Bloom v. Illinois

PETITIONER:Bloom
RESPONDENT:Illinois
LOCATION:WAFB TV

DOCKET NO.: 52
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 391 US 194 (1968)
ARGUED: Jan 16, 1968 / Jan 17, 1968
DECIDED: May 20, 1968

Facts of the case

Question

  • Oral Argument – January 17, 1968
  • Audio Transcription for Oral Argument – January 17, 1968 in Bloom v. Illinois

    Audio Transcription for Oral Argument – January 16, 1968 in Bloom v. Illinois

    Earl Warren:

    Number 52, S.Edward Bloom versus Illinois.

    Mr. Eben.

    Anthony Bradley Eben:

    Thank you Your Honor.

    Mr. Chief Justice, associate justices, may it please the court.

    Each time that I have the pleasure of appearing before this Court, I have taken the liberty at the outset of calling the attention of the Court to the fact that I am somewhat hard of hearing.

    And each time in the past when I have done that Mr. Justice Frankfurter invariably would ask me whether or not I made that statement in order to avoid having the Court ask me any questions and each time, I always replied to Mr. Justice Frankfurter that I’m welcome to questions and that I only make the statement to the end that the Court will bear with me a little if I do not seem to — at first, to hear what you have to say to me.

    This case Your Honors again, brings to this Court the troublesome question and I say troublesome because it has bothered the Court in the past on three separate occasions.

    The question deals with the right to a trial by jury in a criminal contempt case.

    As the Court will recall, this matter has come before Your Honors in the past as recently as in Cheff v. Schnackenberg, and prior to that in the Barnett case and prior to that in the Green case.

    In every instance, the Court has split one way or another and have stated their diverge views with great strength.

    The matter actually comes here now upon the grant of a writ of certiorari to the Supreme Court of the State of Illinois to review a judgment by that court which affirmed a judgment added in the probate court of Cook County against the petitioner who was charged with criminal contempt of that court.

    Now the conduct upon which the petitioner was brought to trial in that court related to his alleged filing in the Court of a spurious will, a will alleged in the pleadings to have been prepared by the petitioner subsequent to the death of the decedent.

    The petitioner is a member of the Bar of the State of Illinois actually.

    In the pleading, it is said that he prepared this in his office with the aid of his stenographer that thereafter he procured witnesses who signed it after the death of the decedent that he then filed the will with the clerk, with probate court and that he then presented it for admission.

    When the case came on for trial, we asked for a jury.

    Our request for a jury was timely at the Illinois law.

    The trial judge saw fit to deny that request and the trial was then entered upon and consumed approximately 10 days.

    At the conclusion of the trial, the petitioner was found guilty of all of those matters which I have already described to the Court.

    And the order recited that he was in delegation of the dignity of the Court and of the orderly processes of the Court.

    Also during the trial, a fact issue was raised as to the guilt or innocence of petitioner.

    That fact issue was raised by the testimony of a psychiatrist who testified that a part of his examination of petitioner and upon a hypothetical question that the petitioner could not possibly have possessed the benevolent intent which is necessary at the State of Illinois to support a charge of criminal contempt.

    The portion of this case which makes it somewhat different than the cases which have come to the Court’s attention in the past lies in the fact here that the conduct complaint of as pleaded in the petition constitutes a felony under the criminal code of the State of Illinois of 1961.

    It constitutes a felony under the provisions of Section 17-3 of that code which to deals with forgery and makes it a felony punishable by a sentence of one to 14 years for one who utters knowingly a forged document.

    Earl Warren:

    What was the punishment here?

    Anthony Bradley Eben:

    I’m sorry, what?

    Earl Warren:

    What was the punishment here?

    Anthony Bradley Eben:

    The petitioner was sentenced to two years in the common jail of Cook County and is presently at large on bail pending his appeal to the Illinois Supreme Court and then the grant of certiorari here.

    Now, the case also presents two other constitutional questions which I hope to come to later because I would like to have the main impact of my argument centered on the question of the right to trial by jury in this type of case.

    But at passing, so that it will come as no surprise to the Court, we also alleged that the trial judge had a secret report furnished him by an amicus curiae who was appointed by him and that this report was only made limitedly available to us at the trial and not at its entirety.

    And the third constitutional point deals with the question of a comment by the prosecutor at the conclusion of the summary that the petitioner in that case have failed to take the stand.

    Anthony Bradley Eben:

    I do not wish to take up the time of this Court needlessly to explain to the Court that which I know it already knows.

    I am sure that this Court is much more familiar with the dissent of Mr. Justice Black.

    In fact, the number of dissent of Mr. Justice Black in this field and his presentation of all of the reasons why upon a consideration of ancient law, Magna Carta, the statutes prevailing in the 13 colonies.

    A review of ancient common law English decisions and so on.

    Why he stands for the proposition that there is just no reason in logic why a criminal contempt of any sort should be treated any differently than a crime or a criminal prosecution and therefore subject to Article III, Section 2 of the constitution as well as the Sixth Amendment of the constitution.

    Elegant treatment has been given to the same subject by Mr. Justice Goldberg in his dissent in the Barnett case and Mr. Justice Douglas from time to time has made references in dissents to this.

    On the other hand as the Court knows Mr. Justice Harlan has consistently taken a position in opposition to the theory which we now propose.

    But I thought that the basis for Mr. Justice Harlan’s opinions in the past is somewhat — maybe distinguished here since in Green and in Barnett the two cases prior to Cheff, there was never any question of the conduct complained off in those cases constituting a felony as this particular conduct does here.

    As of felony of course, the petitioner might well have been indicted by a grand jury on which event at the Illinois law and under the Illinois constitution, it would have been entitled to a trial by jury.

    Earl Warren:

    Well, wasn’t there a statute in Green?

    And I thought there was a statute in Green and it was one year penalty but the Court gave him five years for contempt, am I wrong in that?

    Anthony Bradley Eben:

    In Green as I recall the facts Your Honor, the — there had been jumping of bail and you’re quite right.

    Earl Warren:

    (Voice Overlap)

    Anthony Bradley Eben:

    And there was a one year penalty in connection with that.

    Earl Warren:

    Yes.

    Anthony Bradley Eben:

    But that of course was not a felony.

    That would be at least a misdemeanor if the penalty is only one year.

    Earl Warren:

    That was the subject of the contempt also that he had jumped his bail and did not report it.

    Anthony Bradley Eben:

    Yes, he jumped there then they were brought back and then —

    Earl Warren:

    Yes.

    Anthony Bradley Eben:

    — given him five years on the contempt charge.

    Earl Warren:

    Yes.

    Anthony Bradley Eben:

    That’s quite correct.

    Now it seems to me that.

    I may be wrong if my recollection of it is —

    Anthony Bradley Eben:

    I’m sorry Mr. Justice Harlan.

    I say, “I may be wrong but my recollection of it is that there was a bit of jump of the statute in Green but the sentence provided for was wrong with its intentions.

    I may be wrong about —

    Anthony Bradley Eben:

    Yes, that’s what I understood the Chief Justice to say.

    Yes.

    Anthony Bradley Eben:

    And I concede that there was such a statute.

    I thought it was a five-year sentence.

    Anthony Bradley Eben:

    In Cheff, which was the last time these troubles and problem came here, six of the justices seemed for one reason or another to be on the side which I now proposed.

    Mr. Justice Black and Mr. Justice Douglas quite consistently adhered to their prior dissents.

    Four other justices, however, consisting of the Chief Justice I believe, Mr. Justice Brennan and Mr. Justice Fortas as I recall took the position that where or rather they equate and I should say, a criminal contempt to a petty crime and then taking the petty crime which is defined under the appropriate United States statute, I believe it’s 18 U.S.C 1.

    I found there that the maximum penalty to constitute a petty crime was six months and concluding that upon the equation which I just mentioned that therefore it is constitutionally possible to impose a sentence in a case where a disobedience of the Court order was involved which did not exceed six months.

    But nevertheless, a caveat was published to the lower courts which in the language of this Court seem to indicate that lower courts could not sentence to more than six months in a criminal contempt case.

    And if they intended to sentence for a longer period of time then a jury trial was required.

    My distinguished adversaries from the State of Illinois take the position that this is not a constitutional finding by this Court and was merely an exercise of the supervisory powers of the Court.

    I of course contend the opposite and I say that it would have been impossible for this Court no matter what it called it to have decided the question presented in Cheff without as a matter of logic deciding when the issue of this caveat that any punishment more than six months was unconstitutional under the Sixth Amendment and Article III.

    We have briefed this fully as has the state.

    Now then, it seems also to me as a matter of reasoning that there is just no reason whatsoever why a criminal contempt should ever be considered in any manner different from the ordinary crime or criminal prosecution.

    For instance, in the past, this Court as well as the Supreme Court of the State of Illinois had held that a — an alleged contemnor is entitled to any number of rights all of which are granted to him only in the event of the commission of a crime.

    For instance, under decisions here and under decisions of the State of Illinois an alleged contemnor is entitled to the presumption of innocence.

    He is entitled to the application of the rule that he must be proved guilty beyond all reasonable doubt, self incrimination is not permitted.

    He has a right to counsel, he has an opportunity to prepare for trial, he must be given notices of the charges against him, he has a right to an impartial arbiter of the facts, he has the benefit of statutes of limitations covering crimes and finally under these decisions, he has the right to petition for pardon.

    It seems to me that there is just no logic to support the theory that a criminal prosecution at any way differs from a crime and more importantly because I do not wish to overstate my own case, more importantly where the conduct charge actually does as it is here does constitute a crime.

    Now, there is another reason which seems to me logically to support our position and that is by an analysis which I will make very briefly of why a court has a contempt power at all.

    And there are decisions after decisions saying that courts have this power in order to protect themselves.

    That is to protect themselves from insult and contumacy committed in their presence or to enforce their judgments and so on.

    But at the same time, the decisions of this Court and particularly the early decisions that indicate that the power of contempt as they said should be the least power adequate to the end proposed.

    I believe that was in a very early decision of this Court to this case, the Bessette case.

    And so, I point out to the Court that the power — the contempt power should be used sparingly and in my humble opinion only where it is necessary and under the fact situation as it is in the case at bar, the exercise of the contempt power is not necessary at all.

    That is by a court.

    Since the Court is given adequate protection by the state’s attorney of Cook County in this particular instance who may proceed upon the criminal conduct and bring the man to trial which as I have said before would entitle him to a jury.

    Byron R. White:

    Mr. Eben, what would you say about the —

    Anthony Bradley Eben:

    Sorry.

    Byron R. White:

    What would you say about the case where the conduct is constituting the contempt as criminal under state law or even a felony but the state statute — the state has a statute limiting the penalty in contempt to say 10 days in jail and $100.00 fine.

    Anthony Bradley Eben:

    That would be — that raises the question Mr. Justice White of the — where the penalty is a trivial one.

    Byron R. White:

    And that’s — and that is the limit of the judge’s power in contempt?

    Anthony Bradley Eben:

    Well, they could still proceed — if this is what you’re asking me.

    They could still proceed by a way of criminal indictment.

    Byron R. White:

    Yes, but you — yes.

    Anthony Bradley Eben:

    Since there are no double jeopardy protections on this as you know it.

    Byron R. White:

    Yes.

    Anthony Bradley Eben:

    Oh, which is one of the dangers by the way —

    Byron R. White:

    But you would still require a jury trial in the contempt action even though the penalty was a minor one?

    Anthony Bradley Eben:

    Yes sir.

    I believe that’s what —

    Byron R. White:

    Why?

    Anthony Bradley Eben:

    Well, because I believe along with Mr. Justice Black and Mr. Justice Douglas that unless the legislature at some point makes the difference between — the state’s difference between what is petty and what is not petty that all criminal contempt must be considered the same.

    We do have that federally though we do not have it in the State of Illinois.

    I must point out that in the State of Illinois there is no definition of what constitutes a petty crime.

    Under the criminal code there, the petty — crimes are — consists of misdemeanors and felonies and that is all which is why I would ask in this case, should the Court see fit to go along with our brief that the case be remanded for a new trial rather than for the imposition of any six months sentence as was done in Cheff.

    Foreclosed, you know I see the hour is getting close.

    I do want to call the Court’s attention to the secret report which had been made by the amicus curiae to the judge.

    We believe that under the decisions of this Court particularly In re Murchison which dealt with the one man grand jury in Michigan and In re Oliver also dealing with the same situation that it a — is just constitutionally wrong for a judge at any time to have access to reports whether from his own agent as in this case in amicus curiae or anyone else in his possession prior to the trial and we believe that this is what the record establishes here.

    I’d like with the permission of the Court to stop at this point.

    I would like to reserve a few moments tomorrow for my rebuttal.

    Thank you Your Honor.

    Earl Warren:

    Go right ahead.

    Anthony Bradley Eben:

    As I have asked to save a few minutes for my rebuttal.

    Earl Warren:

    Oh, I’m really sorry.

    Well, then we wont — we’ll recess now.

    Anthony Bradley Eben:

    Thanks.

    Thank you Your Honor.