial
was the only way the Illinois judge could have constitutionally
solved the problem he had. We do hold, however, that there is
nothing whatever in this record to show that the judge did not act
completely within his discretion. Deplorable as it is to remove a
man from his own trial, even for a short time, we hold that the
judge did not commit legal error in doing what he did.
The judgment of the Court of Appeals is
Reversed.
[
Footnote 1]
In a footnote, the Court of Appeals also referred to the trial
judge's contempt power. This subject is discussed in Part II of
this opinion.
Infra at
397 U. S.
344-345.
[
Footnote 2]
Rule 43 of the Federal Rules of Criminal Procedure provides
that,
"[i]n prosecutions for offenses not punishable by death, the
defendant's voluntary absence after the trial has been commenced in
his presence shall not prevent continuing the trial to and
including the return of the verdict."
[
Footnote 3]
See Murray, The Power to Expel a Criminal Defendant
From His Own Trial: A Comparative View, 36 U.Colo.L.Rev. 171-175
(1964); Goldin, Presence of the Defendant at Rendition of the
Verdict in Felony Cases, 16 Col.L.Rev. 18-31 (1916).
MR. JUSTICE BRENNAN, concurring.
The safeguards that the Constitution accords to criminal
defendants presuppose that government has a sovereign prerogative
to put on trial those accused in good faith of violating valid
laws. Constitutional power to bring an accused to trial is
fundamental to a scheme of "ordered liberty" and prerequisite to
social justice and peace. History has known the breakdown of lawful
penal authority -- the feud, the vendetta, and the terror of
penalties meted out by mobs or roving bands of vigilantes. It has
known, too, the perversion of that authority. In some societies,
the penal arm of the state has reached individual men through
secret denunciation followed by summary punishment. In others, the
solemn power of condemnation has been confided to the caprice
Page 397 U. S. 348
of tyrants. Down the corridors of history have echoed the cries
of innocent men convicted by other irrational or arbitrary
procedures. These are some of the alternatives history offers to
the procedure adopted by our Constitution. The right of a defendant
to trial -- to trial by jury -- has long been cherished by our
people as a vital restraint on the penal authority of government.
And it has never been doubted that, under our constitutional
traditions, trial in accordance with the Constitution is the proper
mode by which government exercises that authority.
Lincoln said this Nation was "conceived in liberty and dedicated
to the proposition that all men are created equal." The Founders'
dream of a society where all men are free and equal has not been
easy to realize. The degree of liberty and equality that exists
today has been the product of unceasing struggle and sacrifice.
Much remains to be done -- so much that the very institutions of
our society have come under challenge. Hence, today, as in
Lincoln's time, a man may ask "whether [this] nation or any nation
so conceived and so dedicated can long endure." It cannot endure if
the Nation falls short on the guarantees of liberty, justice, and
equality embodied in our founding documents. But it also cannot
endure if we allow our precious heritage of ordered liberty to be
ripped apart amid the sound and fury of our time. It cannot endure
if, in individual cases, the claims of social peace and order, on
the one side, and of personal liberty, on the other, cannot be
mutually resolved in the forum designated by the Constitution. If
that resolution cannot be reached by judicial trial in a court of
law, it will be reached elsewhere and by other means, and there
will be grave danger that liberty, equality, and the order
essential to both will be lost.
The constitutional right of an accused to be present at his
trial must be considered in this context. Thus,
Page 397 U. S. 349
there can be no doubt whatever that the governmental prerogative
to proceed with a trial may not be defeated by conduct of the
accused that prevents the trial from going forward. Over a half
century ago, this Court, in
Diaz v. United States,
223 U. S. 442,
223 U. S.
457-458 (1912), approved what I believe is the governing
principle. We there quoted from
Falk v. United States, 15
App.D.C. 446 (1899), the case of an accused who appeared at his
trial but fled the jurisdiction before it was completed. The court
proceeded in his absence, and a verdict of guilty was returned. In
affirming the conviction over the accused's objection that he could
not be convicted in his absence, the Court of Appeals for the
District of Columbia said:
"It does not seem to us to be consonant with the dictates of
common sense that an accused person . . . should be at liberty,
whenever he pleased, . . . to break up a trial already commenced.
The practical result of such a proposition, if allowed to be law,
would be to prevent any trial whatever until the accused person
himself should be pleased to permit it. . . . This would be a
travesty of justice which could not be tolerated. . . . [W]e do not
think that any rule of law or constitutional principle leads us to
any conclusion that would be so disastrous as well to the
administration of justice as to the true interests of civil
liberty."
"
* * * *"
"The question is one of broad public policy, whether an accused
person, placed upon trial for crime and protected by all the
safeguards with which the humanity of our present criminal law
sedulously surrounds him, can with impunity defy the processes of
that law, paralyze the proceedings of courts and juries and turn
them into a solemn farce, and ultimately compel society, for its
own
Page 397 U. S. 350
safety, to restrict the operation of the principle of personal
liberty. Neither in criminal nor in civil cases will the law allow
a person to take advantage of his own wrong."
To allow the disruptive activities of a defendant like
respondent to prevent his trial is to allow him to profit from his
own wrong. The Constitution would protect none of us if it
prevented the courts from acting to preserve the very processes
that the Constitution itself prescribes.
Of course, no action against an unruly defendant is permissible
except after he has been fully and fairly informed that his conduct
is wrong and intolerable, and warned of the possible consequences
of continued misbehavior. The record makes clear that respondent
was so informed and warned in this case. Thus, there can be no
doubt that respondent, by persisting in his reprehensible conduct,
surrendered his right to be present at the trial.
As the Court points out, several remedies are available to the
judge faced with a defendant bent on disrupting his trial. He can
have him bound, shackled, and gagged; he can hold him in civil or
criminal contempt; he can exclude him from the trial and carry on
in his absence. No doubt other methods can be devised I join the
Court's opinion, and agree that the Constitution does not require
or prohibit the adoption of any of these courses. The
constitutional right to be present can be surrendered if it is
abused for the purpose of frustrating the trial. Due process does
not require the presence of the defendant if his presence means
that there will be no orderly process at all. However, I also agree
with the Court that these three methods are not equally acceptable.
In particular, shackling and gagging a defendant is surely the
least acceptable of them. It offends not only judicial dignity and
decorum, but also that
Page 397 U. S. 351
respect for the individual which is the lifeblood of the
law.
I would add only that, when a defendant is excluded from his
trial, the court should make reasonable efforts to enable him to
communicate with his attorney, and, if possible, to keep apprised
of the progress of his trial. Once the court has removed the
contumacious defendant, it is not weakness to mitigate the
disadvantages of his expulsion as far as technologically possible
in the circumstances.
MR. JUSTICE DOUGLAS.
I agree with the Court that a criminal trial, in the
constitutional sense, cannot take place where the courtroom is a
bedlam and either the accused or the judge is hurling epithets at
the other. A courtroom is a hallowed place where trials must
proceed with dignity, and not become occasions for entertainment by
the participants, by extraneous persons, by modern mass media, or
otherwise.
My difficulty is not with the basic hypothesis of this decision,
but with the use of this case to establish the appropriate
guidelines for judicial control.
This is a stale case, the trial having taken place nearly 13
years ago. That lapse of time is not necessarily a barrier to a
challenge of the constitutionality of a criminal conviction. But,
in this case, it should be.
There is more than an intimation in the present record that the
defendant was a mental case. The passage of time since 1957, the
date of the trial, makes it, however, impossible to determine what
the mental condition of the defendant was at that time. The fact
that a defendant has been found to understand "the nature and
object of the proceedings against him," and thus competent to stand
trial, [
Footnote 2/1] does not
answer the difficult questions as to what a trial judge should do
with an
Page 397 U. S. 352
otherwise mentally ill defendant who creates a courtroom
disturbance. What a judge should do with a defendant whose
courtroom antics may not be volitional is a perplexing problem
which we should not reach except on a clear record. This defendant
had no lawyer, and refused one, though the trial judge properly
insisted that a member of the bar be present to represent him. He
tried to be his own lawyer, and what transpired was pathetic, as
well as disgusting and disgraceful.
We should not reach the merits, but should reverse the case for
staleness of the record and affirm the denial of relief by the
District Court. After all, behind the issuance of a writ of habeas
corpus is the exercise of an informed discretion. The question --
how to proceed in a criminal case against a defendant who is a
mental case -- should be resolved only on a full and adequate
record.
Our real problems of this type lie not with this case, but with
other kinds of trials.
First are the political trials.
They frequently recur in our history, [
Footnote 2/2] and, insofar
Page 397 U. S. 353
as they take place in federal courts, we have broad supervisory
powers over them. That is one setting where the question arises
whether the accused has rights of confrontation that the law
invades at its peril.
In Anglo-American law, great injustices have at times been done
to unpopular minorities by judges, as well as by prosecutors. I
refer to London in 1670, when William Penn, the gentle Quaker, was
tried for causing a riot when all that he did was to preach a
sermon on Grace Church Street, his church having been closed under
the Conventicle Act:
"
Penn. I affirm I have broken no law, nor am I Guilty
of the indictment that is laid to my charge, and to the end the
bench, the jury, and myself, with these that hear us, may have a
more direct understanding of this procedure, I desire you would let
me know by what law it is you prosecute me, and upon what law you
ground my indictment."
"
Rec. Upon the common law."
"
Penn. Where is that common law?"
"
Rec. You must not think that I am able to run up so
many years, and over so many adjudged cases, which we call common
law, to answer your curiosity."
"
Penn. This answer I am sure is very short of my
question, for if it be common, it should not be so hard to
produce."
"
Rec. Sir, will you plead to your indictment?"
"
Penn. Shall I plead to an Indictment that hath no
foundation in law? If it contain that law you say I have broken,
why should you decline to produce that law, since it will be
impossible for the jury to determine, or agree to bring in their
verdict, who have not the law produced by which they should measure
the truth of this indictment, and the guilt, or contrary of my
fact? "
Page 397 U. S. 354
"
Rec. You are a saucy fellow; speak to the
Indictment."
"
Penn. I say, it is my place to speak to matter of law;
I am arraigned a prisoner; my liberty, which is next to life
itself, is now concerned: you are many mouths and ears against me,
and if I must not be allowed to make the best of my case, it is
hard, I say again, unless you shew me, and the people, the law you
ground your indictment upon, I shall take it for granted your
proceedings are merely arbitrary."
"
Rec. The question is whether you are Guilty of this
Indictment?"
"
Penn. The question is not whether I am Guilty of this
Indictment, but whether this Indictment be legal. It is too general
and imperfect an answer, to say it is the common law unless we knew
both where and what it is. For where there is no law, there is no
transgression, and that law which is not in being is so far from
being common that it is no law at all."
"
Rec. You are an impertinent fellow, will you teach the
court what law is? It is 'Lex non scripta,' that which many have
studied 30 or 40 years to know, and would you have me to tell you
in a moment?"
"
Penn. Certainly, if the common law be so hard to be
understood, it is far from being very common; but if the lord Coke
in his Institutes be of any consideration, he tells us, That Common
Law is common right, and that Common Right is the Great
Charter-Privileges"
"
Rec. Sir, you are a troublesome fellow, and it is not
for the honour of the court to suffer you to go on. "
Page 397 U. S. 355
"
Penn. I have asked but one question, and you have not
answered me; though the rights and privileges of every Englishman
be concerned in it."
"
Rec. If I should suffer you to ask questions till
tomorrow morning, you would be never the wiser."
"
Penn. That is according as the answers are."
"
Rec. Sir, we must not stand to hear you talk all
night."
"
Penn. I design no affront to the court, but to be
heard in my just plea: and I must plainly tell you that, if you
will deny me Oyer of that law, which you suggest I have broken, you
do at once deny me an acknowledged right, and evidence to the whole
world your resolution to sacrifice the privileges of Englishmen to
your sinister and arbitrary designs."
"
Rec. Take him away. My lord, if you take not some
course with this pestilent fellow to stop his mouth, we shall not
be able to do anything tonight."
"
Mayor. Take him away, take him away, turn him into the
bale-dock. [
Footnote 2/3]"
The Trial of William Penn, 3 How.St.Tr. 951, 958-959.
The panel of judges who tried William Penn were sincere,
law-and-order men of their day. Though Penn was acquitted by the
jury, he was jailed by the court for his contemptuous conduct.
Would we tolerate removal of a defendant from the courtroom during
a trial because he was insisting on his constitutional rights,
albeit vociferously, no matter how obnoxious his philosophy might
have been to the bench that tried him? Would we uphold contempt in
that situation?
Page 397 U. S. 356
Problems of political indictments and of political judges raise
profound questions going to the heart of the social compact. For
that compact is two-sided: majorities undertake to press their
grievances within limits of the Constitution and in accord with its
procedures; minorities agree to abide by constitutional procedures
in resisting those claims.
Does the answer to that problem involve defining the procedure
for conducting political trials or does it involve the designing of
constitutional methods for putting an end to them? This record is
singularly inadequate to answer those questions. It will be time
enough to resolve those weighty problems when a political trial
reaches this Court for review.
Second are trials used by minorities to destroy the
existing constitutional system and bring on repressive measures.
Radicals on the left historically have used those tactics to incite
the extreme right with the calculated design of fostering a regime
of repression from which the radicals on the left hope to emerge as
the ultimate victor. [
Footnote 2/4]
The left in that role is the provocateur. The Constitution was not
designed as an instrument for that form of rough-and-tumble
contest. The social compact has room for tolerance, patience, and
restraint, but not for sabotage and violence. Trials involving that
spectacle strike at the very heart of constitutional
government.
I would not try to provide in this case the guidelines for those
two strikingly different types of cases. The case presented here is
the classical criminal case, without any political or subversive
overtones. It involves a defendant who was a sick person and who
may or may
Page 397 U. S. 357
not have been insane in the classical sense, [
Footnote 2/5] but who apparently had a diseased
mind. And, as I have said, the record is so stale that it is now
much too late to find out what the true facts really were.
[
Footnote 2/1]
See 397
U.S. 337fn2/5|>n. 5,
infra.
[
Footnote 2/2]
From
Spies v. People, 122 Ill. 1, 12 N.E. 865,
involving the Haymarket riot;
In re Debs, 158 U.
S. 564, involving the Pullman strike;
Mooney v.
Holohan, 294 U. S. 103,
involving the copper strikes of 1917;
Commonwealth v.
Sacco, 255 Mass. 369, 151 N.E. 839, 259 Mass. 128, 156 N.E.
57, 261 Mass. 12, 158 N.E. 167, involving the Red scare of the
20's; to
Dennis v. United States, 341 U.
S. 494, involving an agreement to teach Marxism.
As to the Haymarket riot resulting in the
Spies case,
see 2 J. Commons and Associates, History of Labour in the
United States 386
et seq. (1918); W. Swindler, Court and
Constitution in the Twentieth Century, cc. 3 and 4 (1969).
As to the Pullman strike and the
Debs case,
see L. Pfeffer, This Honorable Court 215-216 (1965); A.
Lindsey, The Pullman Strike, cc. XII and XIII (1942); Commons,
supra, at 502-508.
As to the
Mooney case,
see the January 18,
1922, issue of The New Republic; R. Frost, The Mooney Case
(1968).
As to the
Sacco-Vanzetti case,
see Fraenkel,
The Sacco-Vanzetti Case; F. Frankfurter, The Case of Sacco and
Vanzetti (1927).
As to the repression of teaching involved in the
Dennis
case,
see O. Kirchheimer, Political Justice 132-158
(1961).
[
Footnote 2/3]
At Old Bailey, where the William Penn trial was held, the
baledock (or baildock) was
"a small room taken from one of the corners of the court, and
left open at the top, in which, during the trials, are put some of
the malefactors."
Oxford Eng. Dict.
[
Footnote 2/4]
As respects the strategy of German Communists
vis-a-vis
the Nazis in the 1930's,
see K. Heiden, Der Fuehrer 461,
462, 525, 551-552 (1944).
[
Footnote 2/5]
In a 1956 pretrial sanity hearing, Allen was found to be
incompetent to stand trial. Approximately a year later, however, on
October 19, 1957, in a second competency hearing, he was declared
sane and competent to stand trial.
Allen's sister and brother testified in Allen's behalf at the
trial. They recited instances of Allen's unusual past behavior and
stated that he was confined to a mental institution in 1953,
although no reason for this latter confinement was given. A doctor
called by the prosecution testified that he had examined Allen
shortly after the commission of the crime, which took place on
August 12, 1956, and on other subsequent occasions, and that, in
his opinion, Allen was sane at the time of each examination. This
evidence was admitted on the question of Allen's sanity at the time
of the offense. The jury found him sane at that time, and the
Illinois Supreme Court affirmed that finding.
See People v.
Allen, 37 Ill. 2d
167,
226 N.E.2d
1.
At the time of Allen's trial in 1957, the tests in Illinois for
the defendant's sanity at the time of the criminal act were the
M'Naghten Rule, supplemented by the so-called "irresistible impulse
test."
People v. Carpenter, 11 Ill. 2d
60,
142 N.E.2d
11. The tests for determining a defendant's sanity at the time
of trial were that
"[h]e should be capable of understanding the nature and object
of the proceedings against him, his own condition in reference to
such proceedings, and have sufficient mind to conduct his defense
in a rational and reasonable manner,"
and, further, that "he should be capable of cooperating with his
counsel to the end that any available defenses may be interposed."
People v. Burson, 11 Ill. 2d
360, 369,
143 N.E.2d
239, 244-245.