Harris v. United States – Oral Argument – October 12, 1965

Media for Harris v. United States

Audio Transcription for Oral Argument – October 11, 1965 in Harris v. United States

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Earl Warren:

Harris, Petitioner, versus United States.

Mr. Goldfarb, you may, continue your argument.

Ronald L. Goldfarb:

Thank you, Mr. Chief Justice, may it please the Court.

As we adjourned yesterday, I had concluded my discussion of Rule 42 and had begun to discuss the issue of the right to trial by jury for criminal contempts with severe sentences.

Picking up at that point again this morning, I could do no better than to begin by referring to the particular provisions of the constitution which apply to this argument.

Article 3 Section 2 states that the trial of all crimes, except in the case of impeachment, shall be by jury.

The Sixth Amendment guarantees a public and speedy trial by an impartial jury in all criminal prosecutions.

This Court, throughout history, has treated contempt in various ways at different times but, consistently, it has treated contempt as a crime.

In the Gompers case, which I mentioned yesterday, it considered criminal contempt a crime for the purposes of invocation of the statute of limitations for crimes.

In ex parte Grossman, this Court considered criminal contempt to crime for the purposes of the use of the pardon power of the President.

In the Creekmore case, Creekmore against the United States, this Court considered criminal contempt a crime, insofar as classifying the contemnor as a convict.

In the New Orleans Steam Shift case, criminal contempt was called by this Court a criminal offense.

In the Gompers case, this Court held that the right to counsel and compulsory process applied to criminal contempt.

Indeed, the statutes hold that, if contempt may be inherently another crime as well such as perjury or obstruction of justice, there again, the right to trial by jury applies.

But this Court has hesitated to take the one final step and say that contempt is indeed a crime as envisioned by Article 3 and by the Sixth Amendment, and therefore, it warrants trial by jury in all cases.

This issue was dealt within the Gompers case, 233 United States, by Mr. Justice Holmes.

And in dealing with this case which is very ap — could be the very appellee applied to the instant case, Mr. Justice Holmes with his very special ability to succinctly and brilliantly see through a complicated matter and describe it as clearly as anyone, said the following, and I might add, that this case also involved the Sixth Amendment in having to do with the right to the application of the statute of limitations for crimes in general to criminal contempts and the contempt in this case also involves disobedience of a court’s order.

Mr. Justice Holmes said, “These contempts are infractions of the law, visited with punishment as such.

If such acts are not criminal, we are in error as to the most fundamental character of crimes as that word has been understood in English speech.

So truly are they crimes, that it seems to be proved that in the early law, they were punished only by the usual criminal procedures.”

And yet, this Court and other lower federal courts have persisted in categorizing for the purposes of trial by jury, criminal contempts as sui generis.

In other words, we take a man and say that he is a convict, that he has committed a criminal offense, that the criminal statute of limitations applies, that he’s going to jail, that he loses all his civil rights and when we locked him up, he says, “what have I done?”

We say “you haven’t committed a crime.

You’ve committed a sui generis.”

I suggest that arose by any other name, if we look at we’re doing in contempt cases, in an existential way, we’re saying to a man, “You’ve done something wrong.

Society will not put up with it.

We’re going to punish you for it.

We’re going to put the machinery of our government into play.

We’re going to take you out of society.

We’re going to deprive you of your rights.

Ronald L. Goldfarb:

We’re going to call you a convict and put you in prison”, and we still say to the man, “No, you haven’t committed a crime.

You committed only a sui generis.”

In defense of this position, the government states in its brief that the right to trial — to no trial by jury or the fact that there is no right to trial by jury is a long and historical one.

Well, that isn’t really a complete statement.

The trend, both in the United States Congress and the United States Courts, has consistently been, and in recent days has become — this has become more so, away from the denial of the right to trial by jury.

We start — we may start with the first federal legislation on the subject which is the Judiciary Act of 1789.

It’s been conceded by most commentators that the contempt power that was granted by that statute was a contempt power which existed in common law.

It is unknown and people have speculated what exactly that power was, what the outer reaches were.

I suggest, and I read a lot of contempt cases and I read the history of this, that there is no absolute clear answer to this question.

I think that the government grasps its straws when it suggest in its brief that Thomas Jefferson had, at the time the Constitution was being written, a 15-volume track in his library in Monticello.

And, in that — in one volume of that 15-volume track, on one page is the statement that contempts are treated summarily.

Now, if my history is correct, I believe, Thomas Jefferson when the Bill of Rights was being written was in France.

But, the Government will imply that one page in that 15-volume track to all the constitutional framers.

I suggest that this game can be played on both sides.

There was a 1958 Michigan law review article which discussed this subject and pointed out that one of the prime law dictionaries used at the time of the Constitution’s framing was Jacob’s Law Dictionary.

And, Jacob’s Law Dictionary had said summary contempts violated the Magna Carta’s right to trial by jury.

The article also pointed out that one of the books that we — were used by the framers often was Gilbert’s History and Practice of Common Pleas, which said the same thing.

But I can’t urge to this Court that because one or two books said yes and one or two books said no, that this was what the people had in their minds at the time they wrote the Constitution.

Moreover, I would suggest that nobody can.

Moreover, I don’t think it’s that important because we shouldn’t necessarily be bound by what was thought proper a 150 years ago.

Then Mr. Justice Frankfurter has said in one of his articles on this subject and having to do with petty offenses and the right to trial by jury in the Harvard Law Review, “At least let us not import into the Constitution of the United States discredited practices of Stuart England.”

What is the modern —

Earl Warren:

What is that last?

I didn’t quite — I didn’t quite get that.

Ronald L. Goldfarb:

He said, “At least let us not import into the Constitution of the United States, the discredited practices of Stuart England.”

He was talking about the summary trial for contempt.

I would suggest to the Court that in considering this issue again, that they look at the modern treatment of the problem by the United States Congress.

In 1914, in — the Clayton Act was passed and it guaranteed a right to trial by jury for contempts arising under it.

And in every piece of legislation from the United State Congress from 1914 until last year’s — 1964 Civil Rights Act, Congress has done the same in stronger terms.

In 1932, the Norris-LaGuardia Act was passed and it guaranteed the right to trial by jury.

Ronald L. Goldfarb:

When Rule 42 was promulgated, it too preserved the right to trial by jury.

The 1957 Civil Rights Act, when it was passed, it included a right to trial by jury which this Court’s dictum in the Barnett case might well have followed because there, the right to trial by jury is only guaranteed where the sentence is over 45 days or $300.

In the Landrum-Griffin Act of 1959, which setup a certain kind of contempt, it was provided that trials by jury would be provided for those criminal contempts.

Right up until last year, 1964 Civil Rights Act, when this was debated for quite a long time on the floor of Congress and it was decided to go beyond what this Court had ruled just before that debate began as to the right to trial by jury, they guarantee the right to trial by jury for all criminal contempts arising under that Act.

Indeed, they came close to passing a law that would’ve made it for all crimes.

Congress also, it’s interesting, passed the statute in 1857 changing its summary power to one which is now preceded with by indictment, trial by jury, and the arguments that were made then and that are made now, and which I suggest are boggy arguments that it would collapse if the legislative process couldn’t go on, have failed.

I think everyone agrees that we now have one of the most dexterous and busy and effective Congresses and that the legislative process have been able to go on.

Potter Stewart:

Did Congress retain alternatively the power to try contempts, if so?

Ronald L. Goldfarb:

The Congress, since 1857 — well, in the Act, Mr. Justice Stewart, they did not deal with this.

However, it is conceded that they still do have the power, and my study of the —

Potter Stewart:

And have you —

Ronald L. Goldfarb:

— Congressional contempt power is that they’ve used it once.

I would suggest too, that the courts —

Potter Stewart:

Of course, this argument — there is no point in entering a debate, but I’m sure you’re aware that the arguments you’re making cuts the other way as well.

If Congress had to do this, it meant that only an Act of Congress could change the rule.

Ronald L. Goldfarb:

Well, at least — I think, with respect to Congress’ supervision of its own administrative powers, that would be so.

But I think the Court is better equipped to deal with what the nature of the judicial power is — than perhaps any other body.

Potter Stewart:

But also, Congress had to — had expressly and specifically explicitly provide that certain offenses — certain contempts should be triable by a jury.

The implication — I suppose the natural implication is that, in the absence of such an explicit provision, they will not be triable by a jury.

Ronald L. Goldfarb:

This is a game that I can’t —

Potter Stewart:

Let’s say this is a game —

Ronald L. Goldfarb:

— I can’t answer.

Potter Stewart:

— that should be played.

Ronald L. Goldfarb:

I could only say that every time that Congress has dealt with the problem in modern times and every time they have created a new contempt, they have specifically guaranteed the right to trial by jury.

In this regard, I think they — Congress and this Court is paralleling an interest in avoiding the unusual practices of summary contempt treatment.

This Court — the Supreme Court said in Anderson v. Dunn, all the way back 1821, that the least possible power adequate to the end proposed should be the spirit with which summary contempt power is exercised because as another Court said, it is nearest akin to despotic power of any power existing under our form of government.

Potter Stewart:

Mr. Goldfarb, I want to be sure I understand your argument.

Do you — is it an all out argument?

Do you concede that there might be cases either involving minor contempts or cases even if the contempt were major but in which the punishment were — would be restricted to some very light punishment that the jury trial would not be required?

Ronald L. Goldfarb:

Mr. Justice Stewart, my argument is in the alternative.

Ronald L. Goldfarb:

My prime argument is that all criminal contempts now, today are, in fact, treated as crimes.

The sentences reflect this.

As such, they warrant the protections of the Constitution.

And, —

Potter Stewart:

Well —

Ronald L. Goldfarb:

— rather than going into all of the philosophical analysis and reasons why I would stand on the dissent, Mr. Justice Black in the Green case, which more eloquently than I could ever sum it up, stated the reasons why they should apply across the board.

But I do suggest to the Court that if the Court does not feel or if the majority of the Court does not feel that it could go this far, and I suggest that this is quite a different Court from the Green case, and that we have a new experience since the Green case, that the rules suggested in the Barnett case is a very wise one.

I think it’s a wise one for this reason.

Aside from the constitutional issue, what are the basic strong feelings that have been expressed on both sides of the issue of whether or not there should be right to trial by jury?

Those who feel that there should never be a right to trial by jury most ordinarily say that courts must have some power to deal summarily with certain kinds of obstructive and demoralizing things that go on in its presence.

Now, without this power, the judicial process would be denigrated if courts couldn’t function and it would be time consuming and wasteful.

On the other side of the argument, those who argue for the right to trial by jury feel — and they’ve been borne out by experience since the Green case that this is an abusable kind of power.

The Government argues that we need a summary power because of civil rights cases in the south.

Well, the same summary power is used against the Negroes in the south by the state court judges.

If this — to get back to the point, the argument against the right — for the right to trial by jury is that courts shouldn’t be able to avoid the constitutional protections if they are going to, in fact, treat a man as a criminal and put him in jail for long periods of time.

The sentences have gone as high as four years in recent times without a trial by jury and sometimes without even a hearing.

The beauty, it seems to me, of the footnote in the Barnett case is that it balances.

It preserves, on the one hand, some right of the courts to deal summarily in those extreme cases and yet, on the other hand, it guards against the kind of thing that Mr. Justice Clark mentioned in the Barnett case, that Mr. Justice Black has consistently mentioned, that Mr. Chief Justice Warren mentioned in the Brown case, that has concerned everyone who has considered the contempt power and that is, that the sentences are just getting abusive, the courts can’t keep reviewing it.

So, I’m arguing —

Potter Stewart:

Alternatively —

Ronald L. Goldfarb:

To get back — I’m arguing alternatively.

Potter Stewart:

Alternatively, but I — one of your alternatives is across the board, jury trial in all contempts, but now your other alternative.

You differentiate then between the seriousness of the contempt or between the power of the Court to impose sentences with or without a jury trial, that is maybe up to 30 days without one or finally, whether or not the contempt is committed in the presence of the Court or outside the presence of the Court.

Ronald L. Goldfarb:

No no, the presence or outside the presence of the Court would have nothing to do with it.

Potter Stewart:

In other words —

Ronald L. Goldfarb:

If it’s a criminal contempt, no matter where it takes place, it would be treated as all criminal contempts.

However, with regard to sentence — I would concede that if the Court is going to do something short of guaranteeing the rights to trial by jury at all times, that something akin to the petty offense rule would apply, would be a reasonable alternative to take.

Potter Stewart:

And what you mean —

Ronald L. Goldfarb:

Whether the six — whether a six-month cutoff or a four-month cutoff or a three-month cutoff is the right point, I don’t know.

I don’t think that there is a scientific answer to that.

Ronald L. Goldfarb:

I, personally, think that if you’re talking about the need for a plenary power for courts to protect against people, profanity, severe physical misconduct in its presence, that even six months goes too far.

That you could have — and I suggest this in my book that you could have a — that all governmental bodies could have some kind of a plenary power to deal with misconduct in its presence which could be quite a bit short of putting a man in jail for one, two, three, or four years.

Now, how I would define that plenary power would take more time than I think I have to devote to this case.

Potter Stewart:

What do you understand by what you referred to as the petty offense rule?

Ronald L. Goldfarb:

The petty offense rule has come to — the term “petty offense” has come to have a meaning of a term of art.

If you pull any Criminal Law Hornbook, book at library shelves, they’ll talk about crimes being divided into different categories, treason, felonies, misdemeanors, and petty offenses.

Petty offenses are crimes which, by their nature and by their treatment, are police regulatory kinds of matters which the courts — because of the volume and the need for speed in certain limited cases and because of the limitation on what the Court can do to the individuals, have been limited to, at the most, six months.

The first section of Title 18 of our Criminal Code or Federal Criminal Code indicates that that six-month rule apply and, in the different treasons that I’ve seen six months have been applied.

Abe Fortas:

(Inaudible)

Ronald L. Goldfarb:

No, Mr. Justice Fortas, I think that it should be strictly limited.

I think that your question is a very vital one because it is important for this Court to deal both with the jury trial question and the 42 (a) question because some courts have distinguished a way.

The Barnett footnote, by saying this is a 42 (a) case, and Barnett wasn’t in the presence of the Court and so we don’t have to follow the rule in the presence of the Court.

That’s why I say it’s very important that if — that the right to trial by jury, whether it’s limited by six months or not apply in or out of the Court’s presence.

I do think that there could be — could conceivably be some cases where Rule 42 (a) would apply.

That is, if this Court should not find as a matter of constitutional right in all cases — all criminal contempt cases that there’s a right to trial by jury but only cases under six months, then conceivably, some misconduct in the presence of the Court, where the sentence is less than six months, 42 (a) could apply but it would be very limited, and indeed, this 42 (a), when it was passed, was considered to apply to only a rare situation.

This is not an unusual departure.

I might say that this Court in Panico against the United States, which was 375 U.S., dealt with the contempt in the presence of the Court.

This was a case involving someone who threw ink oil at the judge or1853 at the prosecutor.

The most disruptive kind of contempt, if any contempt warranted summary punishment, this — the argument would be strongest here and yet, this Court sent it back and said Rule 42 (b) at least is necessary.

There’s got to be a hearing to see if there’s some defense, to see if there’s some extenuation, to see if there’s any mitigation, to see what sentence is appropriate.

Abe Fortas:

Well, what would (Inaudible)

Ronald L. Goldfarb:

In the Harris case?

Abe Fortas:

(Inaudible)

Ronald L. Goldfarb:

The frustrating thing about the Harris case, Your Honor, is caused by the very use of Rule 42 (a).

We don’t know because the man was never allowed to say.

We can certainly assume a number of questions.

Moreover, there’s a very basic rule of criminal law that Mr. Justice Holmes mentioned in the Horning case in 254 U.S., and there’s never a directed verdict in a criminal case even if there are no issues of fact and no issues of law.

In Justice Holmes’ words, a jury may decide in the teeth of the law and the facts.

However, there were some very serious questions suggested even in the very brief colloquy in the Harris case.

For example, the argument about the applicability of the Communications Act, the argument about the tariff that was supposedly violated, the question whether or not the jury was in fact looking into another crime which was — it was brought out in one of the colloquies that petitioner’s position was they were really looking into a violation of the antiracketeering statutes but they were making it look like it was the Communications Act because they had a immunity statute.

Potter Stewart:

I thought, Mr. Goldfarb, that quite apart from of course a jury trial, all — it has well been established that all such questions were entirely irrelevant to the question of this person’s contempt.

The only question there was, had he been directed by the Court to answer the questions and did he, after having been directed to do so, refuse to do so?

Ronald L. Goldfarb:

I would suggest —

Potter Stewart:

And that — now, there might be a relevance as to his sanity or insanity, and that was the Panico case.

But.

Ronald L. Goldfarb:

Yes.

Potter Stewart:

— no such suggestion is made here, and therefore, there were no other issues in the case.

Ronald L. Goldfarb:

Well, I would suggest to Your Honor —

Potter Stewart:

Isn’t that the established law that all these matters of the breadth of the immunity statute and what the grand jury was actually inquiring into and so on, were — could’ve been raised if at all, having been decided here by Judge McClain against the petitioner could have been raised, if at all, only if as or when this person should have been — might have been proceeded against in another criminal proceeding.

It was then and there that he could have raised the — that the question of the breadth of the immunity statute would have arisen.

Isn’t that right?

Don’t the cases stand for that?

Ronald L. Goldfarb:

I would suggest to Your Honor that there was much more that this Court could have looked into if it was interested, as the Government argues it was interested in doing, and as the Brown rationale argues, less interested in punishing the man than in getting his testimony.

If this indeed was so, then the Court would not have been so precipitous.

I think that it compounds the wrong to the petitioner in this case to what — on the one hand, fog him off from making any statements as to what his defenses were because we proceed under Rule 42 (a).

And when I appear before this Court and say that Rule 42 (a) is unfair because he didn’t have any — he wasn’t allowed to say anything, and for the Court to then turn it back at me and say, “Well, what did the man say?”

The man didn’t say anything because he wasn’t allowed to say anything and I don’t know what he would have said but, conceivably, there are defenses.

In Panico, there was a defense.

Wouldn’t it be relevant on the issue of sentence?

How can this Court for example, Mr. Justice Harlan suggested yesterday that the Court — this Court and the other federal courts have the power to reduce the sentence is it’s severe.

How can this Court do it under a Rule 42 (a) proceeding such as this one when the only hearing and the only adjudication of sentence is this, “We open this Court.

I had judged you guilty of contempt.

You’re sentenced to one year.”

Bang!

That’s it.

Under Rule 42 (a), how can a Court like this review a sentence?

You have no basis to know whether a year was — a year may have been too little.

Potter Stewart:

What if he had been given a jury trial?

Ronald L. Goldfarb:

We would certainly know.

Potter Stewart:

What would we know?

Potter Stewart:

What —

Ronald L. Goldfarb:

We would know whatever matters of defense, mitigation, or extenuation that the man had.

Potter Stewart:

What would have been admissible in his defense?

Ronald L. Goldfarb:

We don’t know.

I don’t know.

I didn’t rep —

Potter Stewart:

What do you suggest might have been?

Ronald L. Goldfarb:

I didn’t represent the man at the time.

I don’t know the facts given.

Potter Stewart:

Well, what kind of subjects do you suggest might conceivably be?

Ronald L. Goldfarb:

Infinite ones or none, but at the maximum — at the minimum, if it were none, he would nonetheless be entitled to a trial by jury.

Potter Stewart:

Well, isn’t the only issue whether he was directed to answer the questions and whether or not he refused?

Ronald L. Goldfarb:

In fact, it was the only question, but I suggest to the Court that there might well have been more.

Potter Stewart:

Well, what possible ones would — might you suggest, outside of insanity or insanity?

Ronald L. Goldfarb:

Well, I would suggest whether the issue of relevancy of the question as to what the grand jury was — Mr. Justice Stewart, let me say this.

One —

You’re not suggesting that the jury should be given the power to take the sentence, are you?

Ronald L. Goldfarb:

No no, no, no.

So that under your view, if he had a jury trial, whatever issues there were, the judge would’ve been free, subject to the powers of a review of this Court or the Court of Appeals to impose a year of sentence or a five-year sentence.

Ronald L. Goldfarb:

Yes.

I might also add the crime that was being investigated in this case.

The maximum sentence would have been one year after trial by jury.

Since the Green case, if I may proceed, the dower predictions of those who dissented on this Court have been borne out.

Mr. Justice Harlan pointed out in his majority opinion in the Green case that until 1914, there were no summary contempt sentences for criminal contempts over a year.

But from 1914 until the Green case in 1957, there were nine such sentences.

Since then, and at the time of the Brown case —

(Inaudible)

Ronald L. Goldfarb:

With this —

(Inaudible)

Ronald L. Goldfarb:

With the sentence?

(Inaudible)

Ronald L. Goldfarb:

Yes.

That’s the way I read Mr. Justice Harlan’s statement.

But since that time, sentences have soared and have been typical.

Indeed, the instant case is just one arising out of an investigation in the southern district and I understand that there are four or five petitions for cert pending in this Court now in which the sentences were one year and two years.

I might also add that in some of those cases, Rule 42 (b) was proceeded — was used as the procedure, and apparently, leaving the Second Circuit — the rights of individuals in the Second Circuit to depend on which judge or which prosecutor he’s dealing with.

But in any event, with regard to the right to trial by jury, it is not at all as clear as the Government’s brief urges that we have traditionally just simply denied it.

In the 1965 American Bar Association Journal, the then President of the ABA, Mr. Louis Powell, speaking at an ABA group surely no radical organization said, “The contempt power has been regarded always with uneasy distrust by Americans.

It is at best, a tolerated anomaly to the fundamental principle of trial by jury.”

I suggest that he’s right and that if the Court should, through it — under its supervisory powers or under its constitutional interpretation of the — of Article 3 in the Sixth Amendment, decide that there should be right to trial by jury, it would not at all be such a radical departure from what has been going on in the Congress and in the courts and in the thoughtful discussions of this subject through the years.

One point that Mr. Justice Harlan raised yesterday and which came up again in my conversation with Mr. Justice Stewart is whether or not the power of the Appellate Courts to reduce sentences is really a sufficient enough guarantee.

I suggested yesterday, in answer to that question, that constitutional rights aren’t matters of grace.

You either have them or you don’t.

But, I thought about it further last night and feel that it warrants even a fuller answer.

First of all, the administrator of courts has pointed out in a speech last week and that I’ve read a report in the newspapers that the appellate case load is burgeoning and that if — if anything, we don’t need more kinds of policing jobs in the Supreme Court.

Secondly, I would point out that this kind of argument is really a parallel to the argument.

I believe that was raised when this Court considered Betts and Brady in the Gideon case.

Of course, there are other issues involved there, but in — really, in Gideon, didn’t you say that it’s not enough to reverse convictions where the right of counsel is taken away only where a man is deprived of his rights or hurt, that the case-by-case approach isn’t sufficient?

Well, I think — this is how I interpret it, that if the man is entitled to his right to counsel, he was entitled to it.

I suggest that, as the Gideon case eliminated the case by case ad hoc approach for right to counsel cases, that the Barnett case did the same with regard to sentences which are severe.

(Inaudible) be an awful lot out of that footnote it seems to me are trying to —

Ronald L. Goldfarb:

Your Honor, the footnote in the Barnett case, I think, is vitally important.

I think it’s more than dictum, as the Government suggested in its brief.

Mr. Justice —

It was a concluding result, wasn’t it?

Ronald L. Goldfarb:

It was, and I might point out to the Court that the Third Circuit, the Fifth Circuit, and the District of Columbia Circuit have already adopted this rule without any complaint in Randazzo against the United States in the Fifth Circuit, in Rollason against the United States in an opinion by Judge Bazelon I believe, in the D.C. Circuit, and in the Third Circuit as well.

We don’t know how many District Courts have conformed to it already because if they have, we wouldn’t have any objections.

The only circuit that we know who has — which has not followed it is the Second Circuit, but ha — almost half of the circuits have already adopted this rule.

Moreover, Mr. Justice Clark went out of his way to say that, in view of Barnett’s impending case, the effective administration of justice requires that this dictum be added.

Now, this wasn’t just surpluses or a side-remark that one picks up in the course of the case.

Ronald L. Goldfarb:

It was intended to reach the eyes and considerations of people, and it has.

Tom C. Clark:

All it said was the statement of facts.

Ronald L. Goldfarb:

Beg your pardon?

Tom C. Clark:

All it was is a statement of facts.

Ronald L. Goldfarb:

It is.

It seems to me to be a declaration of —

Tom C. Clark:

— that should be adopted as it was but it’s not in a member of the Court.

Ronald L. Goldfarb:

I understand.

Tom C. Clark:

It wasn’t said in your argument.

It wasn’t said in their argument.

They say it, too.

Ronald L. Goldfarb:

I understand, Your Honor.

Tom C. Clark:

I don’t know why, but dictum is in there.

I think it’s a dictum — it’s not a dictum, as I understand dictum.

Because it’s merely a statement of fact that draws to the attention of those who are going to be charged of the duty of trying one for contempt which the Fifth Circuit of that time to appear to be charged with.

I might understand, but there are some members of this Court who feel that where the offense is more than trivial you must have a jury.

Ronald L. Goldfarb:

I think that those members of the Court that feel that would reflect the wisest and most sensitive thought on the subject, since it’s been considered in this Court.

I would like to conclude by saying that this case really gets down to a very basic issue —

(Inaudible) Mr. Goldfarb, as I get the basic premise of your argument, it’s the uneasiness that you have that the contempt power existing now, as it has been for all our judicial history, is likely to be abused.

Now, how does the abuse, which I take it, means that you’re afraid that long and proper sentences are going to be imposed which won’t be adequately reviewed by Appellate Courts, how is — or any of those fears met by the introduction of a jury trial?

Ronald L. Goldfarb:

The introduction to the jury trial guarantees a man his rights under the Constitution —

To what?

Ronald L. Goldfarb:

— all rights which apply to him before he would be treated as a criminal.

It doesn’t affect —

Ronald L. Goldfarb:

If in fact, we’re treating contemnors as criminals.

I don’t bewail the fact that people go to jail, Your Honor, that people are punished for misconduct in courts.

I think it’s proper that they should.

It’s just a question of the way we deal with people.

We’re dealing with contemnors as criminals.

We’re giving them most of the rights of criminals and all of the bad aspects of being a criminal, but we’re depriving them of their rights to trial by jury.

Ronald L. Goldfarb:

If we’re going to do that, he’s entitled to his rights and the man is being given his constitutional rights is enough in and of itself to be a valuable end.

Well, that argument simply is that the accepted constitutional practice, since the history of this country, has been wrong.

It should be declared.

Ronald L. Goldfarb:

With regard to the summary disposition of criminal contempts, I think that the recent scholarship on the subject bares that out, that the decisions in the past which have upheld it were based on erroneous interpretations of history which have been gone into at great length.

And I might say, that you, yourself, sir —

That argument was made in the Green case and rejected?

Ronald L. Goldfarb:

Your Honor said in the Green case that this Court doesn’t write on a blank sheet.

I would suggest now that this Court has on its sheet the Barnett case and that at — at a minimum, this Court —

In the Barnett footnote?

Ronald L. Goldfarb:

Beg your pardon?

The Barnett footnote.

Ronald L. Goldfarb:

Yes, Your Honor.

Tom C. Clark:

They have said that, historically, there was support?

Ronald L. Goldfarb:

No no, I was referring —

Tom C. Clark:

In fact, the appendix of the government is filed here today which is much more voluminous than Justice Goldberg and myself were able to find in the short trip or in much that we’ve worked on.

Ronald L. Goldfarb:

Yes sir.

I —

Tom C. Clark:

And the case to my mind, it was not — there is no historical evidence that — back there at the time of the adoption of the Constitution, that there was any such practice.

Ronald L. Goldfarb:

Your Honor, I also read the Government’s appendix and I hope that Mr. Spritzer when he gets up to argue, will explain what it all means because the only way — the only weight that I concede to it was impounded.

It had nothing to clarify what the law was or what the law is or what the law ought to be.

It merely was a listing of how certain cases were treated in the past.

I accept it as so, but not dispositive.

Tom C. Clark:

Your argument would be stronger in my view, if you just said flatfooted, but —

Ronald L. Goldfarb:

If what?

Tom C. Clark:

If you just came out flatfooted and said the Court should overrule any decisions necessary.

Ronald L. Goldfarb:

If I haven’t made it —

Tom C. Clark:

But you haven’t got —

Ronald L. Goldfarb:

If I haven’t made it clear that the petitioner would like that, then let me say that that is exactly what we think and I also would like to say, in conclusion that, with regard to the questions of Rule 42 (a) and with regard to the question of a trial by jury, we get down in this case to a very basic question and that is, “Should American law, in the Mid-Twentieth Century, condone sending a man to jail for a year or more without a trial by jury, without even a hearing?”

And I suggest that — I would hate to think that this Court would say yes.

I have talked about the need for a modern and a progressive rule.Let me conclude my remarks to you by going back a bit.

Ronald L. Goldfarb:

The first case in the United States involving summary contempt for publication out of the Court invol — was a case entitled Respublica against Oswald.

It involved a man who wrote an issue called The Independent Gazetteer in Pennsylvania and he wrote at the time about whether or not Pennsylvania should adopt and ratify the Federal Constitution.

For some reason, he was found guilty of contempt and summarily punished.

He took his case to the courts and was turned down on the very precedence we’ve discussed today.

Then, he took his case to the Pennsylvania legislature where he was represented by a lawyer named William Finley.

Finley said then, that it would be absurd to say that the rights of Americans, that American freemen should be no greater than those of the subject of King George.

He said that the right to is — that allowing summary punishments of contempt would do just that and he said, “Such a ruling would involve the sophistry of the schools and the jargon of the law to pervert and corrupt the explicit language of the Constitution.”

That was 1788.

We’ve come almost 200 years from that time and I can do no better in urging the Court today than to reiterate the words of Mr. Finley in the hope that, although they did no good in the first case of summary contempt in this country, that they may do some good in making this the last.

Earl Warren:

Mr. Spritzer.

Ralph S. Spritzer:

Mr. Chief Justice, may it please the Court.

I would like to turn first to the procedural issue whether the district judge here erred in proceeding under Rule 42 (a), which of course authorizes the judge to proceed forthwith if he certifies that he saw or heard the conduct constituting the contempt and that it was committed in his actual presence.

That is a precise description of the case we’re dealing here with here today.

The contempt was committed in his presence and he certified that he saw and heard it.

Now, faced with this, petitioner says in its brief — in his brief, and I quote from it, “Certainly, the distinguishing factor between the application of Rule 42 (a) and the application of Rule 42 (b) is not whether the event occurred in the presence of the Court.”

Frankly, I don’t understand that, unless it means that certainly, the rule doesn’t mean what it says.

And I’m not aided by the single citation which — with which that proposition is adorned with reference to the case of Panico versus United States.

Now, it’s quite true that Panico was a contempt case and that it was preceded against under Rule 42 (a).

It’s also true that this Court sent the case back for a hearing, but it didn’t send it back for a hearing as to whether the contempt occurred in the presence of a judge.

It sent it back for a further hearing because the judge had evidence before him which cast out on Panico’s sanity and the Court concluded that there was a need for observation of this man, an expert testimony, and a further hearing on that question.

This case, it seems to us, is completely controlled by Graham against United States, decided only five or six years ago, followed a year later in Levine against United States, and Judge McClain in the instant case conscientiously and meticulously followed the exact procedure which this Court had only recently approved.

Your Honors will find that every single factor which the majority opinion in Brown relied on is present here.

I shall also point out in a few moments, that certain factors upon which the dissenting Justices relied in brown are absent here.

But to do that, it’s necessary first for me to review briefly the sequence of events, and I propose to show that there was no percipito — precipitous action taken by the judge here, and that matters were fully explored and that there were no unresolved issues of fact before the judge.

This all began with a subpoena answered by the petitioner on July 31, 1963.

The Assistant United States Attorney in charge advised him that the grand jury was investigating violations of the Communications Act and of 18 U.S.C. 1952, a statute which has to do with interstate travel or transportation in aid of racketeering enterprises.

Petitioner was also advised of his Fifth Amendment privilege which he proceeded to claim.

He was then told that since the inquiry related to violations of the Communications Act, he would have immunity under the terms of that statute for any transaction, matter, or thing concerning which he testified — was compelled to testify after having claimed his privilege.

He was again directed to answer and again — and at this point, again refused.

(Inaudible)

Ralph S. Spritzer:

The subpoena — the first subpoena did not cite the Communications Act at all.

It referred to some subpoenas, that some — the conspiracy statute, Your Honor.

I — he was advised by the assistant that they were looking into the Communications Act.

(Inaudible)

Ralph S. Spritzer:

It was the Government’s contention in the Court of Appeals that there — that the grand jury had apparent authority to investigate and was investigating violations of the Communications Act, as well as other violations.

The Court of Appeals agreed with that.

The petitioner attempted to bring that question to this Court and the Court in granting the writ expressly eliminated it.

And so we have not, for that reason raised it.

(Inaudible)

Ralph S. Spritzer:

It was, and the United States Attorney argued to the Court that he was investigating violations of the Communications Act and other crimes.

(Inaudible)

Ralph S. Spritzer:

And I suppose the subscriber’s complicity and any breaches of that, yes.

The next day, after this July 31st refusal to testify, the petitioner was brought before the District Court, his counsel with him.

Judge McClain advised him that this was not a contempt hearing and that he wished to satisfy himself before taking any further steps for issuing any directions that if petitioner answered the grand jury’s questions, he would have an immunity broad enough to protect him from any possible prosecution.

The judge, after hearing argument, and he heard petitioner’s counsel fully, concluded that petitioner, contrary to his counsel’s contention would have full immunity if he testified in a proceeding in which the Government was investigating Communications Act violations even though it was also investigating other crimes.

He then ruled that in order to make it perfectly clear that the grand jury was investigating the Communications Act violations, among other things, the subpoena issued to the petitioner should recite the fact that the Communications Act violations were involved.

That was done.

A new subpoena was issued with this recitation and petitioner appeared approximately a week later, on August 7.

The result was a reenactment of the first appearance before the grand jury.

Petitioner and his counsel were again summoned before the Court.

This was of the second appearance before the judge.

The judge heard argument on the afternoon of August 7th, during which petitioner’s counsel once more contended at some length that the immunity statute was inapplicable or was insufficient when the grand jury was investigating other crimes.

Far from proceeding with unseemly haste, the judge adjourned the proceedings until the following day in order to give the matter further thought.

Petitioner and his counsel appeared the judge a third time on the morning of August 8.J

udge McClain ruled at this point that he was completely satisfied that petitioner would have full protection under the immunity statute if he testified, and he directed him to respond.

Petitioner was taken before the grand jury promptly thereafter and he again refused.

Thereupon, petitioner and his attorney, government counsel, and the grand jury appeared together in the courtroom.

The grand jury reporter was sworn and read the transcript of the proceedings which had just transpired.

And, at this point, the fourth appearance before the judge, Judge McClain ordered petitioner to be sworn and, then and there, directed him to answer the questions.

The Court ruled, when he again refused, that this was a contempt in the Court’s presence.

Ralph S. Spritzer:

He stated that he had repeatedly heard and considered all of the arguments of counsel.

He had previously ruled that he would not consider evidence as to the motives of the grand jury and that he had concluded that the arguments made by petitioner, that petitioner would not have full immunity, were not well grounded.

He then sentenced petitioner to a year in jail.

He admitted petitioner to bail so that he could make his legal arguments on appeal without suffering commitment in the interim.

He also stated on the record that he would entertain a motion for a reduction of sentence if petitioner so moved after having testified.

Earl Warren:

Mr. Spritzer, when was this contempt first committed?

Ralph S. Spritzer:

There were several contempts, Your Honor.

The only contempt which was punished by the judge was the contempt committed in the Court’s presence on August 8.

He could have proceeded against the refusals to testify before the grand jury.

Following the procedure in Brown, he himself, directed petitioner once more to answer in his presence.

That was the contempt which the judge punished.

Earl Warren:

Could he then have sentenced him under 41 (a)?

Ralph S. Spritzer:

In Rule 42 (a)?

Earl Warren:

42 (a), you’re right.

Ralph S. Spritzer:

Yes.

He did so.

Earl Warren:

No, but you say he didn’t do it or he didn’t commit him for contempt committed before the grand jury.

Ralph S. Spritzer:

Oh, I’m sorry.

I misunderstood.

I said the contempt for which he was punished was the one committed before the judge, the last contempt.

Earl Warren:

That’s right, yes.

Ralph S. Spritzer:

That’s right.

No, if he had proceeded against him for a contempt not committed in his presence, the procedure would have been that set out in Rule 42 (b).

Earl Warren:

Well, after a man has committed one contempt, does the Court have the right — and he’s subject to punishment for that, does the judge have the right to hear him before the Court and require him to reiterate it so he could give him a summary punishment rather than a hearing?

Ralph S. Spritzer:

The purpose of the hearing, Your Honor, I think would be to establish the fact, whether the contempt had occurred outside the presence of the judge.

The reason that a hearing is not required when it concurs in his presence is, I believe and has always been taken to be, that the judge doesn’t need witnesses to a contempt which occurs right before it.

I don’t view this as an evasion of any rule.

I view it, rather as a recognition that in this instance, there was nothing further of the way of proof necessary to establish the fact to the judge’s satisfaction.

This Court had only recently approved the idea in the Brown case that the judge might make one more effort to influence the man to give the testimony that the law requires by calling him before the Court, and I think Judge McClain was following that authority when he acted and he referred to the Brown case.

Hugo L. Black:

Mr. Spritzer, is it quite correct to say that the purpose of a hearing in a criminal case, I understand the argument of whether this is a criminal case, the purpose of hearing a criminal case emitting all of the facts, isn’t the purpose of the hearing not to give a man the protection of a criminal — of a jury and in certain kinds of case, a grand jury indictment, the decision of facts by the jurors instead of the judge?

Ralph S. Spritzer:

I would —

Hugo L. Black:

Assuming this was a criminal case, would it be correct to say that the only purpose of the hearing is to have the facts recited by the judge?

Ralph S. Spritzer:

I would certainly agree that, in a case of an ordinary crime, the jury serves a variety of functions.

The hearing that is required by Rule 42 (b) where it is applicable is, I take it, a hearing in order to acquaint the judge with the facts, and I was addressing myself to the Chief Justice’s question as to whether the petitioner was deprived of a right in as much as the judge had proceeded under Rule 42 (a), rather than Rule 42 (b).

And my response was that I don’t think there was any doubt or can be as to the basic fact whether this petitioner refused to answer nor do I understand the petitioner to urge that there’s any dispute as to that fact.

I’d say that fact was known to the judge because it occurred in his presence.

Hugo L. Black:

I was merely speaking out to one statement, the purpose of a hearing is merely to have the facts presented.

Ralph S. Spritzer:

Well, I was —

Hugo L. Black:

Not in a particular way.

Ralph S. Spritzer:

I meant in the context of Rule 42.

Hugo L. Black:

Thats right, alright.

Earl Warren:

Wouldn’t you say that, in any contempt committed outside of the presence of the Court, that the Court could bring him into Court and say, “I just want to know if you adhere to what you have done outside of Court,” and when the man says “yes,” summarily punish him under 42 (a) instead of 42 (b)?

Ralph S. Spritzer:

I don’t say that as to any Your Honor, but I do say that the trial judge has a direct function in relation to the performance of the grand jury.

The grand jury is part of the District Court.

The grand jury depends upon the judge for the power to summon a witness and for the power to compel him to testify.

The judge has a role.

This is the only — the grand jury’s process is enforced through the judge and therefore, I don’t think it unreasonable for the judge to use his efforts before holding a man in contempt to induce him directly to testify before the grand jury.

The Court’s process is what compels testimony before the grand jury.

So, I don’t think that any case would be a fair analogue to the case that we have.

Earl Warren:

I would suppose that any case — in any case where a man could be convicted of contempt outside of the presence of the Court that the Court would have some role to —

Ralph S. Spritzer:

I know.

Earl Warren:

To play because it would have some connection with the Court or it wouldn’t be a contempt.

Now, in just what cases would you say that that could be done and what cases that couldn’t be done?

Ralph S. Spritzer:

Well, I think I’m on clear ground in this case because the Court, has twice, had this problem before it and has ruled that it is a proper function of the District Court to seek to implement the performance of the grand jury in this way.

This case is absolutely indistinguishable from two cases which Your Honors have decided in recent years.

I’m not prepared to say that that should be the method of proceeding in all cases of contempts certainly, nor do I think that that is my burden here.

Abe Fortas:

Mr. Spritzer, (Inaudible).

Ralph S. Spritzer:

There were three steps that morning of August 8.

The judge first had the petitioner and counsel in and directed him to testify.

Abe Fortas:

(Inaudible)

Ralph S. Spritzer:

It was in the courtroom in which I guess, the grand — the courtroom that the grand jury was using.

I think that’s correct.

Abe Fortas:

(Inaudible)

Ralph S. Spritzer:

This is the last step.

I was tracing through the three steps.

The record shows, as to the last step, that it was in the courtroom with the ju — with the grand jury present.

I don’t — do we have any — am I clear on this or did you have a question beyond that, Your Honor?

Abe Fortas:

(Inaudible)

Ralph S. Spritzer:

The grand — when the man refused to testify on the last occasion before the grand jury, the judge was notified.

He then assembled in the courtroom and I’m willing to assume, I don’t recall whether the judge went to the courtroom where the grand jury sat or the grand jury members came to his courtroom that the Court reassembled, that much is evident from the record in a courtroom.

The judge, now present, along with petitioner’s counsel, who of course had not been present during the prior grand jury session.

At that point, the hearing became an open hearing.

Now, there was no — the transcript does not contain any declaration by the Court prior that the Court is now open and the judge apparently regarded all of the proceedings which he held at which he presided as being an open court.

When counsel, a few moments later, indicated that he was not aware that this was an open proceeding, the judge said “yes, this is an open hearing and it has been for the last few minutes.”

Abe Fortas:

(Inaudible)

Ralph S. Spritzer:

Yes, Your Honor.

I think if the judge says it’s an open hearing and the records of the clerk show it’s an open hearing and counsel doesn’t make any contest to that, doesn’t make any record whatever that the judge’s statement that it’s an open hearing must stand.

And I would say further, that no claim was made in the Court of Appeals or in the petition for certiorari that there was any question in this case that these proceedings were secret and I don’t think that question is here.

Abe Fortas:

(Inaudible)

Ralph S. Spritzer:

It’s an aspect of all judicial proceedings I suppose, that they be open Your Honor.

Abe Fortas:

(Inaudible)

Ralph S. Spritzer:

Yes, I would say that counsel can make certain if the courtroom is open in a hearing before the judge.

And if the counsel here had any doubt on that score, he certainly could have indicated it before the judge.

There’s no record to suggest that the judge erred when he said that this was an open hearing and anyone can come in.

I assume from his statement, the doors were open.

I said earlier that I thought this case was a fortiori from Brown and I think it is, and that, the judge’s handling of this cannot be fairly characterized as spur of the moment.

I think he did explore every issue that was raised before him in several colloquies with counsel.

I should like to proceed to the second question raised by petitioner, which is his broad challenge to the Government’s contention that a jury trial is not required in contempt cases.

I shall have to be brief, especially since I do wish to attempt to explain that there may be something in this volume that is more than mere poundage.

I do want to treat the third question in the case.

Ralph S. Spritzer:

The issue of a right to jury trial is — of course, has been extensively briefed and argued in recent years before this Court in both the Green and in the Barnett cases.

I shall only review very briefly the principal arguments which we advanced in those cases.

Our contention, of course, basically is that the framers did not treat contempt as a crime or a as a criminal prosecution in the sense that those terms are used in Article 3 and in the Sixth Amendment.

We relied in Green and Barnett upon the English common law, upon the fact that all of the commentators who were known to the colonists had stated flatly that contemnors were subject to attachment and to trial by the Court.

And, we pointed to what seemed to us to be a fairly uniform practice among the colonies of which I shall say more later.

We also relied heavily upon the first Judiciary Act of 1789.

That is the statute, after all, which was reported by a Senate Judiciary Committee, a majority of whose members were members of the constitutional convention.

And that Act unequivocally conferred upon the courts in their discretion, the power to punish contempts by fine or imprisonment.

I should like to add a footnote to that.

The Congress in 1790, passed the first General Crimes Act.

The General Crimes Act, which set forth all of the offenses which Congress, at that time, wished to make crimes, made no reference whatever to contempt.

Contempt was dealt with exclusively in the statute which created the federal courts.

And I submit that the only satisfactory explanation of that is that the first Congress regarded that power in conformity with the established tradition and practice that they knew as an inherent power of the Court.

Now, from the beginning until the present day, the suggestion that a jury trial is constitutionally required in contempt cases had been rejected by this Court in what Justice Harlan termed in the Green case as “a long and unbroken line of decisions.”

I think, indeed, that I am right in suggesting that, until the Green case itself decided some 170 years after the Constitution, not a single Justice had dissented from this view.

Potter Stewart:

Was there a demand for a jury trial in this case?

Ralph S. Spritzer:

I don’t believe.

Potter Stewart:

I’ve just been looking through the transcript.

I don’t–

Ralph S. Spritzer:

I — I withdraw that.

I think that the argument was made.

Potter Stewart:

Was it?

Ralph S. Spritzer:

I think it was made.

Potter Stewart:

I haven’t been able to find out until now.

Ralph S. Spritzer:

In either event, we don’t question that it’s here.

Potter Stewart:

Because it doesn’t —

Ralph S. Spritzer:

What counsel said in the colloquies, I don’t immediately recall.

Potter Stewart:

I couldn’t find it.

Ralph S. Spritzer:

We don’t think the distinction between general crimes and contempts is an arbitrary one.

There are differences of moment.

Ralph S. Spritzer:

A general statute defining a crime remains a proscription addressed to the world at large until it is implemented by legal proceedings.

Defiance of a judge, whether it is by misbehavior in the courtroom or by direct disobedience of the Court’s process takes place after the legal process has crystallized.

The authority of the Court, so to speak, is on the line.

Its very authority to function effectively may, in some instances, be at stake.

The Attorney General, the Solicitor General, the Department of Justice are particularly and gravely concerned by the problems which are incident to the enforcement of injunctive decrees of the federal court.

Injunctions, of course, are characteristically issued when there is a grave threat of the irreparable injury, perhaps a threat to the fundamental rights of those who invoke its protective cloak.

In the last decade, certainly, we have seen many instances in which injunctive orders were issued to guard the rights, not to mention the lives and the property, of minority groups seeking to assert their constitutional rights as declared in decisions of this Court.

Time and again, the local federal judge had been called upon to enjoin conduct which would interfere, perhaps violently interfere, with the exercise of those rights in communities where the dominant majority was a validly hostile, oftentimes, communities where not a single voice among the majority could be found to defend the court order.

We believe that a rule which would say that the federal judge could vindicate his lawful order in such a situation only with the unanimous concurrence of 12 members of that community would be a very serious setback to attempts with which the Attorney General is charged in his efforts to vindicate constitutional and other rights.

Now, this has been —

Potter Stewart:

Mr. Spritzer, excuse me.

I’m just going to say on that — without regard for the severity of the punishment.

Ralph S. Spritzer:

I think the severity of the punishment is a question, Your Honor, quite apart from the question of procedure and trial by jury.

I have never contended, and we do not contend, that this Court should not strike down excessive punishments where they occur.

Earl Warren:

What — in your opinion, is the extent of the punishment for contempt and defiance of the Court?

Ralph S. Spritzer:

Precisely that defined by statute, Your Honor, which is fine or imprisonment.

We agree.

Earl Warren:

Any imprisonment?

Ralph S. Spritzer:

In the sound discretion of the Court subject to the review of the appellate courts and of this Court.

That is the same punishment that would exist in the case of a jury trial, I take it.

Earl Warren:

Well, assuming that this Court has — would have the power to reduce a punishment, what record would it have to act upon in a case like this where the judge merely said, “This is a contempt proceeding.

I find you guilty.

I sentence you to a year in the penitentiary.”

Now, what record is there that this Court could have for reducing that sentence?

Ralph S. Spritzer:

I think you do have some awareness of the circumstances.

Earl Warren:

Some awareness, but is that sufficient?

Would you say, some awareness?

Ralph S. Spritzer:

I think your role, Your Honor, would be similar to that —

Earl Warren:

Some legal reason?

Ralph S. Spritzer:

Pardon?

Earl Warren:

Would you say that some awareness, rather than some legal reason, would be sufficient —

Ralph S. Spritzer:

No, I was pointing —

Earl Warren:

For this Court to do it?

Ralph S. Spritzer:

I was pointing to the fact that I don’t think it’s quite the case that you have nothing but the judge pronouncing sentence.

You have an awareness of the kind of proceeding that was involved, what the misconduct consisted of whether it was persistent, what steps the judge took to attempt to induce the man to comply, as well as his final imposition of sentence.

I think your judgment in circumstances like this, whether a punishment is an abuse of discretion in view of the nature of the offense is similar to the kind of judgment a legislature makes when it says, “We think no more than one year for assault and battery” or “No more than five years would be reasonable for this offense.”

I would say further that any additional circumstances which bear upon the particular misconduct may be taken into account.

But it seems to me that the problem of judging whether a sentence is excessive is there, whether or not there has been trial of the facts by a jury.

Earl Warren:

Well, I understood you to say, in response to my earlier question, that the contempt which is being punished for was only this last appearance in the Court.

Ralph S. Spritzer:

I did.

Earl Warren:

And that was just as brief as I have stated.

Ralph S. Spritzer:

Yes.

Earl Warren:

That they said, “This is a contempt trial.

You’re guilty.

You go to prison for a year.”

Now, what is there on that record, if that’s the contempt that he’s charged with, what is there in that contempt that would — in that sentence that would enable us to review the case to determine whether it was a just and reasonable sentence?

Ralph S. Spritzer:

I agree with Your Honor that that was the contempt.

The only additional point I was making was that I think the Court could take account of the antecedent conduct which led up to that final direction and refusal.

Earl Warren:

Well, why shouldn’t a man have a right to put — to have in the record, at least, what defense he had to the charge of contempt before he was sentenced to a year in penitentiary?

Ralph S. Spritzer:

Your Honor, the counsel for petitioner stated that he wished to argue and he did argue repeatedly before the judge on several occasions.

He wished to argue that if —

Earl Warren:

You mean, before this contempt was committed?

Ralph S. Spritzer:

As the — there were four hearings before the judge, at which times, the judge told him to testify.

Earl Warren:

But I understood you to say that that wasn’t the contempt for which he was committed.

Ralph S. Spritzer:

I did say that, Your Honor, but then —

Earl Warren:

Well, why —

Ralph S. Spritzer:

This was the fourth reenactment of a dispute which had been argued three times previously.

Earl Warren:

Yes, but if this is a new contempt, the contempt that he’s being charged with, why do you take into consideration all the history that goes before it?

Ralph S. Spritzer:

I take it into consideration, Your Honor, only because the arguments which he said he wanted to make had been previously explored and the judge said he was relying on his prior ruling.

Earl Warren:

Well, if counsel —

Ralph S. Spritzer:

This man said that he wanted to call grand jury witnesses.

He said that at page 33 in the last hearing before the judge.

He wanted to call the grand jurors, themselves.

He was harking back to his contention that the grand jury wasn’t actually investigating what it said it was, and the judge had repeatedly ruled that “I’m not going to hear that.

That that issue is not open.

I’m not going to take testimony on the bona fides of the grand jury’s purposes in conducting this inquiry.”

The judge had taken the view that, as a matter of law, if the grand jury was acting under its apparent authority and if the questions which it was asking were relevant to a possible permissible purpose within that authority, that then the petitioner did not have a right to question the grand jurors or to show by other means that the grand jurors were not in good faith or were not doing what they said they were.

He ruled that as a matter of law, and therefore, said there was no factual issue open.

Earl Warren:

Suppose he wanted to show in defense that this wasn’t an open court proceeding.

Ralph S. Spritzer:

I would —

Earl Warren:

Now, how could he ever raise that before us?

And if it wasn’t an open court proceeding, would this be a valid judgment, do you think?

Ralph S. Spritzer:

No, I don’t think it would be.

Earl Warren:

Then how could the man raise it if — in this Court if that was something that he had in mind?

Evidently, he did have something of that kind in mind because he asked the Court.

He said, “This is a closed proceeding,” and the judge said, “No, we opened it two or three minutes ago.”

Ralph S. Spritzer:

He said the judge —

Earl Warren:

Now, suppose the man had been given an opportunity to defend himself, in some way or other, under 42 (b) or under jury trial or in some way and he had said, “I was convicted of this contempt in a closed proceeding.”

I suppose he put on the grand jurors and others who were there in the courtroom to show that that was the fact.

How would we ever be able to disclose that?

Ralph S. Spritzer:

Your Honor, the question of whether it’s being — whether this proceeding was open is not before you, I say, because counsel asked this question.

The judge said it is open and then he accepted that to all appearances.

He never questioned that it was open thereafter.

I certainly assume that a lawyer could say, if the judge said it’s open and it wasn’t open, he could say for the record that he did not believe it was open.

Earl Warren:

Well, he might have said it for the record but still, he wasn’t being tried.

He was already convicted.

The judge had already convicted him and sentenced him to a year.

Ralph S. Spritzer:

The judge said, “This proceeding has been open since I came into the room.”

Earl Warren:

Yes.

Ralph S. Spritzer:

And counsel did not question that any further and has not raised the question in the appellate proceedings throughout.

Ralph S. Spritzer:

So, I —

Earl Warren:

No, but suppose that or any other defense that he wanted to raise, there might be other defenses he wanted to raise.

Does he have to raise every possible defense —

Ralph S. Spritzer:

Your Honor —

Earl Warren:

— in this proceeding that he might have raised in that Court if he had been given an opportunity to do so?

Ralph S. Spritzer:

My argument, Your Honor, is that he presented no issue of fact or law which the judge did not consider at that hearing.

Earl Warren:

Did the judge offer him an opportunity to present any facts or law?

Ralph S. Spritzer:

He heard argument of counsel and concluded that there was no issue before him other than the question whether this man had refused to testify and whether the grand jury had been proceeding within its apparent authority.

He said there was no disputed question of fact and a few issue of law before him and, on that day since proceeding.

Now, if this were — had been a 42 (b) hearing, Your Honor, if they came to this Court under Rule 42 (b) and had proceeded and the counsel had said, “My understanding is that the courtroom door is locked and the public isn’t here.”

He would have to make a record to show that that was so.

Now, what occurred in this case, I think was that having been before the grand jury and then having adjourned to a proceeding before the judge, counsel was not aware that the Court considered the Court to be open when it came into the room and took over the proceeding.

And, the judge said, “This is open and has been,” and so the Court records reflect.

That’s all we have to go on.

(Inaudible)

Ralph S. Spritzer:

Pardon?

(Inaudible)

Ralph S. Spritzer:

I think that — I assume that it was in the same courtroom.

The grand jury apparently, had been using a courtroom for its deliberation and I take it what took place is that the judge entered the courtroom and got up on the bench and took over the proceeding and he said to the U.S. Attorney, “go ahead and bring on your witnesses.”

The U.S. Attorney brought on the grand jury reporter and she testified that she had just made note for the proceeding that had taken place a few moments before.

She read the transcript and the judge proceeded as he would at any other hearing.

Abe Fortas:

(Inaudible)

Ralph S. Spritzer:

I think the precise contempt is through a refusal to answer the questions before the grand jury as directed by the judge in his presence at a — what you might call an ancillary proceeding to seek to get his testimony for the grand jury.

Abe Fortas:

Now, the purpose of having the judge ask questions all day is so the plaintiff is held in contempt, and he’s in contempt in so far as what you’re looking for.

Ralph S. Spritzer:

This Court said in the Brown case that it thought it permissible, if not desirable, procedure to use the authority of the Court to make one last effort to get the witness to testify.

Abe Fortas:

(Inaudible)

Ralph S. Spritzer:

I think it —

Abe Fortas:

(Inaudible)

Ralph S. Spritzer:

I think that, in the judge’s view, that the proceeding became open when he came into the courtroom and took the bench, I assume, and this is not something I can spell out by references to the transcript.

I assume that every hearing before Judge McClain, at which he called this petitioner and counsel in, was an open proceeding.

Ralph S. Spritzer:

I assume — I mean by that, I assume, the doors of the Court were open and anybody could walk in.

Potter Stewart:

The record shows that the Court was open by proclamation on page 60.

Ralph S. Spritzer:

That is the minute entry on page 60.

Now, whether the —

Potter Stewart:

At page 33 —

Ralph S. Spritzer:

Whether the prior — what the prior said when it was opened, if he made a — an announcement, I don’t know because Court reporters don’t normally take that down.

The record — the minute entry shows that the Court was open by proclamation, and the judge said it’s been opened for the last few minutes when counsel expressed to believe that it might be closed.

That sums up as to the record —

Potter Stewart:

The Court also said —

Ralph S. Spritzer:

On the point of the —

Potter Stewart:

The Court also said this is a contempt committed in open Court, and he said that is for the conviction.

Ralph S. Spritzer:

Yes, that is so.

If I may turn to the last point, the suggestion which comes from the footnote in the Barnett opinion that contempt punishment should be limited to those associated with petty offenses.

That suggestion, I take it may have been very largely prompted by the historical discussion which appeared in Justice Goldberg’s dissent in the Barnett case.

Your Honors will recall that he concluded largely on the basis of an examination of five colonial statutes, that at least five of the original 13 colonies had specific statutory limit on the sanctions for contempt.

He goes on to state that some of the other colonies adopted limitations after the ratification of the Constitution.

Concluding that these statutes did not prescribe severe penalty, he suggests that the colonies may have regarded contempt as akin to a petty offense in terms of the punishments which might be imposed therefore.

Now, responding to this hypothesis, we have undertaken an elaborate study of the colonial statutes and precedents, a great many of which are available only in manuscript form.

The department study was conducted over a period of many months by some nice or 10 lawyers working under the direction of Joseph Smith, a professor of legal history at Columbia who is with me today.

Professor Smith has devoted many years to the study of colonial materials.

Now, the results of this study are set forth in the appendix.

Because of the relative inaccessibility of the materials, we have endeavored to set everything down rather than to proceed more selectively.

In the brief time I have remaining, I cannot begin to cover all of the detail.

I shall try to develop in broad strokes some of the general conclusions which we think are warranted, relying upon our printed documentations, printed appendix, to provide further documentation.

I’d also like to address myself with some particularity to the statutory materials, upon which Justice Goldberg relied.

I shall point out that we think there were very serious errors, omissions, and misinterpretations in his presentation.

I hasten to add that the reasons for that are quite understandable, the materials are fragmentary, and they’re difficult to gather.

The Justice did not have any briefing on this point and he obviously didn’t have the time and the facilities for an exhaustive study such as we’ve undertaken.

We’ve shown our discussion of the history that, first, that the common law commentators known to the colonies were unanimous in their view that contempt was punishable by fine or imprisonment or, in some instances, by corporal punishment.

We have not found anything in any of the commentators to suggest that the power was thought to be confined to the imposition of trivial penalties.

Ralph S. Spritzer:

Now, this is of some importance because the colonial courts were, of course, guided by the English common law even when the common law was not received as binding upon them.

Hugo L. Black:

(Inaudible) with reference to the penalty, what was the maximum penalty that you found had been imposed in colonial days for contempt?

Ralph S. Spritzer:

For a contempt?

We found — I intended to go first into the statutes before the cases.

Hugo L. Black:

I didn’t intend to bother you, but you had just conferred to the fact.

Ralph S. Spritzer:

I was referring to this point, Your Honor, to the common — we didn’t find any commentators who suggested that it was confined.

They spoke of fine or imprisonment or corporal punishment at the —

Hugo L. Black:

So far as what was done, not what’s done in —

Ralph S. Spritzer:

Yes, I shall come — I shall come to that, Your Honor.

Hugo L. Black:

You’ll tell us when it comes to that.

Ralph S. Spritzer:

I will.

Let me, before coming to the cases, say generally of the statutes that we have not found any act which comprehensively limited the power to punish contempt or any statute which set a maximum for willful disobedience of an injunction or a decree of the Court.

There were, to be sure, various statutes which limited the punishment which might be imposed for specified forms of contempt, such as the non-appearance of a juror or the use of profanity in the courtroom.

Kindly turn to the statutes upon which Mr. Justice Goldberg relied in his opinion in Barnett, he stated at page 742 of his opinion, that the South Caroline statute permitted a fine not exceeding £10 for any contempt by word or gesture and a fine of the discretion of the Court for anyone who should strike or use any violence in the said courts.

It did not permit imprisonment.

Justice Goldberg’s citation was to a 1731 Act dealing with misconducts in a courtroom.

We have found that another provision of the same statute provides, this is set out in Appendix 328, that if a witness fails to appear or give evidence at a trial for a felony, he shall be dealt with according to the order of the common law.

Still, another statute which was not noticed, provided for a £500 fine, not — in contrast to the £10 fine in this 1731 statute, a £500 fine for a grand juror who willfully failed to appear.

£500 was, of course a huge sum in that day when petty offenses were characteristically punished by fines measured in shillings or a few pounds.

On the same page of this opinion, Justice Goldberg referred to a Maryland statute of 1785 having to do with disobedience of the Courts of Chancery, and he stated that it permitted no punishment exceeding £10 current money.

Our examination shows that this provision is actually one relating to civil contempt and that the £10 provision has to do with purgation of that contempt.

The very statute which was cited provides that another point, and here, dealing with criminal contempt, that the chancellor may impose indefinite mprisonment for disobedience of his rule, order, or decree.

An earlier Maryland statute noticed last term or two terms ago dealing with violent misconduct in the courtroom authorized any corporal punishment not extending to the taking of life, which the Court might see fit to impose.

In 1788, Maryland statute provided for £100 penalty for a sheriff who failed to secure proper jurors.

This was a monetary penalty far and excess to that associated with petty offenses in the colonies or permitted under the Maryland Petty Offense Act.

In the case of Connecticut, Justice Goldberg referred to a 1667 statute which authorized, in the case of courtroom misconduct, such punishment as the Court might have judged most suitable.

And then, he found significance in a proviso which limited to a small fine or to two hours in the stocks, the punishment which a single judge might impose for such a contempt.

This provision does not apply to all contempts.

More pointedly, it has no application whenever two or more judges sit in a case, which was commonly the situation in the Connecticut colonies above the Justice of the Peace level.

We have additionally pointed to passages from writings of the Chief Justice of Connecticut, Zephania Swift, which spoke unequivocally of the plenary power of contempt enjoined by the Connecticut Court.

Ralph S. Spritzer:

The fourth colony that Justice Goldberg referred to was New Hampshire.

He cited in his opinion, enacted February 9, 1791, which permitted imprisonment for contempt not exceeding 10 days or a fine of £10.

This provision related to non-appearance of a witness.

It did not relate to contempts generally.

And, as we show, New Hampshire had numerous other statutes.

For example, wholly discretionary punishments were authorized by statutes relating to the abuse of court officials and misconducts in Court.

Indeed, on February 16, 1791, one week after the passage of the statute to which the Justice referred, the New Hampshire legislature provided for imprisonment up to 12 months and a fine of £90 for interference with service of court practice.

Hugo L. Black:

Did it provide how the trial should be held?

Ralph S. Spritzer:

No, sir.

Hugo L. Black:

Did — is there any of these statutes that you referred say that the judge can try him without a jury?

Ralph S. Spritzer:

None of them deal with the procedure one way or the other, except insofar as might — one might infer from certain terminology in the statute if a word like “attachment” is used as is true in some the —

Hugo L. Black:

It’s a little difficult to view that in light of the fact that the offenses punishable have always been tried by jury?

Ralph S. Spritzer:

Pardon?

Hugo L. Black:

It’d be a little difficult to go on terminology, wouldn’t it?

If you want to get in —

Ralph S. Spritzer:

I say there is nothing —

Hugo L. Black:

You’re not using these statutes, as I understand it, to show that they would not have been indicted at a trial by jury for violation of those statutes.

Ralph S. Spritzer:

No, we show by the cases that the — they were not jury cases with such rare exceptions as we have noted.

Hugo L. Black:

You show that — do you show why they were not tried by jury?

Ralph S. Spritzer:

There are —

Hugo L. Black:

If they waived the jury trial.

The statute said nothing about —

Ralph S. Spritzer:

These statutes do not.

These — I’ve been referring to these statutes in terms of the punishment which might be involved —

Hugo L. Black:

That’s what I mean.

Ralph S. Spritzer:

At this point, Your Honor.

Hugo L. Black:

That’s what I want to bring out.

Ralph S. Spritzer:

Yes.

I intended to go further into the history.

I think I shall have to leave that to the brief in due of the fact that my time has almost expired.

Ralph S. Spritzer:

I did want to get back to the question which Your Honor asked about what the cases showed in the way of punishment.

The great majority of the cases, the punishments were trivial.

We have — we don’t for a moment deny that that is so.

Most contempts then, as now, are, I suppose, trivial.

I suppose that there are 20 cases today in which somebody is punished by a fine for every case in which imprisonment is imposed but, throughout the colonial period, we have demonstrated, I think by this appendix, one finds a regular sprinkling of cases in which the punishment was far and excess of that which was associated with or permissible under those colony statutes for petty offenses.

Imprisonment in the colonies was of course, rare.

It was rare in the case of felonies, as well as in the case of contempts or any other offenses.

It was apparently not considered a sound political economy to put people in jail and to have other people watch over them.

The penalties were ordinarily fines, whereas, in the case of petty offenses, it appears that the outer limit was probably about £10 for petty offenses in most of the colonies.

We have found cases of contempt, numerous cases in which the penalties were £20, £40, £50, £100, and even £200 for contempt.

There are cases of corporal — severe corporal punishment as well, particularly in the earlier period.

Other penalties were occasionally imposed, such as banishment or a substantial loss of privilege.

Jail sentences, as I say, were relatively rare in the colonies and that’s cruel crimes, as well as of contempt.

Earl Warren:

Mr. Spritzer, what happened to a man under £200 penalty if he didn’t pay the fine?

What — you say there wasn’t any imprisonment.

What did they do with him?

Ralph S. Spritzer:

I expect they might have put him in jail then.

They did put people in jail for debt.

Usually, it seems that when they put people in jail, it was exceptional and it was for relatively short periods and I suspect because they didn’t want to maintain penitentiaries.

Other forms of punishment, corporal punishment were of course used on occasion in the colony.

Hugo L. Black:

I suppose there couldn’t have been much doubt that if a man was tried and they call the defense contempt and could banish him for the country for it, that he’d probably would have been entitled trial by jury, wouldn’t he?

Ralph S. Spritzer:

I have not — we have not —

Hugo L. Black:

In any civilized — for you to commonly express it, in any civilized society.

Ralph S. Spritzer:

We have not found any case where there was a contempt in the presence of the Court or a disobedience of the writ of report where it appears that a jury trial was hired.

There are several cases in which there was what was then called a constructive contempt committed outside the presence of the Court, perhaps blaspheming a judge in which it appears that there was a jury trial.

There are a few cases in the New England colonies where they had an offense known as contempt of authority which was apparently their form of sedition which was indicted by grand jury and tried by petty jury.

There are a few cases in which the contempt was apparently an independent crime or coupled with a crime and it was tried by jury.

In the overwhelming number of instances and without exception where the contempt was in the Court’s presence or was in disobedience of the Courts’ order, without exception, it appears that it was a non-jury proceeding, irrespective of the punishment which was imposed, Your Honor.

That’s our conclusion from this material.

Hugo L. Black:

If this particular man had been tried under statute passed by Congress which compelled him to answer the question, would he have been entitled to trial by jury, statute passed by Congress rather than order of the Court?

Ralph S. Spritzer:

And the Courts — well, I would suppose, before there was any contempt there would have to be some implementation of the statute by a judicial order of some kind.

Hugo L. Black:

Well, what i — what I mean is, if there are many times that people are tried for contempt and all times, as I understand it, but it’s not under a statute passed by Congress.

The statute passed by Congress had required that he answer questions or else suffer punishment over here, would he have been entitled to a trial by jury?

Ralph S. Spritzer:

It would seem to me inevitable that such a statute would have to be implemented by the asking of particular question than a direction by a judge, and I would think, if the statute called for a judge’s intervention for some order of the judge and there was non-compliance, that that would be a contempt punishable by the Court unless Congress chose to establish some statutory penalty.

Hugo L. Black:

But we do have many — I started to ask you a question because I’m a little bothered by your statement of the Attorney General being bothered but not having power always to try people for violation of injunction without a jury.

Ralph S. Spritzer:

Yes.

Hugo L. Black:

One is a violation of a law made by the judge.

One is a violation of the law made by the Congress.

And, you — as I understand it, the Attorney General who argued is bothered because they want to create more crimes by injunction so that they can avoid having a trial by jury.

Ralph S. Spritzer:

No, I’m not.

I’m not suggesting that we are seeking any taking cases out of the normal body of criminal law which are in there or expanding the types of cases in which injunctions are sought — injunctions are to be issued.

I was suggesting that, in cases where the Courts have found it necessary to issue an injunction in relation to a specific crystallized controversy —

Hugo L. Black:

Well, take, for instance —

Ralph S. Spritzer:

Because there is an emergency or a threat of injury —

Hugo L. Black:

An order —

Ralph S. Spritzer:

Pardon?

Hugo L. Black:

Take, for instance, an order under the old prohibition law violating not to vi — ordering not to violate the prohibition law at the moment.

Would you think he would be entitled to a jury there?

Is that what’s desired, that the judges can issue orders to obey laws that Congress has passed and then try them without a jury?

Ralph S. Spritzer:

I agree with Your Honor completely that in a case of a criminal statute, that cannot be converted into a non-jury proceeding.

Hugo L. Black:

But, frequently, the judge has allowed to issue injunctions to prevent its violation, and then the only difference would be in our systems of law and whether legislature alone made it — said no to it, you’ve got a trial by jury.

But where the judge adds his statement to it, you’ve got a trial by —

Ralph S. Spritzer:

I think the judge does more than add his statement, if I may say so, Your Honor.

Hugo L. Black:

Injunction.

So, he advice — order them not to violate a law that Congress has passed.

Ralph S. Spritzer:

Yes, but I was — I do think that where a judge issues an injunction, and it of course has to be a valid injunction or it can be set aside, if a judge issues an injunction, he has made a determination that there is an immediate threat of irreparable injury.

Injunction is an extraordinary remedy designed to protect rights, and I think that that presents different problems of enforcement and administration and has historically been treated as different since the very existence of the chancellor.

Hugo L. Black:

Well, each — each order, legislative order that you don’t violate the narcotics law, you don’t violate the prohibition law, each one of them is an order that you don’t do it and what —

Ralph S. Spritzer:

There are both orders, I agree.

Hugo L. Black:

That’s all I want to get, that is, I hope I do.

Hugo L. Black:

The statement that you were not meaning, the ones you said about the Attorney General were that this would become a government by injunction —

Ralph S. Spritzer:

No —

Hugo L. Black:

— in order to prevent trial by jury.

Ralph S. Spritzer:

No, indeed.

I’m not suggesting a broadening of the instances in which injunctive power is used.

I am suggesting that, in the narrow class, injunctions are the exception.

There has to be an extraordinary showing, normally, to entitle one to an injunction.

I am suggesting that in the narrow class of cases where injunctions are necessary and appropriate and are validly issued, that I do think it important in that class of cases that the power of the Court to vindicate the order which is written into that injunction should not depend, as this Court put it in another day, upon the submission of the question of obedience to another tribunal.

I do think it is important for the judge to be able to carry it out.

Hugo L. Black:

In each instance, what is involved is whether it’s an injunction by the Court or by passage of a law by Congress forbidding something to be done in each instance.

In each instance, it’s an act of the government which says “we forbid you to do this.”

Ralph S. Spritzer:

I agree on that.

Hugo L. Black:

What is the basic premise for drawing a line, taking away a man’s right that he ordinarily has under the Bill of Rights simply because the Court adds its sanction for that which Congress has imposed?

Ralph S. Spritzer:

I think it’s more than an addition of a sanction, Your Honor.

As I view it, the Court’s power to issue an injunction or decree presents a considerably different problem than a statute at large.

This is an order directed to a particular controversy which has been thoroughly litigated and a specific order has been issued to deal with a situation which had extraordinary attributes that a threat of their irreparable injury perhaps, some kind of emergency, some kind of threat of interference with the rights of the person who is seeking the injunction.

The Court has made determinations.

The Court’s authority has crystallized in the form of a specific order directed to a specific controversy and served upon specific parties.

Now, I think the implementation of such an order, if it’s flouted, does present very serious problems of judicial administration and that if at all such cases jury trials were required, I think those problems would be granted.

Earl Warren:

Do you want us to understand, Mr. Spritzer, that you and the Attorney General are concerned less in civil rights cases, lest the Court deprive the Courts of the right to summarily commit the man to prison for a term of years as they did in the Green case and the Brown case?

Do you want that — do you think that power is desirable for use in such cases?

I only say that because you mentioned civil rights cases.

Ralph S. Spritzer:

I think my opponent mentioned civil rights cases.

Earl Warren:

I thought you did.

Ralph S. Spritzer:

I think the power to implement it — I am not arguing the case upon the basis of any one category of cases, Your Honor.

Earl Warren:

You’re relying on the power and extent of the Court as in Green and Brown.

Ralph S. Spritzer:

Yes, I’m sorry, we’re —

Earl Warren:

Why shouldn’t you stick with them?

Ralph S. Spritzer:

I only meant to say, Your Honor, apparently I didn’t make myself clear, that I am not — my case does not depend upon and I am not seeking to single out civil rights cases from other cases involving the entry of injunctions.

I am certainly standing upon the decision of the Court in Green and in Barnett.

Potter Stewart:

I understood you to be saying, Mr. Spritzer, that whether or not the proceeding is under 42 (a) or 42 (b) or in a courtroom where there is a jury, the problem of the severity of the sentence is a separate problem which is not affected by the nature of that deter — of how the guilt of contempt is determined.

Ralph S. Spritzer:

I think the punishment is a set of —

Potter Stewart:

And that this Court or any reviewing court would have no more and no less after 42 (a) proceeding or 42 (b) proceeding or a jury proceeding to test the validity of the severity of the sentence.

Isn’t that what you’re saying?

Ralph S. Spritzer:

I’m merely —

Potter Stewart:

That’s quite a separate problem.

Ralph S. Spritzer:

I’m merely making two arguments, if I may say so.

The argument in favor of the practice which has always existed and I’m not arguing for a new rule.

I’m arguing only for the continuation of a rule from which this Court has never got departed.

My first argument is that the Court should not depart from its traditional holding that jury trials are not required as of right in contempt cases and I was saying that we attach particular importance to that principle because we think that the authority of the federal courts would be impaired in many situations if they could not take steps to implement their own decrees, but that’s conducting jury proceedings.

Byron R. White:

Well, Mr. Spritzer, do you think that includes — do you think that includes one-year sentences or two-year sentences or three-year sentences for contempt?

Do you think that kind of a sentence for disobeying a court order is essential for the administration of justice?

Ralph S. Spritzer:

I think the case in which one- and two- and three-year sentences are justified are perhaps very few.

I do have to —

Byron R. White:

How about this one?

Is that an issue —

Ralph S. Spritzer:

I don’t —

Byron R. White:

Is that an issue in this case, by the way?

Ralph S. Spritzer:

The petitioner does not — petitioner argued that —

Byron R. White:

Well, these are the cases where it has to be.

Ralph S. Spritzer:

Sure, your Court could look at the sentence and I don’t deny that it can.

And, I’m not particularly —

Byron R. White:

How about this case?

Ralph S. Spritzer:

Well, I think it is probably a fairly heavy sentence and I’m not particularly concerned if the Court would think that six months or nine months was a more appropriate sentence.

That’s not our concern here.

I do wish to say, however, that in considering the severity of the sentence, I think Your Honor should take into account that this judge did write into the sentence what amounted to a provision for perjury.

(Inaudible)

Ralph S. Spritzer:

That’s correct.

(Inaudible)

Ralph S. Spritzer:

Right.

Ralph S. Spritzer:

That the grand jury might expire.

As a matter of fact, this, in one way, may have been a lighter sentence than a civil contempt because if he had said “I’m going to put you in jail until you testify” and hadn’t granted bail, then the man would’ve been in jail during the course of the appeal which would have taken many months.

Instead, he granted bail and said, “If I’m wrong on the law, the Court of Appeals tells me I’m wrong on the law and that you didn’t have full immunity, you’ll be protected, you will not have served.

If I’m right on the law and you do have to testify, you can still testify and then come back and I will reduce the sentence.”

Ronald L. Goldfarb:

— did.

In this case, the antecedent conduct was, that one week before, he was asked the same questions before the same judge, the same grand jury, and he was upheld when he took the Fifth Amendment in his contention.

Potter Stewart:

Is there as request for a jury trial in this case?

Ronald L. Goldfarb:

A jury trial has to be waived.

It doesn’t have to be requested.

So far as I understand, there was a request specifically for a hearing and an opportunity to put in witnesses.

Potter Stewart:

But not any specific request for a jury trial?

Ronald L. Goldfarb:

In haec verba, in those words?

Potter Stewart:

Well, in any words.

Ronald L. Goldfarb:

Yes.

As I say, he asked for a hearing, for the chance to present his side of the case, for it to be open, he asked for all of the ingredients of what is either a full hearing or a right to trial by jury.

Secondly, I would like to say that the Solicitor — in response to the Solicitor’s c — suggestion that the counsel didn’t complain about the closeness of the proceeding, if the Court will just look at this, and it’s a very short record on page 32 and 33, half of the whole adjudication and sentencing is the counsel asking for an open proceeding.

He was turned down.

The Court says it’s open and he protested and said “but this is sealed.”

Then, finally, the Court made its adjudication.

I suggest if he had gone any further with this judge, he might have been held in contempt himself.

Thirdly, with respect to Mr. Justice — former Mr. Justice Goldberg’s dissent in the Barnett case, I would say that even if this Court finds that the history was not good, certainly, it was very wise arbitration and the presentation of a very just solution to an impasse that this Court has had to face for so many years.

It’s a very balanced and reasonable and wise compromise to the two extreme views that have been prevailing through the years.

Fourth, I would say that more so in contempt than in the case of any other crime could it be argued that there is truly a need for a trial by jury, the insulating aspect of a jury, more so in the case where the person who is the offended party and the victim is also the adjudicator.

More so, even in any other crime it could be argued is there a need for a trial by jury?

Finally, with regard to the question of the severity of the sentence which this Court — a number of the members of the Court raised or just point out that, in the 1964 statistics for crimes in the United States which I just checked with the statistician for the Administrative of the Federal Courts, of all the felony convictions in the United States last year where there were sentences, one — only 39% of those convictions did then received a sentence of a year or more so that this man, without a hearing, without a trial by jury, was up there with the worst convicted convicts of this country in terms of the severity of his sentence, that there can be any doubt that a year is severe.

Thank you.