In Re Mcconnell

PETITIONER:In Re Mcconnell
LOCATION:Herricks School District

DOCKET NO.: 498
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 370 US 230 (1962)
ARGUED: Apr 10, 1962
DECIDED: Jun 18, 1962

Facts of the case

Question

Audio Transcription for Oral Argument – April 10, 1962 in In Re Mcconnell

Earl Warren:

Number 498, in the matter of criminal contempt of Thomas C. McConnell, Petitioner.

Mr. McConnell.

Thomas C. Mcconnell:

Mr. Chief Justice Warren and may it please the Court.

I am appearing here in my own behalf, being the petitioner in the case, and the matter comes here on certiorari to review a decision of the Court of Appeals for the Seventh Circuit, which affirmed in part a conviction for criminal contempt against me under one of some seven specifications that was entered against my co-counsel and myself in a case that was tried before Judge Julius H. Miner in United States District Court in Chicago.

Two citations of contempt which were entered by Judge Miner against me were reversed as a matter of law by the Court of Appeals.

You know, as all — as I have already stated, four citations against Mr. Lee Freeman, who was my co-counsel, were also reversed totally because insufficient as a matter of law.

The part of the specification that was affirmed as against me is described by the Court of Appeals as follows.

I won’t attempt to characterize it.

I’ll read what they say.

As to Specification 6, we hold that with the exception of one statement attributed to respondent, nothing with which he is charged has been supported by proof of contemptuousness or disrespect.

The exception in Specification 6 to which we have just referred charges that respondent said, “We don’t have a right to read the answers but we have a right to ask the questions and we propose to do so unless some bailiff stops us.”

The majority opinion held that this constituted contempt and Judge Duffy who, former chief judge of the Court of Appeals in the Seventh Circuit, said that, in his opinion, it did not and that there was no obstruction to the administration of justice required by the statute, and that he would reverse as to that specification, as well as the other two, which the Court of Appeals had reversed.

Now, to understand the context and the background in which these remarks were made, and to understand the issue which is presented for review here in this Court, it is necessary for me to advert briefly to the case that was being tried.

I represented the plaintiff, the Parmelee Transportation Company in an antitrust suit which was brought against six railroads, four railroad presidents, and a man by the name of Hugh W. Cross who is former Chairman of the Interstate Commerce Commission.

And, it was alleged, and we sought to prove, that Mr. Cross, as Chairman, had importuned the presidents of these railroads to transfer the transfer of business that is carrying passengers between terminals in Chicago from the Parmelee Company which had enjoyed the business for some 102 years to a company to be formed by a Mr. Keeshin, and we alleged conspiracy in damages and our complaint was tested by a judge who is now dead, calling that it constituted, as a matter of law, a good complaint.

We spent three years taking depositions and spent thousands and thousands of dollars, and we got down to the trial of the case and Judge Miner called us all in and he said he had decided.

No motion was made to this at all, that he was going to try an issue which he designated as the issue of public injury.

We’d ask for a jury trial on all issues in the case and Judge Miner said, “We’re not going to try anything before this jury except the issue of whether the public has been injured in money damages by the shift of this transfer contract from the Parmelee Company to the Keeshin Company.”

I took the position before Judge Miner, citing this Court’s decisions in the Klor’s and Radovich case, that that was not an issue in an antitrust case.

It was only an attempt to hedge us in and keep us from trying our lawsuit.

And, my objections were overruled and that court said we will proceed to trial on the sole issue of public injury.

At that point, I offered to stipulate with opposing counsel as to offers of proof which I would make on the issue of conspiracy and monopoly.

I saw right away that we we’re not going to try anything of an antitrust nature in the case, but I want to get it out of the court up to the Court of Appeals as quickly and expeditiously as I could, and I offered in open court to make that stipulation and opposing counsel said, “No.

We will not stipulate.

The issue must be tried and must be tried before the jury as specified by Judge Miner.”

Although, they themselves took that the position that that was not a proper issue in the case.

In that situation, we attempted to make offers of proof and there’s a rule — better Rule of Civil Procedure 43 (c), a rule promulgated by this Court under the directions and the authority of the Congress, which provides how offers of proof can be made.

And, it provides that, in order to make an offer of proof — a proper offer of proof in a case before a jury, you must put a witness on the stand or at least if you’re reading a deposition, you must read the question that was asked to the witness.

And then, when the court rules, whether or not it’s a proper question, then you can read the answer if it’s a deposition or you can outside the presence of the jury, you can make your offer of proof.

Now, there was never any question in the case that that’s the proper way to proceed, at least otherwise, there was never any such question.

Thomas C. Mcconnell:

Judge Miner — first, we attempted to proceed in a different way to shorten the thing up and counsel said “we are not going to stood — sit here or sit by and permit for one moment any offers of proof which are not made in exact accordance with Rule 40 (c) of the Rules of Civil Procedure,” and we went along making Rule — making —

Earl Warren:

Is that — is that in the record?

Thomas C. Mcconnell:

Yes, that’s in the record.

Earl Warren:

What page?

Thomas C. Mcconnell:

Page 598 of the transcript of proceedings.

Mr. Thompson, he’s our chief counsel, “We are not going to wait until he finishes the offer.

We are not going to sit still for one moment and have an offer of proof made that is directed to a question be — pending before a witness who is not on the stand, who is on the stand because that’s exactly what the rule says, and we will undertake to try this according to the rule,” and he was referring to Rule 43 (c).

Alright, we went along for a while asking the questions, and the court from time to time made the observation that he was not going to hear or permit the jury to hear anything concerning Mr. Cross.

Mr. Cross was the defendant in the case and we’ve taken depositions of him.

And then, we got down to taking a depos — reading the deposition of Mr. Howard Simpson, who is President of the Baltimore and Ohio Railroad and Mr. Freeman, my co-counsel, was attempting to ask — read the questions which had been asked of Mr. Simpson on his deposition, and the court stopped him.

And, the court said, “We are not going to have anymore reading of these questions” and that was on the face of the objection of counsel that that was the only way it could be done, and Mr. Freeman said “I am in the uncomfortable position,” and I’m paraphrasing the words, “of having counsel telling me to have to do it according to form as prescribed by the rule and Your Honor telling me that I can’t proceed that way.”

And, at that stage of the proceeding, I was sitting there in the courtroom, not conducting this reading.

I entered the discussion and I told the judge that we had to ask the questions because that was the only way we could make our proof.

And, there was further colloquy and the judge finally indicated that he was not letting us proceed and I made the statements which I did in the heat of the situation in which we were involved.

And then, we had a recess.

And then, after the recess, we came back and decided.

We’ve done everything that a lawyer can do to make his record and we said that we would hear to the court’s ruling.

Now, there are two, or possibly three, fundamental and controlling considerations which are raised by this issue.

In the first place, we did not pursue those offers of proof so far as Mr. Cross’ participation in that conspiracy was concerned, at least not with that witness.

And, the deposition showed that there have been talks where Mr. Cross had importuned him to use his influence to bring these railroads together to exclude us here.

Well, we had the trial on the error of an issue, which signified nothing because there was no issue permitted to be tried.

We weren’t permitted to introduce any offer of conspiracy or any evidence of conspiracy or monopoly.

The jury found that there was no money damages under the instructions which were given.

It was practically a directed verdict, and then we came to the end of the trial and the court said, “I’m going to write an opinion and I’m going to hold that there isn’t — this doesn’t fall within the family of antitrust that the complaint doesn’t state a cause of action.”

And then he went on and said this, “The offers of proof upon which the plaintiff — the proofs upon which the plaintiffs apparently were going to rely, the allegations of Cross’ intervention in this situation are not supported by the offers of proof.”

And, the reason I most respectfully submit to this Court that they weren’t supported by the offers of proof.

If they weren’t, I don’t think that’s a correct statement, I think they were, but assuming arguendo that they were not, we couldn’t make them and we couldn’t make them in compliance with the rule because we were precluded.

Further, when we got up in the Court of Appeals on the appeal in the Parmelee case, the Court of Appeals passed by the fact, Judge Duffy mentioned it in his dissent, the fact that we’d had no trial on any issue that was relevant to an antitrust case.

And, as a make way, the court below had dismissed the complaint after another judge had held it was valid and then made his remarks about the offers of proof, but the upper court said that its analysis of the offers of proof led it to believe that this didn’t constitute a valid antitrust case, even though this case had held — this Court had held in the in the other cases, a conspiracy affecting this very branch of commerce violated the antitrust law.

So, the case was dismissed.

Thomas C. Mcconnell:

Now, the point I’m making and leading up to is counsel who has exceeded and who has met the requirements of a judge to stop, his client is utterly prejudiced in appeal.

His record is not complete and will be faced with a situation which was referred to by Mr. — the late Mr. Justice Rutledge in the Mineworkers case where he said, “If you reach a situation where obedience means the loss of the rights — the substantive rights, compliance means the loss of a substantive right, you’re in a situation where no court should declare that criminal.”

Now, we are relying here, I am relying here, upon the limitations, upon the inherent power of a court to punish for contempt which are contained in U.S. Code Section 401, Sections 1 and 3.

This Court has held that, in a number of cases, that that is the congressional limitation upon the power of the Federal District Courts to punish for contempt, and they’ve also held — this Court has also held that there must be shown two things.

No, I regard that statement.

This Court has held in the Hudgings case that there must be shown an obstruction to justice as a condition preceding to a proper exercise of the power of contempt.

Section 3 of that statute provides that it must be shown that there is disobedience to a lawful order to constitute contempt punishable by a court.

Now, my first position is that Judge Miner’s order or direction abrogated Rule 43 (c), promulgated by this Court under the directions of the Congress, was not a lawful order and, while I didn’t disobey it, still it posed a situation where I was entitled to go as far as I could go to show an unequivocal refusal by the court to let me proceed in accordance with the rule.

As I say, after the recess, we told the Court we would ask no further questions regarding the incident or regarding the depositions.

Now, is it a lawful order that abrogates a rule of court promulgated by the Congress — promulgated by this Court under the authority of the Congress?

And, I find no case and the Government cites no case which holds that that is a lawful order.

Certainly, it’s a case of first impression here.

This Court has never held that the abrogation of a rule which is reenact of Congress and which the lower courts, the courts of appeal has said is binding upon the court, is binding upon the litigant, is binding upon the lawyers.

The abrogation of such a rule is a lawful order.

Now, Judge Miner, himself, later in this case — can you get the conjunction statement he made?

He said, and I’m reading from page 935 of the record.

Earl Warren:

What volume is that in?

Thomas C. Mcconnell:

It’s volume 3.

Where the court, later, was addressing my opposing counsel, the late Judge Thompson, the court, “I am saying most respectfully, only in this sense, Judge Thompson, and believe me it is respectful, I don’t know what you are to stipulate or what you decline to stipulate except for one thing that I do know.

That, in the absence of a stipulation, the cases, as I read them, require the presenting of a witness, ask him some questions and, when I declined to let him answer, then they can proceed with the offer of proof.

By Mr. Thompson, “There isn’t any question about that.

All of us agreed with that.”

Now, that was the very thing I was trying to do, and the very thing that I was prevented from doing to the obvious prejudice of my client in the review of the case.

We’ve got no trial.

We tried no antitrust issue.

We never were allowed a trial anywhere along the line.

Potter Stewart:

How far does your theory go in this respect?

Let me ask you this, for example, let’s assume you’re interrogating a witness, one of your witnesses, one of your — the key witnesses in your case and you proceeded to ask him some questions in the — on objection, the court said that’s entirely an inadmissible line of inquiry and you — it was clear to you and everybody else in the courtroom that the — that the judge was entirely wrong as a matter of the law of evidence, but you — let’s assume that you persisted and pursued the matter and said that you intended to do so unless bailiff stops you.

Would that be a — would you be in —

Thomas C. Mcconnell:

Yes.

Potter Stewart:

— exactly in the same situation?

Thomas C. Mcconnell:

I don’t — I don’t think I have any right to do that.

Potter Stewart:

Well, we’re assuming that the — that the judge’s order was entirely unlawful, that it – that it was entirely contrary to the law of evidence.

Thomas C. Mcconnell:

If it was assumed that it was unlawful, yes.

Potter Stewart:

That was the assumption of my question.

Thomas C. Mcconnell:

But, I don’t think that court sort of an order would be unlawful under the rule because, there, I have the record and chance to make the record.

He says I can’t ask the question.

That’s what I called — told Judge Miner.

I said you have a right to sustain an objection to the question.

I told —

Potter Stewart:

I still don’t understand the answer to my question.

I don’t understand, really, your theory as to what lawful or unlawful order is.

It’s your point that if the judge is erroneous as a matter of law in the order that he gives, that you are free to not only disregard it but to disregard it contemptuously?

Thomas C. Mcconnell:

Not at all.

Potter Stewart:

Well, what is -– what is your point?

Thomas C. Mcconnell:

My theory is that, if the order which he enters is not just an erroneous order, not just an erroneous ruling on the question of evidence —

Potter Stewart:

What, very erroneous?

Thomas C. Mcconnell:

No, not very — not a degree of erroneousness, but where a rule is promulgated, where he is supposedly bound by that rule himself and he sets that rule aside over the objection of all counsel, of counsel on the other side, where I can’t make a record because the rule says how I can make the offer.

I say, in that situation, there’s nothing for me to do except to stand and go as far as I can go to make a record.

In this case, I didn’t make a record.

Potter Stewart:

How does that differ?

How does that differ from my case?

Thomas C. Mcconnell:

Well, it differs from your case because —

Potter Stewart:

Let’s assume your whole case collapses without the testimony of this witness, in my hypothetical case.

Thomas C. Mcconnell:

Well, in your hypothetical case, I could still make the record on review because if I’m refused — if I am erroneously refused the opportunity of asking a question, I can assign error on that and I — but how can I assign error on an offer of proof which wasn’t made and the upper court says, it isn’t in the record so it doesn’t consider.

One is a situation where the court is dealing erroneously with the situation.

Another is where he is dealing with it in a way where he ignores the rule which is supposed to be binding on him as a public counsel.

Potter Stewart:

Well, all rules of law are supposed to be binding on the court as well as counsel.

Thomas C. Mcconnell:

I know but they are — they give room for difference of — or there can be an error of it, one way another, but where it cuts down — cuts away the very fundamental rules of your rights in the court.

Now, let me put this to Your Honor.

Thomas C. Mcconnell:

The majority opinion says here that I had a right, and I’m not saying this in any argumentative way, I’m just saying what the court says, that I had a right to be in that court and ask questions and make offers of proof.

And they didn’t say it, but the inference was clear that it was part of the machinery of trying lawsuits for the machinery of justice, and that I had a right to make an offer of proof.

They say that without any equivocation whatever.

Now, if I had a right to make an offer of proof, I most respectfully submit to this Court that I had a right to make it in a way that made sense on appeal, and I had a right to make it in a way which corresponded with the rules of this Court.

And, in correspondence, in a sense, where the statute is laid down by the Congress because the Congress told this Court, through a commission, to write these rules, which was done.

Now, if I had a right to appear there, if I had a right to make an offer of proof, the question I submit to this Court is why didn’t I have a right to make it in accordance with the rules of this Court?

Now, it can be made to appear here that my action was antagonistic to the court as such, it was not.

I was trying, in the only way that I knew, in the heat of a highly contested trial involving millions of dollars to make a record.

I knew I wasn’t going anywhere in the trial.

My only chance was to make a record in the appeal and I was being thwarted, as Judge Duffy says at every turn, and every time I try to make an offer of proof and the judge would change his opinion and change his ruling, and that was the situation.

Now, further than that, of course the question, whether I was trying to deal with it in good faith, trying to represent a client and nothing more, that goes to the question of whether or not that’s what I was trying to do, and that’s one of the six questions that, I submit, shouldn’t have been determined by Judge Miner.

It should have been determined by somebody else.

If he wasn’t intimately involved, we had seven specifications of contempt here, six of them knocked out as a matter of law.

And, further, the whole basis of that thing, as this Court said in the Radiant Burners case, was an absolutely irrelevant issue.

It had nothing whatever to do with an antitrust suit.

Now, the next question was whether or not there was any obstruction to the administration of justice and the Government seems to say — well, the Government seems to say two things in their brief.

First, that any opposition to a court’s order is per se contemptuous.

Well, I realize that courts had to be wrong and I realize that the judges have to run them, but I most humbly submit that the public and litigants have very fundamental rights in having counsel who are independent enough and have enough latitude to properly present their cases.

Certainly, they ought to have enough latitude so that they can present a case in accordance with rules promulgated by this very Court.

And, if that’s contemptuous, I guess it’s contemptuous.

I don’t know anything else to say about it, except that I was trying the best I could in a very difficult situation to assert some rights and I didn’t succeed very well.

Judge Duffy saw the point.

He saw there was no obstruction to justice.

The Government here says that anything that shows a conflict between a counsel and a court would tend to bring disrespect to the court.

On the contrary, I think the lay public has more respect for a judicial process which gives latitude to a trial counsel to properly represent a client’s right than it does to us observing, lawyer-counsel, or a bar.

And, that’s what’s really involved here.

The question of my client of a hundred dollars means this trivia with the question of latitude to trial counsel in important litigations such as this where he’s not permitted to try anything, something that I think, serve —

William J. Brennan, Jr.:

May I ask you Mr. McConnell, under —

Thomas C. Mcconnell:

— contention of this Court.

William J. Brennan, Jr.:

I gather, you’re a member of the Illinois Bar, is that it?

Thomas C. Mcconnell:

Yes, Your Honor.

Potter Stewart:

Is —

Thomas C. Mcconnell:

It’s been a member for 37 years.

William J. Brennan, Jr.:

May this conviction be the predicate of any disciplinary proceedings in the Illinois Bar?

Thomas C. Mcconnell:

I can’t answer that.

It might.

It might have serious consequences.

I don’t think so, but it might.

I’ve been a member in good standing there and nobody there ever accused me of anything so far as I know, for many, many years.

Earl Warren:

Mr. McConnell, do I understand that after — after this colloquy that you’re taught — you’ve talked about and after you — you were prevented from asking these questions, that the judge later reversed himself and did allow some of these questions that need to be answered?

Thomas C. Mcconnell:

He did — he did and Judge Duffy refers to that and says that “my objection bore fruit,” that it did result in such, but I never got back to these questions.

I never went back to those.

I never got into the record to think that I was trying to offer and which the upper court assumes quite essential to my case.

The participation of this man, Cross, a high government official, and importuning these railroads to take business from one person and take it to another, never a chance to try that issue.

Potter Stewart:

What did that have to do with the issue which had been segregated, the issue of public trial?

Thomas C. Mcconnell:

It had absolutely nothing to do with that issue, Your Honor, but I took the position that that irrelevant issue prevented me from introducing the evidence of conspiracy and monopoly which I had alleged and sought to prove, and the only way I could make a record for review up above was to show that I had the evidence of conspiracy and monopoly which, if I had been permitted to show it, it would have resulted in a prima facie case for the plaintiff.

Potter Stewart:

Well, I thought under the trial judge’s theory which you say was erroneous, that the issue of public damage was to be segregate and tried first and that the — all the conspiracy issues were to be tried later.

Thomas C. Mcconnell:

Well, we couldn’t try any conspiracy issue unless we won the irrelevant issues.

That was a condition that precedes to trying any other issue in an antitrust case, and I don’t just say that it’s erroneous.

This Court says —

Potter Stewart:

I understand.

Thomas C. Mcconnell:

It’s erroneous in the Radiant Burners case —

Potter Stewart:

I understand.

Thomas C. Mcconnell:

— and said it’s specific, and the per curiae —

Potter Stewart:

And what you’re trying to get in didn’t have anything to do with the — with the issue which he had said to —

Thomas C. Mcconnell:

Not a thing to do with that issue.

Potter Stewart:

— to try it separately.

Thomas C. Mcconnell:

I said that was irrelevant.

I didn’t see that had anything to do with the case.

I was willing to stipulate that he could do anything he wanted to with it, direct a verdict on it.

Thomas C. Mcconnell:

I wanted to get up to the upper court —

Potter Stewart:

I see.

Thomas C. Mcconnell:

— on that issue.

Potter Stewart:

I understand.

Thomas C. Mcconnell:

That’s what I was trying to do.

Alright, so we get down to the question of obstruction of justice and Justice Duffy — or Judge Duffy said that he could see no obstruction to justice.

And, under this statute, Judge — under this statute, it’s a limitation if it’s anything and we’re left in this situation doing that, if any order — if any order that a judge enters from the trial of a case or otherwise is lawful per se, and it’s just lawful, why, of course this limitation in the statute that must be lawful has no meaning whatever because there’s no objective standard at all to measure the judge’s order.

It’s just lawful if he enters it, and that’s that and that’s the end of it.

Now, the second limitation was that no obstruction of justice and the majority court found, in dealing with this Specification 6, that the court made no finding of obstruction to justice.

Judge Miner did.

And, they said “we don’t base our decision on that,” but we conclude from that that if there was no such finding, then the record doesn’t support any such finding, and they made that observation with reference to this Specification 6.

Now, there’s one further point and then I’m through.

In this situation, Judge Miner stated that he regards this as a direct attack upon himself and he also stated that there was no emergency about it.

I had business in London and I had to go to Europe to attend to it, and I told him that.

He said there’s no emergency about it, put it over, and we put it over until June or sometime ago.

Then, he went over into a fault.

There was no emergency.

There was nothing.

The case went on, the trial went on, the record was made, but Judge Miner apparently indicated that he thought this was my direct attack upon himself, which it wasn’t.

And, if there was an issue of fact involved in that, I submit most humbly to this Court that the bar should have some of the rights of the Bill of Rights, that is, they’re dealt with summarily here.

And, whether or not they’re acting in good faith as lawyers, as members of the bar, whether or not they’re trying to protect client’s rights in the only way they know how to do, whether or not they might make some error inadvertently or because they don’t know anything else to do, as it might be the call of the situation here, that is a question which goes to intent and, it seems to me, I was entitled to have some independent judge who wasn’t involved in the controversy here.

That was refused and the judge who heard it on seven specifications, only part of one was sustained.

Now, that itself is significant.

I submit that this should be reversed, not for my benefit particularly but for the bar.

Earl Warren:

Mr. Monahan.

Philip R. Monahan:

Mr. Chief Justice, and may it please the Court.

As it’s true in so many cases, the issue here turns very largely on the facts.

I would like — I would like now to point out that contrary to the position that has been taken by my opponent, there was no interference with the right of the plaintiff in the civil antitrust suit to make any offer of proof he chose to, and I think that the best witness of that is Mr. McConnell himself, as I shall now point out.

In volume 3, page 1035 of the record, in about the middle of the page, Mr. McConnell is speaking and he says “I am trying to make a record here.

We can’t help it, but sometimes there comes, in the lives of lawyers and judges, conflicts where there are issues raised where one side is trying to make a record, and that is what we are trying to do here.

Philip R. Monahan:

That is what we are trying to do.”

By the court, “May I ask one question?”

By Mr. McConnell, “Yes.”

By the court, “Have I stopped you from making your record?”

By Mr. McConnell, “No.”

By the court, “Haven’t I sustained you all the way to make the record?”

By Mr. McConnell, “You are letting us make the record.”

By the court, “Absolutely.”

And then, in the proceedings on the contempt itself, on volume 5 of the record, this is the thin volume.

On page 36, the court said in the middle of the page, “From the words that you have used and the statements that are shown in the record, there isn’t any question but you — but that you have exceeded every reasonable limitation in the trial of the case.

But, I still certainly have no malice in my heart.

I never did in my life.

I’ve been on the bench 23 years and I’ve never done this before.

There is one thing one must do, protect the record.

Over the objections of the defense counsel, I think that all the way down the line, I have let you make your record completely.

There’s not a scintilla of evidence, not a statement that will indicate that you have been curtailed in any way in making your offer of proof.

Isn’t that right?”

Mr. Thomas McConnell, “Well, we have made our offers of proof.”

The court, “Completely.”

Now, with that as a purpose, I would like to review or re-review very briefly the circumstances that led up to the allegedly contemptuous statement in order to show that there can be no doubt that Judge Miner had made a categorical and definitive ruling preventing the counsel for the plaintiff in the civil suit from proceeding in the manner in which they had been proceeding, namely by reading from the deposition of Mr. Simpson, questions bearing upon the so-called conspiracy involving — with Mr. Cross at the center.

Now, in the pages immediately pre — in volume 2 of the record at page 731, in the pages immediately preceding this, this process had been going on for page after page.

Mr. Freeman would read a question in the deposition of Mr. Simpson bearing upon this issue which Judge Miner had ruled, whether rightly or wrongly is certainly immaterial for this case, was not an issue before the jury.

And, the court said it is becoming obvious that the repetition of question after question about the matter on which the court has ruled is not competent and proper as distinguished from an offer of proof.

It ought not to be hammered and repeated before the jury time and time again, and I would appreciate it very much if you would make your offer — if you would make your offer of proof in all the conversations, if any, and Mr. Freeman, interrupting, said “excuse me, I have only this problem, as Mr. McConnell has well stated it.

The statute controlling in this regard is Section — Rule 43 (b).”

I might interpolate it at this point to say that the reference there should have been Rule 43 (c) of the Federal Rules of Civil Procedure by the court.

That is where I got this from.

By Mr. Freeman, “It requires that we do present a witness and we do go thru this deposition, although we do it in person, and we ask the question which may be objected to and it is sustained, and then we offer to prove what the witness would say pursuant to that question.”

Then, skipping the next couple of paragraphs just for brevity, Mr. Freeman resumes “we find ourselves in an uncomfortable position of both being accused of bad form,” he means being accused by defense counsel, “in making the offer of proof and being accused of bad form when we ask the question.

I think we have to try to protect our record by asking the question.”

Philip R. Monahan:

Now, I might explain at this point that that statement is correct, but the defense counsel had been objecting — the defense counsel did not want an offer of proof to be made even generally.

That as a part from there being a witness on the stand, and they did not want the questions to be asked of the witness on the stand or questions and answers read in the case of a deposition.

So, that is perfectly correct what Mr. Freeman said there.

But, now, here is the crucial part.

By the court, “I will not object and I will permit your form of offer of proof in the absence of the jury by overruling their objections to the form.”

The court is now saying he’s going to overrule defense counsel’s objections to the form of the offer of proof that Mr. McConnell and Mr. Freeman had originally wanted, in other words, the general offer of proof.

The court, continuing, said “you have had the witness on the stand or you have had these depositions or you have these depositions, and you have identified the witness and you have asked questions about conversations and about issues not before this jury.

The same ruling prevails on all of the same questions and if you ask him a million times, it will be the same ruling and it becomes obvious to the jury and to the court that you are merely repeating something that the court had ruled on.”

By Mr. McConnell “Their objection is right,” referring to the defense counsel.

“They have made a sound objection to proceeding without the witness or without the deposition, and we have to make a record and your rulings are going to be reviewed.”

By the court, “Alright, but the witness has been on the stand and depositions are being read.”

By Mr. McConnell, “Now, you are trying to tell us we can’t ask these questions.

We have a right to ask these questions and, until we are stopped from asking these questions, we are going to ask them because it is our prerogative in doing it.”

By the court, “I am now stopping you from asking the questions about conversations with Mr.Cross because I have ruled specifically, definitely, and completely that it is not an issue in this case.”

By Mr. McConnell, “We have a right to ask them.”

By the court, “You can offer proof on it.”

By Mr. McConnell, “We have a right to ask questions which we offer on this issue and Your Honor can sustain their objections to them.

We don’t have a right to read the answers, but we a right to ask questions and we propose to do so unless some bailiff stops us.”

That was the allegedly contemptuous statement.

I’d like to go on just a little bit more because of what follows is pertinent to the position taken by Judge Duffy in his defense below.

The court said “Well, I will stop you now and I don’t appreciate threats.

That is the law and my judgment and I can rule upon — and I can only rule upon as I see it, and I forbid you from asking, repeating the same questions over and over again, upon which I have ruled specifically 100 times that it’s not admissible and is improper under this issue.”

And then, there was a pre-colloquy between Mr. Freeman and the court in which Mr. Freeman elicited from the court the assurance that this ruling applied only as of this particular deponent, Mr. Simpson, under these particular circumstances.

For example, at the bottom of page733, the court says “This does not bar you from making an offer of proof in the absence of the jury.”

By Mr. Freeman, “I assume you are merely barring me from asking questions that have to do with Cross and Simpson.”

By the court, “The same repetitious questions, over and over again, I am not barring you from making the offer.

You will make all the offer you want, but not in the presence of the jury because the issue before them is limited.”

And then, in the middle of the page, the court says — Mr. Freeman says “We think conspiracy and the fact that the public service of Cross was destroyed by this is part of the public injury.”

By the court, “That is what you think and make your offer a proof, but not in the presence of the jury — of this jury,” and then Mr. Freeman asked for a 10-minute recess, which was granted.

And, after the jury had departed but before the attorneys and the court broke up, the court said to Mr. McConnell, “Mr. McConnell, we are not plain to the galleries here.

Philip R. Monahan:

I am ruling upon rules of evidence and I see them,” and these are not evidence.

By Mr. McConnell, “I am not plain to any galleries.”

By the court, “I am not going to have any more of it.”

By Mr. McConnell, “I am trying to try a law suit.

I am being prevented from trying it at every stage of it.”

By the court, “It doesn’t call for insults or abuse.”

By Mr. McConnell, “I am not making any insults.”

By the court, “You certainly do when you say you have to be dragged out by a sheriff in stopping you from making the proof.

I will stop it.”

By Mr. McConnell, “There comes a time when a lawyer has to stand up and state his client’s case.”

By the court, “and, as a gentleman in the bounds of the law.”

By Mr. McConnell, “We have a right to ask these questions.”

By the court, “You have a right to your say, but I have ruled against it and you may make your record.”

Mr — by Mr. McConnell, “We can’t make the record without asking the questions.

That is the point.”

By the court — the court then asked Mr. Freeman whether he has anything to say.

Mr. Freeman says no and then, after the recess, Mr. Freeman, on page — this is on page 736 in the middle of the page, Mr. Freeman tells the court “In view of Your Honor’s ruling, I will not continue the reading of the deposition of Mr. Simpson, but I will seek to cover it in an offer of proof outside the presence of the jury,” and an offer of proof was made later in the trial outside the presence of the jury as — not only as to Mr. Simpson but as to all the witnesses, in respect of whom, similar rulings were made.

And, if the Court would turn to page — by in free — page 985, is the place where these offers of proof are begun and it continues for 40 or 50 pages.

And, on page 994 is the place where the offer of proof with regard to Mr. Simpson is made and that continues for about four or five pages without any limitation whatever.

The judge permitted counsel to make any offer of proof he chose to.

Now, it is true that Judge Miner, in his memorandum opinion in the civil case, later referred to the fact that offers of proof which had been made by the plaintiff in the civil case were inadequate on a certain point, but the inadequacy was not in any limitation by the court on making the offer of proof but in the failure to — in the failure of counsel to make some point in their offer of proof.

Earl Warren:

Mr. Monahan, was this — was this colloquy outside of the — the presence of the jury, that you’ve been reading, or was it in the presence of the jury?

Philip R. Monahan:

Up to the point, beginning with that — with remarks about plain to the galleries, do you recall that?

Earl Warren:

Yes.

Philip R. Monahan:

Up to that, it was in the presence of jury.

Earl Warren:

I see.

Philip R. Monahan:

And, those remarks, beginning at that point, was in a recess which had been declared where the jury had departed, but where the attorneys were still present.

Earl Warren:

Yes.

Philip R. Monahan:

Now, Judge Duffy, in his dissent, says he agrees that the statement, the allegedly contemptuous statement, was offensive and he said Mr. McConnell certainly should have apologized to the court after the recess but if — but, he said no contempt occurred because there was no obstruction of justice.

And, why was there no obstruction of justice?

Philip R. Monahan:

Because the petitioner did not make good his threat.

He did — he did not wait for a bailiff to come and remove him from the court, but finally exceeded to the ruling.

Now, I submit to the Court that the obstruction of the administration of justice is not limited solely to some spectacular happening in the court, such as happened in Ex parte Terry where one of the attorneys physically assaulted a court official and had to be escorted from the court.

There can be obstruction of the administration of justice in an insolent remark to a court, an expression of defiance, or any form — really, any form of disrespect and, so far as I know, that proposition has never been questioned.

And, in any event, even if it were necessary to find some physical or overt obstruction here, certainly, it can be found in fact that Judge Miner had to take time from the trial of the case to administer the review.

Now, on the question of whether or not the summary procedure was proper, as distinguish from proceeding by notice and hearing under Rule 42 (b), it is the Government’s position quite simply that this case is controlled by the Sacher case.

Now, the petitioner reads the Offutt case, which was decided after the Sacher, as somehow impairing the questioning eluding the authority of the Sacher case.

We do not so-read the Offutt decision.

We read the Offutt decision as laying down a special qualification, namely, that where a trial judge has become so personally and emotionally embroiled in the conduct of the accused that he is unable to bring to the task of vindicating the authority of the court, a sufficient degree of judicial detachment to enable him to perform that function in a judicial manner that he should ask the Chief Judge of the court to assign the hearing of the alleged contempt to another judge, but that is not this case.

Judge Miner throughout the two weeks of this very vigorously and, at times, bitterly contested trial, demeaned himself with decorum and judicial dignity at all times and, for that reason, it seems to the Government that this case just does not come within the special rule of the Offutt case at all, but falls within the general principle of the Sacher case, namely, that a judge may, without losing his power to proceed summarily, defer the issuance of the certificate of contempt and the imposition of judgment until a time which, in his discretion and in his judgment, will not unduly interfere with the progress of the trial.

In the course of which, the contempt occurs, and that is precisely what hap —

John M. Harlan II:

This is a — this is a case in New York where the procedure could have been under 42 (a)?

Philip R. Monahan:

It was under 42 (a), sir.

It was, under 42 (a), a summary procedure by the — the only thing was —

John M. Harlan II:

Deferred some issues of the procedure.

Philip R. Monahan:

Pardon me, sir?

John M. Harlan II:

Deferred some issues.

Philip R. Monahan:

Yes, just as in Sacher, that’s exactly what happened in Sacher, sir.

So —

Earl Warren:

There was — there was no hearing on — no hearing on this at the time he was sentenced to — before the sentence.

Philip R. Monahan:

That is correct, sir.

The judge applied the rule which was applied in Ex parte Terry, namely, that the judicial eye perceived the conduct, the judicial mind grasped all the circumstances of provocation, and the — there was nothing left but for the judicial arm to impose the penalty.

Hugo L. Black:

What was the court obstruction?

Philip R. Monahan:

The obstruction to the court basically, Mr. Justice Black, was the defiance of the authority of the court in the presence of the jury thereby demeaning the authority of the court publicly.

It seems to me that under the decisions, as I read them, that it has never been required that there’d be any further obstruction of justice than flows from that — those circumstances in themselves.

Hugo L. Black:

What case moves that now?

What laid the case over?

Philip R. Monahan:

Well, now, for — for example, if Your Honor —

Hugo L. Black:

That does not have to be an actual obstruction of justice.

Philip R. Monahan:

For example, if Your Honor will recall in McGuinness against United States which was here several years ago on petition for certiorari —

Hugo L. Black:

Which one?

Philip R. Monahan:

McGuinness, where the alleged contempt was the defense counsel saying to the court in the presence of the jury, after the judge had asked a question — a certain question of a defense witness that the defense thought was objectionable, defense counsel said “Your Honor ought to be ashamed of himself for asking such a question and should cite himself for contempt for doing so.”

Now, the Ninth Circuit held that that was contemptuous hearsay on its face.

It did not have to try to measure any degree of obstruction of justice other than the demeaning of the authority of —

Hugo L. Black:

Then you rest your case only on the fact that what he said was of such nature that it would demean the judge.

Philip R. Monahan:

Not entirely, if it were necessary.

I don’t — I do not think that would be necessary, Mr. Justice Black, but if it were necessary defying some overt, some physical obstruction, I think that it happened here, in fact, the judge had to interrupt the trial in order to administer the rebut, which he did, in this case.

Hugo L. Black:

Well, if it was the demeaning of the judge, what do you think about the cases that indicate that a man who has a personal interest, by reason of having been abused, thinking his reputation has ended, that he should not try the case?

Philip R. Monahan:

Well, I think that that is an arguable position, Mr. Justice Black, but I think that has been foreclosed by the Sacher decision because, certainly, Judge Medina was baited and insulted in that case far more than happened in this case and at much greater length, but this Court held that Judge Medina had the power to act summarily at the end of the trial.

Hugo L. Black:

What about the latest case?

Philip R. Monahan:

Do you have any in particular mind, sir?

Hugo L. Black:

What about the case you said didn’t cover, Offutt?

Philip R. Monahan:

Offutt.

In that — in that — we read that case as being a very special situation where the judge practically, from the beginning of the trial, was embroiled in, well, either the court or one of the opinions, I think, yes, it was the opinion of the court that said it was an intermittently continuous wrangling.

Hugo L. Black:

How long did this wrangling go on?

Philip R. Monahan:

I would say that if, by wrangling, you mean something of the nature of what happened in the Offutt case, sir.

Hugo L. Black:

I mean by what happened here.

Philip R. Monahan:

It did not go on at all.

There was — there was no instance of that.

Hugo L. Black:

Do you think no wrangling?

Philip R. Monahan:

No.

I think not — I think, sir, that what happened even in this incident involved in this specification of contempt that Judge Miner did not engage in any wrangling with defense — with plaintiff’s counsel, but he handled it very judiciously and very ably and in a judicial manner.

Hugo L. Black:

Do you think the defendant wrangled?

Philip R. Monahan:

Do I think that the —

Hugo L. Black:

Do you think the other side wrangled in as a lawyer?

You say —

Philip R. Monahan:

Well —

Hugo L. Black:

— there was no wrangling.

Philip R. Monahan:

I think that the petitioner made statements which the trial judge and the Court of Appeals unanimously, with reason, found overstepped the bounds of propriety and were contemptuous.

Now, wrangling, to me, connotes that it has to be two parties to it.

Philip R. Monahan:

So, for that reason, I don’t think there was any wrangling in this case.

For the reasons which I have — which I have stated, we think that the Court should adhere to its Sacher decision and affirm the judgment of the Court of Appeals in this case.

Thank you, sir.