In re Sawyer – Oral Argument – May 20, 1959

Media for In re Sawyer

Audio Transcription for Oral Argument – May 19, 1959 in In re Sawyer

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Earl Warren:

Number 326, in the Matter of Disciplinary Proceedings against Harriet Bouslog Sawyer.

Mr. Barlow, you may continue your argument.

A. William Barlow:

Mr. Chief Justice, may it please the Court.

Perhaps some of the Court may be wondering why a speech that was made in 1952 is before the Court in 1959.

I may be facetious, yet, I am sincere when I say that the reason for the long delay is the fact that the petitioner has been accorded due process all the way along the line.

In 1952, December 14, she made this talk at Honokaa on the Island of Hawaii.

The case in which she was engaged as counsel terminated sometime in June of 1953.

Subsequent to the termination of the trial, Federal Judge John Wiig, who presided at the trial, referred the behavior of the petitioner to the Bar Association.

The matter was then referred to the Ethics Committee in July of 1954.

In September of 1954, the petitioner requested a bill of particulars, which, were supplied to her.

In November of 1954, the Ethics Committee conducted a full-scale hearing.

At which time, the petitioner was represented by a very able counsel and at which time, she had the opportunity of presenting on her behalf any and all witnesses that she thought were people who could testify to what she had said at the time of the incident related to in the complaint.

The hearing consumed 468 pages and ended on December the 8th, 1954.

The Ethics Committee Report which found Mrs. Bouslog guilty of impugning the integrity of the Court, of interfering with the administration of justice, and creating disrespect for the courts on the first complaint, and on the second complaint, with conducting a studied interrogation of a sick juror immediately after the trial in violation of Canon 23, the American Bar Association Opinion 109, and the rulings in the Rakes and Millie cases.

Subsequent to that report by the Bar Association Ethics Committee, the Supreme Court issued an order to show cause.

That order was issued July 8th, 1955.

The petitioner was granted an extension of time to September of 1955, within which, to file an answer.

Instead of the return of the order to show cause, she filed a motion to dismiss the order to show cause on October 19, 1955.

More time for filing petitioner’s return to the order to show cause was requested and petitioner was granted to December.

And finally, the argument was set for January of 1956.

On January 7th, 1955, petitioner filed a motion for reconsideration of the order, denying the motion to dismiss the order to show cause.

This motion was extensively argued and denied by order filed November 29, 1955.

A return to the order to show cause was finally filed by the petitioner on December 2, 1955.

Another motion for continuance by petitioner followed, and another hearing was held.On a date set for trial, which was January 9, 1956, a pretrial conference was held with counsel for the Bar Association, counsel for the Attorney General and counsel for the petitioner being present.

Two days later, another delay was occasioned by the petitioner filing a suggestion of disqualification of Associate Justices Stainback and Rice of the Supreme Court.

Extensive argument on this motion was again held by the Territorial Supreme Court.

The Territorial Supreme Court, incidentally, held that neither Justice was disqualified.

However, Justice Stainback withdrew on his own motion.

At the pretrial conference, it was determined that under Rule 19, the petitioner could avail herself of a trial de novo.

However, the petitioner, through her counsel, and counsel for the Bar Association, and the Attorney General, and the Court stipulated that instead of a trial de novo, the matter would proceed upon a record submitted before the Committee.

A. William Barlow:

The opinion of the Court was filed April 6, 1956.

The Court found that the complaint was sustained by convincing proof, by credible evidence of more than a mere preponderance.

The Court found that the charges under both complaints were proven and found that the petitioner was guilty of gross misconduct on both counts.

The petitioner then appealed to the Ninth Circuit Court of Appeals under Section 1293, alleging that there was a constitutional question involved and also alleging that her right to practice law had a money tag or a value attached to it that by virtue of the fact that she was suspended for one year, the matter in controversy or the value in controversy was the amount of money that she had earned in previous years.

The Bar Association took the position that this was a simple matter of discipline involving the Canons of Ethics, that there was no First Amendment constitutional question involved.

The Bar Association took the position that insofar as the license to practice law was concerned, it was priceless and you could not attach a price tag to it.

The petitioner filed her affidavit, stating that she made an excess of $5000 and the Court, on the first hearing, granted her a stay pending the determination of the case on its merits.

Two Justices Justice concurring, and Justice Lemmon wrote a dissenting opinion in which he indicated that as far as he was concerned, that it was a very simple disciplinary matter.

There was no constitutional question involved and that insofar as he was concerned, you could not attach a price tag to the practice of law.

Potter Stewart:

In that connection, Mr. Barlow —

A. William Barlow:

Yes, sir?

Potter Stewart:

It seems to be that petitioners — it seems to have been and continue to be the petitioner’s position throughout these proceedings that how the penalty imposed was purportedly a suspension of practice for one year, in actual practical effect, it was disbarment.

What do you have to say about the matter?

I don’t want to interrupt your presentation, but I was —

A. William Barlow:

Well —

Potter Stewart:

— need to know.

A. William Barlow:

— the only thing I can say about that Mr. Justice Stewart, is that under our rules that if you are suspended for a period in excess of six months, that you then have to take a written examination and you again have to pass a character test.

We, in the Territory of Hawaii, at the present time, have no reciprocity with any other state insofar as admission by a motion is concerned.

When I went there, 13, 14 years ago, I had to take a bar examination that lasted five days.

I had to pass a character test.

So —

Potter Stewart:

And somebody suspended for more than six months has to do the same.

A. William Barlow:

That’s right.

Potter Stewart:

And presumably, I suppose that these very proceedings would make it difficult, if not impossible, to pass the character test if that were true.

A. William Barlow:

I don’t know why, sir.

Potter Stewart:

No.

A. William Barlow:

It —

Potter Stewart:

To get some answer on it —

A. William Barlow:

It depends on what the — possibly, if it ever came back into the Supreme Court, it’s what this Court would consider good moral character.

Maybe our Court might decide that based on these proceedings, she doesn’t possess good moral character.

A. William Barlow:

It may very well be that this Court on review, as they did in the Schwerin and Cunningsburgh case, stated “In our opinion, your finding is arbitrary.

You’re dogmatic, and we think that this one little incident doesn’t — shouldn’t deprive the present from her right to practice law.

Potter Stewart:

But you’re not here today characterizing this as one little incident, are you?

A. William Barlow:

No, sir.

Now, insofar as the Bar Association of the Territory of Hawaii is concerned, we consider this a very serious breach of the Canons of Ethics and that’s all we do consider, as a breach of the Canons of Ethics.

Felix Frankfurter:

Who — who determined — who would determine in Hawaii qualifications to be readmitted to the Bar?

A. William Barlow:

The Supreme Court itself, sir.

Felix Frankfurter:

And the Supreme Court suspended this member of the Bar for a year.

A. William Barlow:

That’s right, sir.

Felix Frankfurter:

I should think it would be a very hard time.

I should think any court or tribunal would have a hard time suspending misconducts or violations of the Code of Ethics of a lawyer for a year and then say that because he suspended you for a year, which means, a year thereafter, you never can be admitted again.

That they will ask — indeed, wasn’t there one member who thought she should be disbarred?

A. William Barlow:

One member of the Court —

Felix Frankfurter:

The Court refused —

A. William Barlow:

— felt —

Felix Frankfurter:

— to disbar her.

A. William Barlow:

That’s right.

Felix Frankfurter:

Well, they can’t subsequently disbar under the pretense that they won’t allow her to take the examination if she doesn’t satisfy the requirement.

I should think —

A. William Barlow:

It’s very possible, sir.

Felix Frankfurter:

Well, I — I don’t know anything about it, but I should have a hard time finding that the Court was justified when it found that the appropriate punishment is a year — to be suspended for a year then say, “Oh well, that meant — that year meant that you’ll forever have to disqualify.”

A. William Barlow:

Of course, the —

Felix Frankfurter:

That seems to me to be playing tricks for its own determination.

A. William Barlow:

It may very well be, sir, but the possibility arises at something, maybe the young lady could never pass a written test again, —

Felix Frankfurter:

Well, that’s a different —

A. William Barlow:

— may —

Felix Frankfurter:

— I’m not talking about that but that’s a different story.

If fair questions were put and the intellectual test isn’t met, I’m merely suggesting that the Court that said a year’s suspension is appropriate response to the misconduct that they’ve found, they couldn’t, afterwards, say the year’s suspension meant light suspension.

A. William Barlow:

That’s right.

Hugo L. Black:

They could say it passed a very heavy burden on her, couldn’t they, one that’s very difficult to get over?

A. William Barlow:

Well, they could say that “it’s up to you to carry the ball,” so to speak, “to prove to us that you’re a person of good moral character” but as Justice Frankfurter indicates, that they suspended her for a year.

Felix Frankfurter:

Anyhow, we took a case that didn’t have — that was, I should think, less clear than this and we thought we could review a determination.

I think your Court that solemnly said “you are to be suspended for a year” can, on the same basis, say, “All we meant was that meant life.”

Hugo L. Black:

That would depend on the feelings and beliefs of those who presided in the Supreme Court of Hawaii and those who passed on the case here as it came back at the time it came here, wouldn’t it?

A. William Barlow:

I might say for the Court’s benefit that as soon as we become a state, we’ll have a new Supreme Court and the people that participated in this proceeding more likely will not be members of the Supreme Court.

Hugo L. Black:

Why is that?

A. William Barlow:

Because of age considerations.

Under our constitution, there’s an age limitation and two of the Judges would be automatically disqualified because of age.

Felix Frankfurter:

I’m merely suggesting that I thought we had decided the Court can’t be or a state court can’t be arbitrary even as to admission or continuance at the Bar, and I can’t imagine anything more arbitrary than for a court, a predecessor court, if you will, who said a year would be appropriate response to wrong doings then saying a year meant life.

I can’t imagine anything more arbitrary than that.

Hugo L. Black:

What do your rules require with reference to the burden that one has to meet who has been suspended for a year?

Felix Frankfurter:

We have no rules on that sir.

The only —

Hugo L. Black:

No rules of any kind?

A. William Barlow:

No, that’s right, sir.

The only rule we have is that a person who has been suspended for a period in excess of six months must satisfy the character qualifications and take a written test, —

Potter Stewart:

Like any due applicant.

A. William Barlow:

— the same as she was —

Potter Stewart:

Like anyone who has never been admitted to the Bar.

A. William Barlow:

That’s right.

The same as if you were applying for admission de novo.

William J. Brennan, Jr.:

Take the same questions.

A. William Barlow:

The same examination, sir.

It isn’t a special examination.

You take the same examination that a law student takes.

William J. Brennan, Jr.:

This suspension is not — has not been properly set off.

A. William Barlow:

It has not.

There is a stay order that was issued by the Ninth Circuit Court, so that she has been practicing and carrying on her profession since the hearings.

William J. Brennan, Jr.:

Now, what has to be the size of your new Supreme Court?

A. William Barlow:

Five Judges, sir.

William J. Brennan, Jr.:

Presently on the Bar?

A. William Barlow:

Three.

When — when we got to the Ninth Circuit Court of Appeals, may it please the Court, we contended, initially, that the Ninth Circuit Court had no jurisdiction to accept this case under Title 28 Section 1293.

The Court ruled against us two-to-one, Justice Lennon dissenting.

Then, the matter was set down for a hearing, a full-scale hearing, before another three-man panel.

We argued the case, we argued the merits of the case before this panel, and the panel never came up with a decision.

Either by hearsay or through the grapevine, we found out that that panel did not agree with the first panel.

Insofar as jurisdiction was concerned, they felt that the Ninth Circuit Court did not have jurisdiction, so they set the matter down for a full- scale hearing before a nine-man court.

And we then argued the matter before a nine-man court.

The opinion reflects seven members four-for, and three-against.

Justice Denman, who was the Chief Justice at that time, retired after the case was argued and Justice Lemmon died, leaving seven Judges to participate.

That Court found that the Bar Association had sustained its burden.

That Court found that the petitioner was guilty of the conduct that was charged in the complaint.

That Court indicated in its decision that they thought that they held jurisdiction by the very narrowest of threads insofar as the first count of the complaint involving her claim of freedom of speech was concerned.

Insofar as count 2, involving the incident with the juror pool was concerned, they indicated that if we weren’t — if the petitioner wasn’t in Court on count 1, she certainly wouldn’t be in Court on count 2.

Was there any expressed finding that the leave had embarrassed the conduct of the trial?

A. William Barlow:

The Ninth Circuit Court did so find, sir, the majority opinion, that —

Expressed by the rules?

A. William Barlow:

— that the burden was sustained by clear and convincing evidence that she did attack the integrity of the Judge.

Now, that isn’t the question.

My question was the expression was or wasn’t that the findings of the fact that her conduct had embarrassed the conduct of the trial.

A. William Barlow:

No, sir.

There was no finding that in fact, her conduct had embarrassed the Court or the trial.

William J. Brennan, Jr.:

So, there was a finding of guilty in that trial?

A. William Barlow:

There was a finding of guilty insofar as the defendants were concerned —

William J. Brennan, Jr.:

That’s right.

A. William Barlow:

— at the trial, yes sir.

The essence of the trial really is an unprofessional conduct of a lawyer throughout talking about a case while it, perhaps, progressed.

Do you say it went that far?

A. William Barlow:

I would say it went that far because the majority opinion by Justice Chambers says that it is a serious violation and a breach to the Canons of Ethics for a lawyer to litigate by day and castigate by night.

Hugo L. Black:

Publicly.

A. William Barlow:

Publicly, that’s right.

And as the Court will be familiarized with the tone and tenor of her remarks, as reflected in the appendix to our brief, in that speech entitled “Fear,” which she made two days or three days, I think the indictment was returned on August 29th or 28th, 1951.

The day following that she and Mr. Symonds entered their names as attorney of record, and two days later, on Labor Day, or three days later, she made that speech that is appended to our —

How many —

A. William Barlow:

— brief.

— Smith Act trials had there been in Hawaii?

A. William Barlow:

One, sir.

This is the only one?

A. William Barlow:

This was the only one.

That’s right, sir.

Potter Stewart:

So, this Labor Day speech was made before there was any trial, a couple of days after the indictment in this case.

A. William Barlow:

That’s right.

Potter Stewart:

And how long before the trial in this case was ended?

A. William Barlow:

Well, the trial actually started the day after election in 1952.

Potter Stewart:

So, this was 14 —

A. William Barlow:

So, this —

Potter Stewart:

— 15 months before, right?

A. William Barlow:

This was made approximately —

Potter Stewart:

More than a year before.

A. William Barlow:

— 14 months before.

William O. Douglas:

And you said, yesterday, that that speech that’s relevant here is showing it, what?

A. William Barlow:

A pattern.

The reason that we introduced the pamphlet “Fear” and some of the other speeches that she had made was to show the Committee and the Court that this was not a spontaneous exclamation or a spontaneous suggestion on her part, that it was part of a program, part of a plan and design to bring discredit upon the Judges and discredit upon the courts and to show the community in which she resided that Smith Act trials were, in effect, a conspiracy.

If the Court will read very carefully the notes, Matsuoka’s notes, the thoughts contained in Matsuoka’s notes, the testimony of all the witnesses that testified at the hearing, I think the Court can very easily come to the conclusion that she was preaching to the community at large that the Government and the Court were conspiring.

She talked —

William J. Brennan, Jr.:

Is that a crime in Hawaii?

A. William Barlow:

During the litigation, sir?

William J. Brennan, Jr.:

I’m talking about this pretrial speech.

It would — would that be seditious libel or —

A. William Barlow:

Not insofar as the Fear pamphlet is concerned, sir.

But when you take that speech, you can come to the conclusion that this was not a spontaneous declaration on her part, that she knew what she was talking about, that she wasn’t excited or agitated or probably, for that moment, mad about something, that this was part of a program and whether the —

Earl Warren:

You mean that she held those dues consistently, is that what you mean?

A. William Barlow:

That’s right, sir.

William O. Douglas:

You mean you can’t be against the Smith Act and —

A. William Barlow:

Yes.

I know that there are a lot of people against the Smith Act and I think that you can be legitimately against anything under our constitution.

Earl Warren:

Can you say it?

Can you say it if you aren’t?

A. William Barlow:

Sir?

You can say it if you — if you aren’t?

Earl Warren:

If you are, that opinion, —

A. William Barlow:

If you are, you —

Earl Warren:

— can you say —

A. William Barlow:

Under the First Amendment, you can express yourself insofar as the Smith Act is concerned, but that’s not our problem here.

Our problem here is that she not only held these views, but expressed them during the pendency of a case in which she was one of the very active counsels.

And if the Court will read the colloquy between Judge Wiig and a petitioner, the Court will find out that the petitioner, apparently, was a little aggravated because the Judge was allowing certain kinds of testimony into the record because when the Judge asked her, “Did you make the statement that rather, horrible and shocking things go on in this trial?”

She said, and this is only two days later, “I have no recollection of making that statement,” she says, “but I want it clearly understood.”

And I would like to invite the Court’s attention to page 29 of the record.

This is Exhibit A, the colloquy between a petitioner and Judge Wiig.

“As the Court can see, my remarks were directly toward the conduct of the prosecution and were not directed toward the Court.”

And this is the part that I want to invite the Court’s attention to, “By that I do not mean to say that the defense counsel, in any way, received from the position that was taken in the brief filed in connection with the Crouch’s testimony in which we believe we have cited authorities showing that Your Honor has admitted evidence which is not admissible even in ordinary conspiracy cases.

Hugo L. Black:

What’s wrong with that?

A. William Barlow:

There’s nothing wrong with it except that it corroborates Matsuoka’s notes, it corroborates the witness’ testimony that she did say that the Government and the Court were engaged in a conspiracy whereby they were widening the rules of evidence, whereby the rules of evidence were being scrapped so that the Government could make out a case.

And in one —

Hugo L. Black:

Is the complaint that she used the word “conspiracy”?

A. William Barlow:

Sir?

Hugo L. Black:

Is the complaint that she used the word “conspiracy” or is it what she said?

A. William Barlow:

No, the complaint is in what she said.

She did not, in so many words, or she did not use the word “conspiracy”.

A. William Barlow:

She did not say that the Government conspired with —

Hugo L. Black:

I understood you to say, several times, that she accused the Government of conspiring to do this.

A. William Barlow:

Well, that’s my own —

Hugo L. Black:

I thought you did.

A. William Barlow:

That’s my own language.

I am not quoting from —

Hugo L. Black:

Did she say that at any time?

A. William Barlow:

Sir?

Hugo L. Black:

Did she say that at any time, that she doesn’t have anything —

A. William Barlow:

She did not say it at anytime, using the word “conspiracy,” but I think that when you read the speech as a whole, you can rationally infer that she was alleging a conspiracy between the Government and the Judge in widening the rules of evidence —

Hugo L. Black:

Suppose she had made —

A. William Barlow:

— in —

Hugo L. Black:

Suppose she had made this identical speech at the identical time in the identical place and had not been a lawyer in the case.

Would that make any difference?

A. William Barlow:

Under the Canons of Ethics, I would say she had violated Canon 1, yes, sir.

Hugo L. Black:

You would say that any lawyer who had made this speech should be disbarred just — suspended just as she has been?

A. William Barlow:

Yes, sir.

Hugo L. Black:

So, it doesn’t depend of the fact that she was counsel of the law.

A. William Barlow:

It aggravates the situation by virtue of the fact that she was counsel in the pending case.

When —

Hugo L. Black:

What about a law —

A. William Barlow:

When a lawyer gets up —

Hugo L. Black:

What about a law review article?

It makes charges tantamount to the same thing.

A. William Barlow:

I’m not prepared to answer a law review article that makes the same charges.

If the writer of the law review article imputes a dishonest motive to the Judge but the Judge is scrapping all rules of evidence, —

Hugo L. Black:

That’s done —

A. William Barlow:

— that he is allowing —

Hugo L. Black:

That’s done pretty often, isn’t it?

I think I have seen some editorial of Judge Richmond to that effect.

A. William Barlow:

Well, there’s no doubt about it.

There’s —

William J. Brennan, Jr.:

How about the opinion of this Court?

A. William Barlow:

I think that this Court is —

William J. Brennan, Jr.:

Suppose that many is the same that you said, here, you’d find the — an opinion from this Court.

A. William Barlow:

Yes.

I think that this Court is subject to criticism.

Frankly, I have criticized some of the decisions of this Court, but I’m not here litigating today and last night, I wasn’t out making a speech criticizing this Court for the shocking and horrible things that go on in here.

Hugo L. Black:

Well, do you think, if you hadn’t gone out and made a speech somewhere here criticizing the Court for what it’s doing, that you could have been disbarred in whole or in part?

A. William Barlow:

I think, frankly, that I would be subject to censure if I showed disrespect to this Court and that’s all we’re claiming, that she was disrespectful to the Court under Canon 1.

I mean, what do you have to do to be disrespectful to a court?

Hugo L. Black:

That’s one of the problems through history as to what was disrespectful to the Court and to whether that was enough to take away a person’s liberty or his right to do something.

A. William Barlow:

Well, she’s merely being deprived temporarily.

If the —

Hugo L. Black:

Well, that’s a —

A. William Barlow:

If the Canons of Ethics are going to be nullified, in effect, by allowing people to go out during the course of a trial and accuse a presiding Trial Judge of getting together, so to speak, with the prosecution so that the prosecution can allow or put in all kinds of testimony, then, I think that the Canons of Ethics are worthless.

Hugo L. Black:

Have they been adopted as a part of the Law of Hawaii?

A. William Barlow:

The Canons of Ethics have been adopted by the Supreme Court of the Territory of Hawaii.

Hugo L. Black:

Has there been any statute adopting it?

A. William Barlow:

There’s no statute.

It’s merely by rule of the Court.

Felix Frankfurter:

Do all the decisions of your Court rest on statute?

A. William Barlow:

Not necessarily, sir.

Hugo L. Black:

Do — are there any times when people’s rights to make a living are taken away from them without a law passed to that effect?

A. William Barlow:

Not that I know of, sir.

Hugo L. Black:

In Hawaii or anywhere else?

A. William Barlow:

Not that I know, sir.

No one is taking away anybody’s living here, sir.

They’re suspending —

Hugo L. Black:

Well, I should —

A. William Barlow:

— your license for one year.

Hugo L. Black:

I should think that that would be a play on words.

A person whose practice, goes to law school, I don’t know how long, takes all the courses and gets ready, to say that you deprive them of the right to practice for a year does not affect their right to have the ability to earn a living.

Your case may be alright on the other grounds, but I don’t believe that would support that argument.

A. William Barlow:

Well, there’s no doubt in my mind that if we’re being practical, if she is suspended for a year, she losses whatever earning capacity she has for that year.

I don’t deny or dispute that but there’s big — one bigger question here, may it please the Court.

Hugo L. Black:

Just one?

A. William Barlow:

Well, there’s one in answer to this question and that is whether a lawyer is engaged in a business, or whether we’re engaged in a profession, and whether we, as lawyers, are bound by standards that are a little higher than a businessman.

The petitioner makes the statement in this —

Hugo L. Black:

Do you —

A. William Barlow:

— reply —

Hugo L. Black:

Do you think, whichever it is, that a lawyer is entitled to any less protection than an ordinary citizen?

A. William Barlow:

No, I think lawyers are entitled to as much, if not more, protection than ordinary citizens.

But I certainly think that a lawyer’s conduct should be guided by a higher formula, a higher degree, or a higher standard than an ordinary citizen.

And if a lawyer is not supposed to be guided by a different standard than an ordinary businessman, then I say that the Supreme Court should say, in effect, that “insofar as the Canons of Ethics are concerned, disregard them.”

Felix Frankfurter:

Are you going to leave yourself time to discuss the juror question?

A. William Barlow:

I think so, sir.

I think that I’ve covered the speech incident sufficiently.

I think if the Court will look at our brief, we have tried to itemize and corroborate each one of the statements that was made by Matsuoka in his notes.

And before I get off that subject, I would just like to say to the Court that it isn’t only Matsuoka’s notes that is part of this record.

If the Court will look at the record, the Court will find out that Matsuoka was put under oath and he testified for 17 pages, and petitioner’s counsel cross-examined him extensively and intensely.

And Matsuoka testified under oath to many of the statements that are found in his notes and in a newspaper article.

Potter Stewart:

Just before you leave that point for good, is — am I right in understanding that it’s your basic position that the First Amendment does not protect a lawyer from being disciplined for unethical conduct even thought that conduct may consist in — simply in speech which is, we may assume, protected speech from the point of view of the — that the citizen might make from the First Amendment but still, that that does not protect a lawyer from disciplinary proceedings taken to discipline him in his professional status.

Is that it?

A. William Barlow:

That’s right, sir.

If it does, then Canon 1 is worthless.

Potter Stewart:

Well, most the Canons or many of them are worthless, aren’t they?

A. William Barlow:

Well —

Potter Stewart:

If — if that — if —

A. William Barlow:

Well, that’s what I — that’s why I say that if you hold that a lawyer is to be measured by the clear and present danger test that Judge Pope advocates, then you might just as well scrap the Canons of Ethics.

A. William Barlow:

And frankly, I have been operating under the Canons of Ethics for a long time and if the Supreme Court feels that they are worthy of being scrapped, I would like to be so advised because I’d like to get in there and meet my competition.

Hugo L. Black:

Do we have to pass on all those other Canons of Ethics in order to decide whether a lawyer could be disbarred for making a speech?

A. William Barlow:

No, sir.

Hugo L. Black:

Well, why do you say that this necessarily scrapped the Canons of Ethics?

A. William Barlow:

Well, if you’re scrapping the First Canon of Ethics, I think that you’re scrapping one of the most important of all the Canons of Ethics which requires a lawyer to show a little respect for the court in which he is advocating.

What about the jury or the juror’s point?

A. William Barlow:

It’s our contention that petitioner violated Canon 23, Opinion 109 of the American Bar Association, violated the Rakes and Millie rulings.

After the verdict, Mrs. Bouslog got a telephone call on a Friday night from a woman who was the sister of the sick juror.

This woman was a member of the ILWU.

She called Mrs. Bouslog and said, “My brother is sick.”

Mrs. Bouslog said, “Is he a member of the ILWU?”

Or something to that effect.

She is — she indicated he was.

So, she says, “I’ll be right down.”

She went down and she found the juror to be in a very weakened position.

I think her affidavit indicates that he was motionless, that he certainly was too sick to be talked to at that time.

She talked to the —

Earl Warren:

Have you given us all of the conversation that took place between the two at the —

A. William Barlow:

No, I have not, sir.

Earl Warren:

— at the beginning?

A. William Barlow:

I am —

Earl Warren:

Well, why don’t you give us the sum of the rest of it?

That might be important.

All you told us was that she said, “My brother is sick,” and the respondent or the applicant here said, “Well, is he a member of the ILWU?”

Now, those things, in themselves, don’t mean very much.

Were they acquainted?

Do they know each other, these people who —

A. William Barlow:

Well, I was coming to that sir.

Earl Warren:

Well, I —

A. William Barlow:

Mrs. Bouslog is the attorney for the ILWU.

Earl Warren:

Well, I know.

I know, but I’m just wondering if you told us what the fair import of this first conversation was where the woman called.

Is that all that was said?

A. William Barlow:

I am practically quoting the record verbatim, sir.

Earl Warren:

That’s all that was said, that’s all?

A. William Barlow:

Mrs. Cabreros who is the sister of the juror, Fuller, called Mrs. Bouslog who is the attorney for the ILWU.

Earl Warren:

Yes.

A. William Barlow:

And she said to Mrs. Bouslog, “My brother David, who was the juror, is sick.”

Earl Warren:

Yes.

A. William Barlow:

And Mrs. —

Hugo L. Black:

Did she say anything else that he’d said?

Did she say that he — she —

A. William Barlow:

Mrs. Cabreros?

Hugo L. Black:

Did she say he wanted to see her?

A. William Barlow:

She indicated in her conversation that he wanted to see her.

Earl Warren:

For this —

Hugo L. Black:

Why?

A. William Barlow:

And she indicated that she had told Mrs. Bouslog that her brother was yelling, “Frame up!”

Hugo L. Black:

Was what?

A. William Barlow:

Was yelling “frame up!”

F-R-A-M-E -U-P, frame up.

And because of the fact that he was yelling “frame up,” the fact that he was sick, she went —

Hugo L. Black:

What do you mean by that?

Did she use the word “yelling?”

A. William Barlow:

I don’t —

Hugo L. Black:

Why did she say that her brother said that the conviction was a frame up?

A. William Barlow:

Words to that effect.

Earl Warren:

Well, that’s a rather important part of this conversation that you only told us fragmentarily, isn’t it?

A. William Barlow:

It is sir, I —

Earl Warren:

Why didn’t —

A. William Barlow:

If the Court wants me —

Earl Warren:

Why didn’t you tell us that?

A. William Barlow:

— to, I can read the record for the Court.

Earl Warren:

Well, no, but if you’re going to relate the conversation, I would suggest that you relate the important parts of it so that — so that we can understand what the genesis of this whole thing was.

Well, don’t bother about that now.

I’ll give you three minutes to — to state your position on this because your time has expired.

A. William Barlow:

Alright, sir.

The — anyway, Mrs. Cabreros indicated to Mrs. Bouslog that her brother wanted to see her.

Mrs. Bouslog came down, she found the brother sick in bed.

She did not interview the juror on that occasion.

She came back the following day and conducted a very searching examination, an inquiry of the juror as to what transpired in the jury room.

And I think that our brief shows that the juror, presumably, related 30 different incidents that occurred in the jury room and she submitted that affidavit to Judge Wiig in an attempt to impeach the verdict.

The judge, as I recall the situation, did not have a hearing on that affidavit, but the Bar Association charged her with this violation of conducting a studied interrogation of the Juror Fuller.

And the evidence before the Court in the record will indicate that Mrs. Fuller had made many of the statements to Mrs. Bouslog, that Mrs. Bouslog did not advise Judge Wiig of the exact physical condition or mental condition of the juror, that she related to Judge Wiig the conversation that she allegedly had with the juror, and the many things that the juror told her occurred in the jury room.

And the — Mrs. Bouslog did not tell the judge in her affidavit that the Juror Fuller was too sick to sign an affidavit.

She did not tell the judge that she tried to get the wife, Mrs. Fuller, to sign an affidavit but Mrs. Fuller said, “I won’t sign that affidavit because what you have in that affidavit is not what my husband said.”

So, Mrs. Bouslog decided to sign the affidavit instead.

And the Court has before it the record of the doctor that treated the juror.

The Court has before it the record of the psychiatrist that treated the juror.

And we feel that under all the circumstances, that studied interrogation violated Canon 23 and it violated the holdings in the Millie and Rakes cases.

Earl Warren:

Was it — was it misconduct for her to go out and see this juror?

A. William Barlow:

It depended on what she went out to seem him for.

Earl Warren:

Well, in response to this telephone message that her client had been framed, was it misconduct for her to investigate that after her juror had been discharged from duty?

A. William Barlow:

The Canon 3 says — or 23 says that a lawyer should never communicate with a juror, that’s before or after and during the course of a trial.

Earl Warren:

Well, there would be thousands of lawyers disbarred in this country if that rule was observed.

A. William Barlow:

Well, it’s possibly so and if the Court feels that you can interrogate a juror after verdict, why, I’m sure that there are lots of us lawyers who adhere to the Canons and don’t interrogate jurors.

We would like to know because we’d like to get to the jurors too —

Hugo L. Black:

Is there any law —

A. William Barlow:

— to find out what they’re thinking about.

Hugo L. Black:

Is there any law against it?

A. William Barlow:

Sir?

Hugo L. Black:

Any law against it in Hawaii?

Is there any statute against it?

A. William Barlow:

There is no statute against interrogating a juror, sir, except that the Ninth Circuit Court has laid down a rule in the Millie case which indicates that it is a violation of the Canons of Ethics to interrogate jurors, to — to conduct a studied interrogation of jurors after verdict.

Hugo L. Black:

Well, you mean if the — if the lawyer hears that there’s been misconduct that brought about the conviction of his client, that he violates some kind of law written by the Courts so somebody else to make inquiry about it, of the juror?

A. William Barlow:

Well it’s —

Hugo L. Black:

Is that what this second charge is based on, this second — the part of the —

A. William Barlow:

The second charge is based on a fact that she conducted a studied interrogation of a juror.

Hugo L. Black:

What do you mean by “studied?”

A. William Barlow:

The witness Hall indicates that we would develop the subject.

We would ask him questions, he would answer.

She would ask a question, I would ask a question, and he would answer.

We would develop a subject then go onto another subject.

Hugo L. Black:

They had a right to do it.

They had a right to do it their way, didn’t they?

I don’t quite get what you mean by that.

A. William Barlow:

Well, the Ninth Circuit Court, may it please Justice Black, has decided in the Millie case that it’s unethical and it’s not proper for a lawyer to conduct a studied investigation or interrogation of a juror after a trial.

Hugo L. Black:

Do they use the word “studied” and make that a part of it?

A. William Barlow:

I’m not sure that I am quoting the exact words but that’s the import of the ruling and holding of the Ninth Circuit.

Hugo L. Black:

So, then, under that rule, as you understand it, even if a person’s file had been convicted of a crime, and he’s learns that one of the jurors says there has been some misconduct that they ought to know about, that he would be subject to disbarment if he went down to the juror and made inquiries on it?

A. William Barlow:

Under certain circumstances, sir.

Hugo L. Black:

Well, I’m talking about the circumstance that he learns or he’s told that this juror says that there’s been misconduct if — that he should know about in connection with the conviction of his client.

A. William Barlow:

He is not supposed to conduct an investigation of a juror subsequent to a verdict.

Felix Frankfurter:

He could go to the judge but need not tell him about it.

A. William Barlow:

Well, I mean —

Felix Frankfurter:

Could he do that?

A. William Barlow:

— that’s too simple for some —

Felix Frankfurter:

Pardon me?

A. William Barlow:

— lawyers to do.

Felix Frankfurter:

Pardon me?

A. William Barlow:

I said that’s too simple —

Felix Frankfurter:

But he —

A. William Barlow:

— for some lawyers to do.

Felix Frankfurter:

I mean, there’s nothing in the law or in the understanding of the Bar or in the conceptions of propriety that prevents him from going to the judge, is there?

A. William Barlow:

Not to my knowledge.

Felix Frankfurter:

But where is anything —

A. William Barlow:

The Judge is available for that purpose.

Hugo L. Black:

Where is anything in any law in any state in this Union that bar, it may be there, I don’t know, I never heard of it, —

A. William Barlow:

Well —

Hugo L. Black:

— that bars a lawyer from investigating and asking a juror after the case is decided in connection with an effort to find out if there’s been something done wrong?

A. William Barlow:

Well, it’s — we have it in our brief, sir, in the Millie case and in the Rakes case.

One is the Fourth Circuit Court of Appeals and the other is the Ninth Circuit Court of Appeals.

Felix Frankfurter:

Is that based on a statute?

A. William Barlow:

No, sir.

What you are —

Hugo L. Black:

That —

— saying is if there is a general understanding with the Bar that lawyers don’t have relations with jurors during, before — or after or during the trial, isn’t that what you’re saying?

A. William Barlow:

That’s right.

Hugo L. Black:

And what do you base the statement on that there is such a general understanding after the jury has been discharged, anything but those two cases?

A. William Barlow:

Those two cases, plus, Canon 23.

Which is really before us.

A. William Barlow:

That’s right, sir.

Earl Warren:

And did those cases — in those cases, did the juror ask to see the lawyer?

A. William Barlow:

Well, I think, may it please the Court, I think that if you read the evidence, you’ll find out how and who asked to see what lawyer in this particular case.

It isn’t —

Felix Frankfurter:

I haven’t done that.

Could you please tell us what bearing what you said a little while ago that the lawyer asked — this lawyer asked the wife to sign an affidavit prepared by her which the wife refused to sign because she said it didn’t contain what her husband said.

A. William Barlow:

That’s right.

Felix Frankfurter:

Now, is that in the evidence?

A. William Barlow:

That’s right, sir.

Felix Frankfurter:

Was that before the Committee of the Bar and the Supreme Court?

A. William Barlow:

That’s right, sir.

Felix Frankfurter:

That it ended to the conclusion on this point?

Was that relevant to this — to the charge?

Was it relevant to the charge —

A. William Barlow:

It —

Felix Frankfurter:

— that a lawyer prepared an affidavit containing things which did not represent what the witness, quoted in the affidavit, supposedly said and asked somebody to sign it?

A. William Barlow:

It was relevant to the charge in this respect, that when they asked us for a bill of particulars as to whether the affidavit was true or false, we stated that we did not make any statement as to the truth or falsity of the affidavit.

All we say is that the affidavit, its contents, and the manner in which it was secured violate the Canons of Ethics.

Felix Frankfurter:

What I want to know is whether the Supreme Court of Hawaii had before it testimony that an affidavit is prepared which included matter that did not correspond to the author who was quoted as having said what was in the affidavit, and whether the Hawaii Supreme Court deemed that relevant to the charge before it.

A. William Barlow:

They had before it that — those facts and they deemed it very relevant to the findings in this case.

Hugo L. Black:

Now, what I’d like to know, as this has come out at the last moment, is for you to point out in the record where that is the basis on which the suspension rests, in one sentence in the whole record.

A. William Barlow:

I can’t point out —

Hugo L. Black:

Can you —

A. William Barlow:

— that that —

Hugo L. Black:

Can you point it out later and send it to us where it would show where that was the basis on which this second charge was sustained?

A. William Barlow:

Well, by, that I don’t understand what Justice Black that if —

Hugo L. Black:

Well, I know that there’s some kind of —

A. William Barlow:

— when you say “that,” —

Hugo L. Black:

— some kind of judgments —

A. William Barlow:

— what do you mean by “that?”

Hugo L. Black:

Some kind of judgment and some kind of order.

If a person has been found guilty of perpetrating a false affidavit, I assume that you wouldn’t want that done by implication.

Where did the Court find that?

A. William Barlow:

The Court made no finding that there was a false affidavit.

Hugo L. Black:

Where did the —

A. William Barlow:

And —

Hugo L. Black:

— where did the Bar Association?

A. William Barlow:

They made no finding on that sir.

Hugo L. Black:

Where did they charge it?

A. William Barlow:

They didn’t charge her on that.

Hugo L. Black:

They didn’t charge it.

A. William Barlow:

And I —

Hugo L. Black:

They didn’t charge it and they didn’t find it?

A. William Barlow:

That’s right and I did not so —

Hugo L. Black:

You want us to look at the record to find out if they could have done something on that if they had charged it and the Court had found it.

A. William Barlow:

I did not make any statement to Justice Frankfurter that the affidavit contained a false one.

I say that the Court can easily, after it reads the evidence and evaluates the evidence, come to the conclusion that perhaps, the affidavit didn’t state facts.

And my answer to Justice Frankfurter was that Mrs. Fuller stated to Mrs. Bouslog that “I will not sign this affidavit because this affidavit does not contain the facts as they are.”

Felix Frankfurter:

My —

Hugo L. Black:

And the question I asked was did the Bar Association charge that.

A. William Barlow:

We did not charge her with —

Hugo L. Black:

Alright, the Bar Association didn’t charge it.

Did the Bar Association find that to be a fact?

A. William Barlow:

Yes, sir.

Hugo L. Black:

Where is that finding?

A. William Barlow:

There’s a finding by the Bar Committee to that effect.

Hugo L. Black:

Where is it?

A. William Barlow:

Rather than take the time of the Court, I would like permission to — “with respect to the charges in paragraph 3, the Committee finds that when” —

Felix Frankfurter:

Where are you reading from?

A. William Barlow:

Page 15 of the record, sir.

“With respect to the charges in paragraph 3, the Committee finds that after rendition of the verdict in Criminal 10 Corps 95 mentioned above Mrs. Bouslog visited one of the jurors, David P. Fuller, Jr. while he was in a very poor mental and physical condition, and thereafter, submitted her affidavit concerning an interview with the juror to the presiding Judge.

While the affidavit of Mrs. Bouslog indicates that on the first occasion, he was gravely ill, the Committee finds that she did not fully disclose to the Court the condition of Mr. Fuller, nor the fact that she had attempted to get affidavits from Mrs. Fuller who refused to sign one and could not get an affidavit from Mr. Fuller because of his condition.”

Earl Warren:

Does that say it’s false?

A. William Barlow:

No, it doesn’t say it’s false.

I didn’t say it was false either.

I said that the testimony of Mrs. Fuller indicated that Mrs. Fuller made the statement that the matters contained in the affidavit weren’t factual.

That’s all I said.

And I say to this Court that you can very easily come to the conclusion that that is a false affidavit.

Felix Frankfurter:

Since I got you into this, I think I will just state what my question was.

Felix Frankfurter:

My question was whether there is in the record evidence that an affidavit prepared by the lawyer purporting to set forth the facts was submitted to a witness, to a person to sign, Mrs. Fuller, who refused to sign because she said it didn’t conform to what she understood her husband had said.

A. William Barlow:

That is —

Felix Frankfurter:

Your answer to that was yes.

A. William Barlow:

It is in the record, sir.

Earl Warren:

And then — then, Mrs. Bouslog or Mrs. Sawyer made the affidavit herself.

A. William Barlow:

That’s right, she signed —

Earl Warren:

Now —

A. William Barlow:

— the affidavit herself.

Earl Warren:

Now, do you — do you contend that that is a false affidavit?

A. William Barlow:

Is the Court asking me for my personal opinion?

Earl Warren:

No, I’m asking you — of course in accord with this record.

A. William Barlow:

I think —

Earl Warren:

Is there anything in the record here to indicate that — that it is false?

A. William Barlow:

I think that the Court can come to the conclusion that it is a false affidavit.

Earl Warren:

Did anybody below come to that conclusion?

A. William Barlow:

The point was never decided by any court below, no, sir.

Felix Frankfurter:

But that doesn’t wipe out the fact that she did prepare an affidavit for signature by the wife of the man who’s supposed to have said what she made him say and the wife refused to sign it because she said that isn’t what her husband said.

A. William Barlow:

That’s right.

Felix Frankfurter:

That is still in the record?

A. William Barlow:

That’s right.

Hugo L. Black:

And then sign it?

A. William Barlow:

Sir?

Hugo L. Black:

Did she sign it then after that?

A. William Barlow:

When Mrs. Fuller refused to sign the affidavit, then Mrs. Bouslog made an affidavit.

Now, whether it was the same affidavit, the same —

Felix Frankfurter:

But Mrs. Fuller never signed the affidavit.

A. William Barlow:

No, she never did.

She never signed the affidavit because she said, under oath, that it contained matters that were not factual.

Hugo L. Black:

Do you think that’s the basis on which this woman has been suspended from the Bar, that — that statement by Mrs. — the juror’s wife?

A. William Barlow:

You mean if you take it alone, isolate it?

A. William Barlow:

No.

Hugo L. Black:

I’m just saying is that’s the basis on which this due process that you say has been given her was given to her, that they were suspending her from the Bar because she has a woman to sign an affidavit which the woman said is not the correct?

A. William Barlow:

Sir, that’s only part of this whole problem.

Hugo L. Black:

I understand that.

A. William Barlow:

That’s one facet.

That is not the reason why the Court voted suspension, and I might say to the Court that insofar as the Supreme Court of the Territory of Hawaii was concerned, they did not impose any punishment on the second count because they felt that their one-year suspension on the first count was adequate, so that she was not given any suspension for the second count.

Hugo L. Black:

Well, do we have it up here at all, the second count?

A. William Barlow:

Well, frankly, as far as I am concerned, I subscribe very heartily to Justice Lennon’s opinion and decision and I don’t think that this case should be here.

Potter Stewart:

Didn’t the Court of Appeals for the Ninth Circuit unanimously believe or a majority of them at least believe that if the second count alone had been involved, that Court would have had no jurisdiction?

A. William Barlow:

That’s right, sir.

William J. Brennan, Jr.:

The facts we knew were all been called.

This was imposed.

A. William Barlow:

As a —

William J. Brennan, Jr.:

It didn’t enter into the discipline, did it?

A. William Barlow:

As a matter of fact, the Court decided that she was guilty on two counts.

It isn’t very artfully set out by the Supreme Court and as a matter of fact, the petitioner herself did not bring the matter up on appeal in the Ninth Circuit Court.

They took it upon themselves to look into the matter and write the opinion that they did.

The only thing that the petitioner went up to the Ninth Circuit on was the first count involving the speech.

Felix Frankfurter:

May I ask you —

A. William Barlow:

Yes, sir?

William J. Brennan, Jr.:

Only when she —

Felix Frankfurter:

She didn’t ever sign on anything.

A. William Barlow:

That’s right.

The Court said that “we feel that the year’s suspension is sufficient and we will not impose an additional punishment on the second count,” sir.

Felix Frankfurter:

May I ask a jurisdictional question about this.

I’m fully ignorant.

As I understand from the cases that have come here, the two cases, we have said over the last 20 years that there are certain limitations upon the reviewing power of the Ninth Circuit of judgments in the Supreme Court of Hawaii.

A. William Barlow:

That’s right, sir.

Felix Frankfurter:

Now, assume, as you indicate, assume that the second — the proceeding — the disciplinary proceeding had related solely to the second count.

You just indicated that Judge Lemmon held that that was not a given basis for review, is that right?

A. William Barlow:

No, I indicated that Justice Lemmon, at the very first hearing, indicated that the Ninth Circuit did not have jurisdiction over this matter for two reasons.

Felix Frankfurter:

So, the whole case — the whole case —

A. William Barlow:

That’s right, sir.

Felix Frankfurter:

I —

A. William Barlow:

For two reasons.

First of all, he said that there was no constitutional question involved.

Secondly, —

Felix Frankfurter:

The monetary amount?

A. William Barlow:

The monetary amount that the license to practice —

Felix Frankfurter:

Is there a difference —

A. William Barlow:

— had no price tag.

Felix Frankfurter:

In your view, is there a difference between the subject matter of the two charges so far as the jurisdiction of the Ninth Circuit was concerned?

Suppose the second charge stood alone.

Would that be reviewable on the basis on which they reviewed this case?

A. William Barlow:

Well, she got no punishment for the second charge.

Felix Frankfurter:

Well —

A. William Barlow:

If she got a punishment for the second charge, I would say that is was not reviewable for the very simple reason that I don’t think that the right to practice law carries with it a price tag.

Felix Frankfurter:

Well that’s — that’s the question that we have in other relations, namely, whether the monetary requirement giving jurisdiction is satisfied, which we struggled with that.

The Court has struggled with it for 50 years.

This is another case, but that would be equally true as to the second count — or, rather, the first count if he had been given the sentence of it, is that right?

A. William Barlow:

That’s right, sir.

Felix Frankfurter:

And so, we have a case here where there were finding of — there was a — there was a finding against the defendant below on both counts but sentence was imposed only on one count.

A. William Barlow:

That’s right.

Felix Frankfurter:

And therefore, there is no sentence here on the count subject to review, is that right?

A. William Barlow:

Not the sentence, no, sir.

Felix Frankfurter:

No sentence here, nothing — nothing —

A. William Barlow:

There’s nothing before the Court on that because there’s no sentence.

Felix Frankfurter:

There’s no sentence, but there was a determination of the issue, is that right?

A. William Barlow:

That’s right.

She was found guilty of gross misconduct on the two charges.

Felix Frankfurter:

Alright.

Earl Warren:

Mr. McTernan.

John T. McTernan:

Mr. Chief Justice, may it please the Court.

Although I did not have time yesterday to get to the jury point, I would like not to get to it today but to speak to the speech point because I think that’s the more important aspect of the case.

Mr. Justice Harlan, if I might reformulate the question you put to my adversary, I would say that the holding below was that it is unprofessional conduct for a lawyer of record in a pending case to comment upon that case in the manner petitioner did here because, and this is the guts of it, I think, that is an attack on the administration of justice.

And I think that is the question begging aspect of the findings of the courts below.

What is meant by “attack?”

“Attack” obviously embraces criticism and fair comment, and a lawyer’s utterances have to go beyond, it seems to me, criticism and fair conduct even of the conduct of the judge himself before he brings the Court into disrespect, before he interferes with a fair administration of justice, before he loses his First Amendment protection.

Didn’t you say, as certainly I understood you, on the trial in the District Court, you’re not supposed to talk about the cases, in public, being tried in the courts?

John T. McTernan:

I think that this is a convention which most lawyers observe.

It’s one that I observe in my practice.

I do this and I think lawyers do it because they are solicitous to avoid even the appearance of interfering with the fair administration of justice, but I don’t think that it is something that is compulsory upon lawyers just because they are in that situation because what they say may well not interfere with the unfair administration of justice or bring the Court into disrespect as a matter of fact.

And I think this is what we’re concerned with here.

Did it, in fact, do these things?

Now, I would also like to address myself to what I think —

Felix Frankfurter:

I don’t suppose you could prove that except by having the jurors say, “We heard about it over the radio or some gossip or the way things are in the air and travel,” and they really impose our judgment.

That’s the only way you could prove that.

John T. McTernan:

Mr. Justice Frankfurter, I think —

Felix Frankfurter:

Isn’t that true?

John T. McTernan:

— there is another way.

I think there is another way and I think it’s the kind of way this Court has used in many cases in the past.

What it does, it weigh the facts which the record show.

Let’s weigh them here, a speech given over and over or a hamlet of a thousand souls deep in a plantation where the people who listen to the speech were, largely, union members who had contributed to the defense of one of the defendants.

No publicity sought by this petitioner.

She spoke to a gathering in using words which at no time were directed to Judge Wiig by name or by implication except in criticizing a ruling that he had made.

So far as her intent may be relevant here and intent was considered in Pennekamp, for example, look at this situation of a lawyer of unblemished reputation for 18 years, appearing daily before this judge in defense of her time, bearing that kind of responsibility.

Is it reasonable to suppose that she intended to bring this judge into disrespect or to attack him in a way that goes beyond the fair criticism and fair comment?

I think, Your Honor, that it requires blowing this thing up into proportions all out of relationship to the facts of the record.We have an objective way of deciding whether this reasonably could have interfered with the fair administration of justice.

This Court has done it time and again, and it —

Felix Frankfurter:

That isn’t the —

John T. McTernan:

— can do it here.

Felix Frankfurter:

That isn’t the basis on which lawyers make it physical that would reasonably interfere with the administration of justice.

The basis is whether they behave according to the low standard by which even — even by the low standard by which the Bar likes to be judged.

John T. McTernan:

Your Honor —

Felix Frankfurter:

That’s what we’ve heard this morning.

John T. McTernan:

Your Honor, those standards set up the conduct whereby we decide whether this lawyer conducted himself unprofessionally, and the questions here come down to bringing the Court into disrespect or interfering with the fair administration of justice.

Now, I would like to address myself, if I may, to this concept, “administration of justice,” because I think that it embraces far more than what is involved in the adjudicatory process.

In the administration of criminal justice, we find a substantial area which is determined, in the first instance at least, by the prosecutor.

It is they who decide whether the case is going to be brought.

They decide whether it’s going to be a trial of doctrine, as the Fujimoto case was.

Remember, that this is a case that exploded along with all the others after the decision of this Court in the — in the Yates case.

They are the ones who decide to employ the conspiracy charge in its dragnet.

They are the ones that decide how remote and how much hearsay is going to be used and the — and they also decide, if it please the Court, whether they will employ or otherwise purchase a stable of witnesses who run about the country for these political prosecutions tailoring their stories to fit the facts as they’re required in a particular case.

It was these things, if it please the Court, that this petitioner was attacking.

This kind of administration of justice, she was attacking.

She was not attacking Judge Wiig and I say to you, because I’ve had a lot of experience with these cases, that in 1952, this sort of thing was reaching the proportions of a national scandal and I, as a member of the Bar, am proud of what my client did in attacking this kind of administration of justice and it took only a few more years for these things to reach the level of this Court.

And this Court did what was necessary in some of these respects to cleanse the springs of justice, and I am proud of that too.

And it is, I say, that a lawyer engaged in a trial of a case has the right to cry out against this kind of injustice in the administration of our temples and he has, therefore, a valuable and important contribution to make to public discussion.

And it is — it seems to me, it is to — it is to adopt the false ideals, false criteria of protecting the adjudicatory process, and I’m as concerned about that as Mr. Justice Frankfurter is, but I — it seems to me that we have this area around the adjudicatory process which closely affects it, in which the bar has a duty to speak out when that area around it so intimately affects and indeed, and sometimes pollutes and taints the very adjudicatory process —

Felix Frankfurter:

Mr. McTernan, I —

John T. McTernan:

With which we are concerned.

Felix Frankfurter:

I have done my crying in my days but not while I was actively engaged in the trial of a criminal trial.

I have done my crying in a number of cases well-known.

John T. McTernan:

I know that you have, sir, and I — I have intended no personal reference —

Felix Frankfurter:

I didn’t think you made any.

John T. McTernan:

— to you.

Felix Frankfurter:

I didn’t think you made any.

I’m trying to make the distinction between crying to the public and attending to a trial in court.

John T. McTernan:

Your Honor, I think, as I said yesterday, it would be one thing to cry to the public, “Judge Wiig is a crook” or “Judge Wiig is biased in favor of the prosecution.”

This is not what this petitioner did.

John T. McTernan:

This petitioner said, “The Government, the prosecutor is handing Judge Wiig a stacked deck.” That’s what it — he — what she was saying in effect.

Felix Frankfurter:

But the Judge has to rule on the evidence.

The Judge has to control counsel and prosecute on defendants.

John T. McTernan:

And nothing —

Felix Frankfurter:

The Judge isn’t a dummy.

John T. McTernan:

And nothing that she said interfered with his power or his right to do that —

Felix Frankfurter:

No, but what he said —

John T. McTernan:

— in the slightest respect.

Felix Frankfurter:

— related to it.

The Judge doesn’t sit there like an automaton.

John T. McTernan:

This gets us down to the nub of the thing, Mr. Justice Frankfurter, because what —

Earl Warren:

You have three minutes to finish now, Mr. McTernan.

John T. McTernan:

Thank you, sir.

I’ll finish in less.

Earl Warren:

It’s all right.

John T. McTernan:

I don’t think — it seems to me that it is false and artificial to say that the — because I think this is what it is involved in what you said, that because what she said in condemning the conduct of prosecutors and the methods of prosecutors dealt with a case that was pending, she was therefore interfering with the adjudicatory process.

I think that she was not.

She did not reach that and I think that we can rely on a good sense of our — of our citizens to know the difference between criticizing the conduct of prosecutors which disturb the adjudicatory process and attacking that process itself.

I agree that it would be a bad thing for a witness to go out and say — I mean, a lawyer to go out and say, “This man who is now testifying before this Court is all a matter of evil men and we intend to prove this and — and reach the minds of the juror or put pressures on the — on the courtroom in that respect.”

This is not what was done here.

I was — it was suggested yesterday that we’ve — that I made an over refined analysis of that speech.

I ask you to look at this speech in terms of the cc she said, the subject that she was talking about in her sentence, and break it down sentence by sentence and phrase by phrase, and you will not find — not only will you not find what the Territorial Court said that she was saying.

You certainly will not find what my opponent here says that there the — that she charge a conspiracy among the Judge —

Felix Frankfurter:

This is an abstract speech, wasn’t it, Mr. McTernan?

John T. McTernan:

No, sir, it was not an abstract speech.

It was an — it was a speech that went directly to issues outside the adjudicatory process.

Thank you, Mr. Chief Justice.