Taylor v. Hayes – Oral Argument – March 18, 1974

Media for Taylor v. Hayes

Audio Transcription for Opinion Announcement – June 26, 1974 in Taylor v. Hayes

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Warren E. Burger:

We’ll hear arguments next in 73-473, Taylor against Hayes.

Mr. Sedler, you may proceed when you’re ready.

Robert Allen Sedler:

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

There are two basic parts to this case.

One, going to the exercise of the summary contempt’s power, the other going to the right to trial by jury in cases of criminal contempt.

With respect to the first part, the petitioner contends that this Court should hold that even if the trial judge is going to be allowed to proceed summarily, there is a minimal entitlement to a hearing, notice of a charge, opportunity to respond and judgment.

Secondly, he would contend that in the circumstances of this case, the trial judge, the respondent here was so personally embroiled in controversy with the petitioner that he could not impartially sit in judgment on the multiple contempt charges that he leveled against him.

We would also ask this Court to consider, the issue having been briefed by the parties, whether the summary contempt power itself is unconstitutional.

If the Court is going to hold —

William H. Rehnquist:

Was that raised in the Kentucky Court of Appeals?

Robert Allen Sedler:

Your Honor, not specifically.

The — nor was it specifically raised as such in the petition for certiorari.

It seemed to me that as we were developing these arguments before the Court, it was impossible to separate the inherent unfairness in the exercise of the summary contempt power, from question such as the right to a hearing, the embroilment of a particular judge.

If I may draw an analogy, it seems that long ago, this Court has recognized that the summary contempt power is arbitrary in its nature and is subject to abuse and over the years it’s worked out various refines.

For example, under Federal Rule 42 (a) the charges must be specified.

It’s developed a doctrine of embroilment in controversy of bias.

Now, we’re asking the Court to come up with still another correction on the doctrine such as to make it clear that there is the right to a hearing.

It seems to me that the Court in so doing is merely treating symptoms, in that the Court might wish to consider in this case going to the disease itself.

And the disease, we feel is the summary contempt power which combines in it the inherently inconsistent functions of prosecutor, judge and jury and the same individual who is necessarily involved in the events leading up to the charge and this is why —

Thurgood Marshall:

And how would the Court maintain decorum?

Robert Allen Sedler:

Pardon, Your Honor?

Thurgood Marshall:

How would the judge maintain decorum in his courtroom?

Robert Allen Sedler:

By citing the offending lawyer or party for contempt.

Thurgood Marshall:

Do you think that’s enough?

Robert Allen Sedler:

I think, Your Honor, that that should be a sufficient deterrent in all, but the most serious cases of persistent obstruction, which all of the empirical evidence indicates is virtually non existent.

Thurgood Marshall:

Well, aren’t you right now pretty being hunky you don’t need that for this, do you?

Robert Allen Sedler:

This is true, Your Honor, we do not need it for this case, but I honestly feel that the problem will remain.

The problem of the embroiled judge.

The problem of the non-embroiled judge, who may try as best he or she can impartially to sit in judgment, but still cannot separate his role from prosecuting judge and trial judge.

I think that it is necessary to — If I say so, in order to ensure proper respect for the administration of justice in this country, we must put the responsibility where it lies and that responsibility is on the Court itself.

Robert Allen Sedler:

The summary contempt power I would submit produces far more disrespect for the administration of justice than any act, a disruptive client or a lawyer could do and I think the exercise of that power in the case at bar shows the disrespect that can result.

Warren E. Burger:

Are you suggesting, are you suggesting that the existence of this summary contempt power in some way explains or excuses the conduct of this lawyer in this case?

Robert Allen Sedler:

Well, Your Honor —

Warren E. Burger:

Doesn’t this provoke him to act that way?

Robert Allen Sedler:

I would take the position of going back one step before.

We — in the first place I would respectfully dispute that there was any improper conduct on the part of the present petitioner.

The Court did not grant certiorari on the issues of whether the conduct constituted criminal contempt.

But I would submit that the petitioner here did nothing more than vigorously defend to the best of his ability his client charged with a capital offense.

But armed with the summary contempt power, the respondent in this case could proceed as an activist seeking combat, knowing that any time he got the worst of the exchange he could always invoke the summary contempt power.

I think that comes out most clearly on contempt number three where the trial judge had said to the petitioner and counsel for the other defendant, you may have this blackboard in the courtroom and you may write on the blackboard the inconsistent statements that the tape of the key prosecution witness showed and counsel and co-counsel for the co-defendant did so.

At the end of this, the trial judge suddenly says, “Mr. Sheriff, remove the blackboard from the room.”

Petitioner files an objection.

The trial judge overrules him with a sarcastic comment.

The time to — right in front of the jury, the time to argue your case is at the close of the evidence.

The petitioner responded and replied, “I certainly keep that in mind Your Honor.”

The trial judge though had the summary contempt power.

He says contempt six months in prison.

Now this I submit is just fundamentally unfair.

It’s also interesting to note that the case that I think this part is concerned about so called courtroom disruption, the so called Chicago Seven case.

When it was tried before a judge appointed by Your Honor who was not certainly and personally embroiled in controversy, this judge found that every act of the lawyer defendants and every act of the non-lawyer defendants accept coming into Court with judicial robes that he find contemptuous was a response albeit an excessive one to preemptory action on behalf of the judge.

I think the danger of the existence of the summary contempt power maybe threefold, yet encourages judges to act arbitrarily and tyrannically knowing that they can always come down with the summary contempt power on a lawyer.

Secondly, it inhibits, it has a showing effect on vigorous and effect to that because if the lawyer was found by the trial judge to have overstepped the line, the trial judge doesn’t have to warn or anything.

The trial judge is the trial judge did in this case and just say contempt.

This causes a lawyer to pull his punches.

Thirdly, I think that the exercise of the summary contempt power causes the public to lose confidence in the administration of justice.

When the public sees a judge sitting up there as judge, jury and prosecute him and meeting out sentences totaling four and a half years, this I do think brings across the notion, well, what kind of justice is there if a judge can do this and so I think it is in the interest of the administration of justice that the summary contempt power with its inherent unfairness be given a well deserved determent by this Court.

William H. Rehnquist:

Mr. Sedler you say that the summary contempt power makes a lawyer tend to pull his punches up.

I take it if the judge is going to retain any control of the proceeding, there has got to be something that makes counsel for each side to pull his punches on occasion, the Court has indicated their particular line of questioning will be prohibited or something like that?

Robert Allen Sedler:

Well, I think that the — as the study of this order in the Court in the case the judge does this by maintaining control over the proceedings as the judge.

If the lawyer —

William H. Rehnquist:

But how does he maintain that control?

Robert Allen Sedler:

Well, by ruling on —

William H. Rehnquist:

Well, what if counsel doesn’t follow his rule?

Robert Allen Sedler:

Then the judge can say counsel, I’ve heard enough argument on this point, let us proceed.

William H. Rehnquist:

Well, what if counsel continues to argue?

Robert Allen Sedler:

At that point, the judge has the power and should have the power, we don’t dispute that, to cite the counsel for contempt.

There is no challenge to criminal contempt.

William H. Rehnquist:

But no punishment can be meted out during the course of those proceedings?

Robert Allen Sedler:

On the spot, on the spot.

And I would submit that just as any other social — antisocial conduct is considered deterred by the possibility of punishment at a later date, the same should be true of lawyer misconduct.

In other words, the judge will have cited the lawyer for contempt.

The lawyer knows that as a result of that citation, you will face a criminal charge of contempt with possible imprisonment and possible bar disciplinary proceeding.

Thurgood Marshall:

Doesn’t he know that when he is admitted to the bar?

Robert Allen Sedler:

Well he is aware.

Thurgood Marshall:

Isn’t he?

Robert Allen Sedler:

He doesn’t have much choice.

I mean the summary contempt power exists.

Thurgood Marshall:

Well, I mean when he takes his oath?

Robert Allen Sedler:

Well, when he takes his oath he is aware.

Thurgood Marshall:

He knows that if he gets out of line he is going to be punished.

Robert Allen Sedler:

And punished summarily.

Thurgood Marshall:

No.

I didn’t say that.

As he knows he is going to be punished.

Robert Allen Sedler:

Or can be punished —

Thurgood Marshall:

Now you say by putting additional one you are saying, we’ll try you later.

So I mean now he has got two warnings.

Well, meanwhile you are going to get it.

Robert Allen Sedler:

I think that that would be enough.

What frightens me Your Honor —

Thurgood Marshall:

That the two warnings would be enough, the first was not enough.

Robert Allen Sedler:

Well, I think the problem is not so much of question of warning.

I may say with all due respect, I think we’re focused on the wrong person.

We’re focused on the lawyer.

I would respectfully suggest —

Thurgood Marshall:

Well you want the lawyer to hold judge in contempt?

Robert Allen Sedler:

Well there is an adherent —

Thurgood Marshall:

You want to give him that power?

Robert Allen Sedler:

I think that that the problem is that judges can act arbitrarily without any realistic sanction whatsoever and I don’t think we ought to allow the summary contempt power which simply encourages them to act arbitrarily.

The real judges that will do so.

One of the things that all the empirical evidence shows is that the summary contempt power is very rarely used by judges.

Most judges can maintain order and decorum in the courtroom without any resort to the summary contempt power at all.

But the legitimate interest, obviously the compelling interest if you will, in maintaining courtroom order can accurately be maintained by citing the lawyer for contempt.

Now in the extremely rare case where a lawyer is engaged on a course of persistent disruption, finding him guilty of contempt isn’t going to do any good either.

By that time the trial as turned into the shambles and the Court should declare a mistrial.

What’s very interesting in this case is that while the respondent castigates the conduct of the petitioner and says in his brief that it surely must have prejudiced his client’s right to a fair trial, the respondent not only did not declare a mistrial, but when counsel for the co-defendant claimed that the petitioner’s conduct prejudiced their clients right to a fair trial, the trial judge rejected that contention and of course that decision was affirmed by the Kentucky Court of Appeals.

Warren E. Burger:

Well, then your client moved for a mistrial?

Robert Allen Sedler:

He moved for a mistrial on numerous grounds.

Warren E. Burger:

On this ground?

Robert Allen Sedler:

No, because my counsel — my client, I would submit and I think the record will reveal, was trying to vigorously defend his client in a highly emotionally charged situation.

He was coming out against a very hostile trial judge who gave, I think the record will reveal, the prosecution of great deal of leeway.

The prosecution’s case took four days.

When the case for the both defendants came up, it only took a matter of three days.

The trial judge kept saying lets move it on, let’s get it over.

You can’t call this witness, he has nothing to add.

Let’s get it on.

Let’s move it over.

Six of the eight contempts occurred during the defense part of the case.

This is the time of the case where the attorney is most vulnerable, where the attorney has to do everything that he can to protect his client, to present his case to the jury, all the while battling with the trial judge so to speak.

It’s in this part of the case that the lawyer is most apt to step over that line, the line where permissible advocacy may constitute obstruction of justice.

William H. Rehnquist:

Mr. Sedler, I think the way many of us learned to practice law was that if the trial judge was unfair to you or you felt that was hostile to you, you felt you have to abide his rulings, your remedy was by appeal that you could get that reversed on appeal?

Robert Allen Sedler:

Your Honor, when you take an appeal, you run into the problem of substantial error.

The dynamics of the trial show that what may seem an egregious error at the time when viewed by the appellate court in context with a presumption of validity of a conviction will frequently be found to be harmless error and the dynamics of the trial require that the lawyer vigorously defends his client against what he believes, the hostile actions of the trial judge.

Now again, we are not saying that the lawyer cannot be punished for criminal contempt.

When the lawyer’s conduct is contemptuous, he can and should be punished for criminal contempt.

All we say is that this should occur in accordance with the time tested requirements of due process of law.

That the trial judge should not be able to proceed summarily that no matter how he tries, he cannot divorce himself from the fact that he is involved in the events leading up to the trial.

Moreover, in a criminal proceeding in which the accused faced originally four-and-a-half years imprisonment and now it was cut down to six months so as to defeat the claim of the jury trial, you have the trial judge performing the necessarily inconsistent functions of prosecutor, jury and judge.

I think that is one of the crucial things that’s wrong with the criminal contempt power.

Our system of criminal procedure is adversary and accusatory.

The judge, jury and prosecutor, each have a well defined role to play in the process.

We suddenly for this shibboleth of preventing disruption combine it into a single individual who is necessarily involved in the events leading up to the charge and I think no matter how you put it, it’s just fundamentally unfair and that in light of contemporary standards of due process as recognized by this Court, the summary contempt power should be declared invalid.

Certainly at a minimum in this case, the Court should hold that there is a right to a hearing, and by a hearing I mean a separation, events on the spot, a separation of the contempt proceedings from the other events involved in the trial.

The lawyer has to be defending the interest of his client.

He can’t put his own interest —

Thurgood Marshall:

But suppose a lawyer is contemptuous to the Supreme Court of the State, what court would sit on that one?

Robert Allen Sedler:

I failed to see Your Honor — well, let me — let’s assume that the lawyer filed a false brief or pleading or something —

Thurgood Marshall:

No, no he stood up in open court and just did all the things you and I know can possibly be done, an absolute contempt to the Court.

You say some other court should do it, now what other court?

Robert Allen Sedler:

Assuming in Kentucky, we have a procedure by which when all of the judges of the Court of Appeals are disqualified from hearing the case because of interest or involvement, the Government can appoint pro tem special judges to hear that contempt.

Thurgood Marshall:

And that would be the protection that the Supreme Court would get?

Robert Allen Sedler:

Well, that the terms of protection —

Thurgood Marshall:

Well suppose somebody is contemptuous in this Court, now what court will operate then?

All I’m talking about, why do you say that all summary contempts must be washed out with one stroke of the pan, why all?

Robert Allen Sedler:

I guess that the best answer that I would give to Your Honor is that the exercise of the summary contempt power is inconsistent with those time tested principles of due process because it does combine the inherently inconsistent functions of prosecutor, jury and judge in the same instance — in the same person and it also is the person who is necessarily involved in the events.

And the other answer that I would give is that the Court has long held that judicial power must be exercised by the means least at — a reason of — by least, not the least adequate but the least extreme means that are necessary to achieve the objective.

That would indicate an answer to Your Honor’s question that maybe there would be no choice, but that the Supreme Court or an appellate court would have to exercise the summary contempt power, but that’s not where the problem arises, that’s not where the cases come up.

The cases come up from trial courts and so I would say that the means, the power must be the least adequate to deal with the problem presented then this would justify holding that the summary contempt power is unconstitutional when exercised by the trial judge, necessity justifies the power, if at all, necessities —

William J. Brennan, Jr.:

Well I gather, Mr. Sedler, to that extent your position except it would invalidate Rule 42 (a), would it not?

Robert Allen Sedler:

Yes, Your Honor.

William J. Brennan, Jr.:

And also the underlying statute?

Robert Allen Sedler:

I don’t believe that the underlying statute — no, we are not challenging criminal contempt, we are not challenging the federal or state statutes that provide for criminal contempt.

All we are saying is —

William J. Brennan, Jr.:

Well I thought the federal statute dealt by definition, doesn’t it, with what is a criminal contempt?

Robert Allen Sedler:

Yes, and we are not questioning what is a criminal contempt.

All we are saying Your Honor is that criminal contempt should not be punished summarily.

William J. Brennan, Jr.:

Alright.

So what you are saying is you’d invalidate only 42 (a)?

Robert Allen Sedler:

42 (a).

William J. Brennan, Jr.:

And all contempts would have to — the process would be under 42 (b)?

Robert Allen Sedler:

Under 42 (b) is preferably with the jury and this I think moves us into the second issue in this case and here again —

Harry A. Blackmun:

Mr. Sedler before you get there, just the — as a matter of curiosity, is your client Mr. Taylor a member of the bar of Kentucky?

Robert Allen Sedler:

Yes, Your Honor.

Harry A. Blackmun:

This wasn’t a pro hac vice case?

Robert Allen Sedler:

Oh no!

Mr. Taylor has long been a member of the Kentucky bar and defended some hundred capital cases, extremely well-known to the trial judge.

Harry A. Blackmun:

If this conviction holds up, is he likely to be disbarred?

Robert Allen Sedler:

He certainly will be subject to disciplinary action which could reach out disbarment proportions.

I think that this is one of the reasons which shows why criminal contempt is a serious offense whenever a lawyer is involved and —

William J. Brennan, Jr.:

Excuse me Mr. Sedler, if you follow a Rule 42, if that’s what you say constitutionally would be required 42 (b) procedure whether state or federal, what issues would be determined at the hearing?

Robert Allen Sedler:

Whether the conduct constituted criminal contempt.

William J. Brennan, Jr.:

I see, the judge in whose presence the conduct was committed could not say that’s contempt and —

Robert Allen Sedler:

He would cite, he would cite and specify —

William J. Brennan, Jr.:

He wouldn’t cite just for determination whether —

Robert Allen Sedler:

Oh!

It’s somewhat analogous to a grand jury indictment.

William J. Brennan, Jr.:

Right and you’d have a — you’re coming now that you’d say that the constitution would also require a jury trial?

Robert Allen Sedler:

Well, depending on the view that the court takes.

My — the point that I — the submission that I would make is that — is that contempt of court as defined by recent decisions of this Court such as the little case, necessarily constitutes a serious offense within the meaning of the trial by jury guarantee because it is the kind of offense, this material, intentional obstruction to the administration of justice that is likely to be regarded as contrary to the ethics of the community and secondly, there are some subsidiary arguments.

Many of the criminal contempt cases involved lawyers.

Robert Allen Sedler:

Lawyers do suffer collateral consequences which should be taken into account.

Moreover, the court itself is sitting in judgment on a contempt charge.

If justice must serve the appearance of justice, there is something again seriously questionable about a court sitting in judgment on the charge of contempt of court.

But I think that those are subsidiary arguments.

I think the major argument is that contempt is a serious offense because it is so regarded by the society as a whole.

And I think in this regard it is because criminal contempt has been defined by this Court not merely to include so called disrespect to the person of the trial judge, but as requiring an actual intentional material obstruction to the administration of justice.

At least the Court should hold that where there is the possibility of substantial imprisonment, let’s say beyond the ten days approved in the Dyke case, that contempt —

William J. Brennan, Jr.:

You (Voice Overlap) only ten days would be substantial imprisonment for a lawyer?

Robert Allen Sedler:

Well, I would argue Your Honor in light of Argersinger of that any imprisonment —

William J. Brennan, Jr.:

I would think so.

Robert Allen Sedler:

— makes the charge a serious one within the meaning of the Sixth Amendment’s guarantee of right to trial by jury.

It seems to me, going on to that point, that the Sixth Amendment speaks in clear terms of all criminal prosecutions.

And just as the Court has held that an attorney, I am sorry, attorney is required in all criminal prosecutions so too a jury trial should be required.

The only difference is the historical genealogy of the right to trial by jury.

But when the Court has been dealing with the Seventh Amendment’s right to trial by jury in civil cases, it’s disregarded historical practice, even though under the clean up doctrine enacting the word historically equitable, the court could award damages without a jury, this Court has held that every time there is a claim for damages, there must be the right to trial by jury.

It seems to me that the terms of the Sixth Amendment are just as clear and that regardless of the historical practice, the clear thrust of the Sixth Amendment is to require the right to trial by jury in every case where any imprisonment is involved.

Potter Stewart:

We’re dealing here though with the Fourteenth Amendment, are we?

Wasn’t this a state trial?

Robert Allen Sedler:

Yes, Your Honor but as I read Duncan, it holds that the same standards apply — same jury standards apply to the state courts.

Potter Stewart:

Yes, but the Court has never held that the Fourteenth Amendment incorporates or absorbs or whatever the figure of speech maybe, the right to jury trial to be found in the Seventh Amendment has it?

Robert Allen Sedler:

In civil actions, no Your Honor.

Potter Stewart:

No.

Robert Allen Sedler:

Your Honor, I will reserve for rebuttal time.

Warren E. Burger:

Mr. Sedler, let me go back to response you gave to Mr. Justice Rehnquist if I followed you.

What you said was that the right to appeal is not a genuine and meaningful remedy if the Court has overreached.

You did not fill in beyond that.

I might take it that your view is that since the right to appeal for the overreaching or arbitrariness of the judge is not a meaningful remedy that then the lawyer is free to try to out shout the judge?

Robert Allen Sedler:

No.

Warren E. Burger:

Well, then what are the alternatives?

Robert Allen Sedler:

Well, I think if I were to be put, I was answering Mr. Justice Rehnquist question in regard to showing effect into the fact that the lawyer who must try to protect the rights of his client maybe shielded in his efforts to protest trial errors at the time that they occur.

Robert Allen Sedler:

And my point was that merely because he has a right to appeal trial errors, it doesn’t mean that he can ignore the trial errors at the time that he has — they have occurred.

His duty to his client requires him to try to correct the trial error before the judge because those errors cumulatively could have an impact on the trial even though taken by themselves, they might not constitute substantial and reversible error.

Warren E. Burger:

Would you think it is not contempt if after a judge, the trial judge has ruled and announced his ruling if the lawyer insists upon continuing argument of the ruling which has been closed?

Robert Allen Sedler:

I think that the line is drawn where the trial judge says, “Counsel, I’ve heard enough argument on this point, proceed.”

So one of the things that I think appears from the record in this case, Your Honor was at no time that the trial judge say during the trial, “Mr. Taylor, I want you to stop this behavior, I want you to stop this line of argument.

You are heading towards the line where advocacy becomes contempt.”

There was sort as if the judge was waiting and waiting and then either something hit him personally or he thought the line was crossed and he pounced on contempt, as he put it in his tirade from the bench, “I have you nine counts of contempt.”

And I think that during the course of the trial, yes, there comes a time when the trial judge must be able to say to the lawyer, argument is stopped on this point.

If you have any further thing you want to say to the appellate court, say it in the record.

But I want to leave this matter and get on to something else.

And I think at that point, if the lawyer proceeds he could be cited for a contempt and although this court has not granted certiorari on the substantive contempt charges, I think a cursory examination of the charges almost on their face will reveal that they do not constitute criminal contempt under the standards promulgated by the Court.

Thank you, Your Honor.

Warren E. Burger:

Very well, Mr. Sedler.

Mr. Triplett.

Henry A. Triplett:

Mr. Chief Justice and may it please the Court.

With the Court’s permission, I will deal first with the question raised in this petition as to whether or not the petitioner Taylor was given a right to be heard during a proceeding that resulted in his conviction for criminal contempt.

It is our position and we think the record completely sustains it that all during the trial and in each time the petitioner were cited for a contempt by Judge Hayes that he was indeed given a reasonable opportunity to be heard and in most instances he took it.

So it is our position here that this is really not a question of law, but a question of fact as to whether or not this 15-volume transcript sustains a position that Taylor was indeed given a chance to be heard on the contempts and whether or not he was given the right to state the mitigating factors which if no allocution does exist in a summary contempt proceeding he would be entitled to give.

It is our contention that the record does indeed show that each instance that he gave the mitigating circumstances of which he was aware, these included a marriage, a funeral, working without pay, long hours of being tired.

So first it is our position that the record sustained a hearing.

Potter Stewart:

I missed to what you said a moment ago.

Working without pay long hours and being tired and —

Henry A. Triplett:

A marriage and a funeral, and that sort of thing — things that caused him to be tired and things that —

Potter Stewart:

Who, who is tired, who is tired?

Henry A. Triplett:

Mr. Taylor.

And keep in mind, Mr. Taylor was there, there were two or three other lawyers representing the co-defendant in the trial and of course the Court would be the principles involved in this case.

So we say the record is replete with that.

Second we say, that not only do we say that the record does sustain that he was heard as we understand the decisions of this Court starting with Terry and all the discussion that has occurred since Terry about the validity of Terry, it nevertheless remains that in Terry, this was a case where David Terry knocked the marshal down after the marshal started to eject his wife from the courtroom.

And in affirming or rather refusing to grant a writ of habeas corpus, this Court said that there was a right of instant apprehension and imprisonment with no allocution.

Coming forward to the case involving Judge Medina, the Sacher case although this Court took that case solely on the question of the bias of Judge Medina and his qualification to hear the contempt involving the Attorney Sacher.

Henry A. Triplett:

The premise of the case was that there was no allocution as it is explicitly stated in the federal rules that is the right of — to speak at the time of the sentencing.

However, in Sacher the same kind of allocution occurred as occurred here.

Throughout the nine-month trial there was continuous dialogue between Judge Medina and the lawyers involved and there couldn’t be of much doubt that everybody was pretty aware of what was transpiring and that this Court did not set aside that conviction because of a right — because of no hearing.

And this is — it seems to be the hearing, the procedure all through in the Sarafite case, the Ungar-Sarafite case.

Again, there was a lot of dialogue in the trial between Judge Sarafite and Unger who was on the witness stand during the trial of Hulan Jack and I think the hearing took two days — placed two days after the trial, Ungar appeared with a lawyer.

The lawyer moved for continuance and Judge would give him a continuance, he withdrew from the case and then Ungar, all he said was “I am not feeling well and I’d like a continuance,” and that was the allocution in that case and this Court held that conviction sufficient.

Now, next I would like to turn very quickly to the right of a trial by jury in this case.

The petitioner stands convicted of criminal contempt.

The highest court in the Commonwealth of Kentucky has said that his ultimate sentence to be served is six months.

We say, taking the literal language in the Bloom against Illinois case where the petitioner got 24 months for offering a will alleged to be forged and which was reversed by this case and keeping in mind that the Bloom against Illinois case, the opinion was released on May 28, 1968, the same day as Duncan against Louisiana.

It is said under the rule in Cheff, when the legislature has not expressed a judgment as to the seriousness of an offense fixing a maximum penalty which may be imposed, we are to look to the penalty actually imposed as to the best evidence of the seriousness of the offense.

Harry A. Blackmun:

Mr. Triplett, I am just a little curious.

I realize that Kentucky Court of Appeals has spoken in this case, but apart from that, under Kentucky law, would the sentences initially imposed be consecutive or concurrent?

Henry A. Triplett:

As they were initially opposed by Judge Hayes, they were consecutive.

Harry A. Blackmun:

Consecutive.

Henry A. Triplett:

After they were imposed, Judge Hayes corrected his judgment with Court of Appeals of Kentucky’s permission and eliminated the requirement of consecutiveness and it was the ultimate judgment of the Court of Appeals that this meant six months.

Although we bring the question of the right of the trial court and of the Court of Appeals to permit this correction and of Judge Hayes to do it, this point is conceded by petitioner on page 21 of his brief when he says in addition, the respondent makes much of the fact that an appellate court has the power to modify sentences, this petitioner does not dispute.

Harry A. Blackmun:

In that connection, do you have appellate review of sentences in Kentucky?

Henry A. Triplett:

Yes, sir.

The right to modify and eliminate and reduce contempt sentences in my mind is really not open to seriousness of —

Thurgood Marshall:

Mr. Triplett, when the Bar Association considers this case, will they consider it at one six months or more?

Henry A. Triplett:

One six months, Mr. Justice Marshall.

Thurgood Marshall:

On how many counts?

Henry A. Triplett:

On eight counts.

Thurgood Marshall:

Well, they would be considered guilty on all the accounts.

Henry A. Triplett:

Yes, sir.

The Court of Appeals of Kentucky has affirmed it and this Court has refused to grant cert on that question.

And if the Bar Association does that, they haven’t yet, I don’t know that they will, they would have the right to do it, but if they do, do it, you are exactly correct that they would consider the eight findings of contempt as burden only of any disciplinary action that might ultimately be taken.

I think I would have to state that to you affirmatively.

Warren E. Burger:

Well, what you’re saying there really is no more than that they would act on the full record?

Henry A. Triplett:

That’s correct sir.

That’s correct Mr. Chief Justice.

Now —

Potter Stewart:

Mr. Triplett is there any limitation in Kentucky law as to the sentence that can be given by a trial judge for criminal contempt?

Henry A. Triplett:

No, Mr. Justice Stewart there was none.

This was some what up in the air of although the ten was — the trend was away from it, but the Court of Appeals case of Taylor against Hayes declared the limiting statute unconstitutional as being abridgment on the Court’s power to function.

So that this point in time Mr. Justice, there is no limitation.

We used to have the 30-hour rule, 30-hour or $30.00 rule that began to be eroded some years back and they cleared it up completely in this case.

Potter Stewart:

So now, so far at least as theoretical, how are those, the trial judge could send somebody to be locked up for the rest of his life for criminal contempt.

Henry A. Triplett:

Theoretically, that was true as it was true in Bloom against Illinois, yes sir.

Warren E. Burger:

Mr. Triplett, let me back a little bit for something you touched on in response to a question partly from Mr. Justice Stewart.

At what stage and as to which of the particular episodes did Mr. Taylor respond saying that his conduct was accounted for by the fact there had been a funeral, a wedding and a lot of other things.

Was that — were you drawing together a whole series of things?

Henry A. Triplett:

I was drawing a series of things, isolated portions of it.

It was all wrapped up in his final argument to the jury when he said this —

Warren E. Burger:

Where are you now?

Henry A. Triplett:

On page 119 of the transcript Mr. Chief Justice, where petitioner says this.

“I want to try to pose, I want to apologize to the Court if I had been in temper and state to the Court that would only been because of the desire to see justice done in the clearer conviction of believe that my client is innocent.

I want to tell you that life has moved on since this case began.

There has been a wedding in my family, a funeral of a dear friend of mine” and those things are interspersed of throughout of the trial Mr. Chief Justice.

And we say that all of this were example of petitioner at one point during the trial as to be excused on a Saturday afternoon and the transcript will support this, so he could go to this wedding of a relative who was flying in, and we also contend that those transcripts show a great deal of consideration toward petitioner’s problems by the trial court.

Wrapping up this jury in a matter very quickly.

In Frank versus United States in 1969, the — this Court affirmed the judgment where Mr. Frank got a three-year suspended sentence for a stock fraud case.

In the Cheff and Schnackenberg case in 1966, this was where, Mr. Cheff violated the cease and desist order and three judges of the Seventh Circuit tried him and gave him six months.

This Court held it was a petty offense.

So we think that what happened here has well within the decisions of this Court.

Now, Mr. Chief Justice and may it please the Court, I would like to turn to what I consider the third phase of this case as I understand the questions upon which this Court granted certiorari and that relates to the alleged or biased hostility of Judge Hayes as to render him unqualified to pass judgment on these contempts.

We start with Mayberry.

Nothing similar to Mayberry occurred here.

There was no vilification by Taylor or Judge Hayes.

Henry A. Triplett:

There were no epithets hurled at Judge Hayes.

Second, we come to Offutt.

There is nothing similar to what occurred in Offutt here.

Thurgood Marshall:

What about the phrase by “Now, I got you?” [Attempt to Laughter]

Henry A. Triplett:

I beg your pardon Mr. Justice I didn’t hear you.

Thurgood Marshall:

What about the judge saying “Now, I got you?”

Henry A. Triplett:

We say that that occurred after the judgment of contempt had been — wait a minute sir, I don’t recall anything in this trial or this transcript that said — where Judge Hayes said, “Taylor, now I got you.”

Thurgood Marshall:

Well, that might not be the exact words, but it’s close to it.

Henry A. Triplett:

I dispute that Mr. Justice Marshall.

I dispute that Judge Hayes said that.

Thurgood Marshall:

Well, I have to find it.

Henry A. Triplett:

Alright sir.

Now, let me be very clear and honest.

At the time he imposed the sentence, there was language in there, he said I have got you on nine contempts.

Thurgood Marshall:

Well, that’s what we are talking about?

Henry A. Triplett:

But I read that in a different context Mr. Justice Marshall as saying, “Now I’ve got you.”

Thurgood Marshall:

Well, now I got you on nine counts.

Henry A. Triplett:

That’s correct sir.

Thurgood Marshall:

I stand corrected.[Laughter]

Henry A. Triplett:

Yes, sir.

Thurgood Marshall:

I stand corrected.

Henry A. Triplett:

I don’t mean to be argumentative on —

(Inaudible)

Henry A. Triplett:

That is correct sir, that’s exactly what he said.

Now, it is our position Mr. Justice, and may it please the Court that at the time of sentence, the trial that occurred on the matter of contempt and at some point in imposing the punishment, a judge must have the last say and the last word.

The right to be heard, we say had occurred.

The reasons for mitigation and defense had occurred.

It is not uncommon for judges at the end of a trial and I am not speaking only of lawyers at this point, I am speaking of a defendant.

Suppose a judge hears a particularly aggravated case that just shocks of conscience of any human being, it is not uncommon for state and federal judges and I have heard them both do it, to just absolutely take the punishment apart or defendant apart when he imposes sentence.

Otherwise, there wouldn’t be much reason for the disparity in some of the sentences that are imposed.

Henry A. Triplett:

With the sentencing power in the federal court, certainly the aggravating circumstances of a particular crime or a set of circumstances will cause a federal district judge to impose a larger sentence than a lesser sentence or even to probate.

And we say that just because a judge comes down hard on the defendant at the time he imposes a sentence is not a predisposition of hostility, particularly when we claim that the bias or a plain bias throughout this 15-volume record is just absolutely not present.

And that’s absolutely what we feel about it.

Let me address myself, if I may just for a moment, excuse me sir, [Attempt to Laughter] if I may to this proposition that whenever a summary of contempt occurs that the trial judge must recuse himself and allow it to be heard by another judge.

Let’s take a very practical question and Mr. Justice Marshall alluded to it in a question to Mr. Sedler, when he asked which Court would hear this.

Let’s take Father Groppi’s case in Michigan, where the people were led through the legislature.

And let’s assume that the Michigan general assembly was in joint session, the Senate and the House.

They cite Father Groppi for contempt.

Now the fact that they saw this, they heard this, which legislative body is going to try that contempt.

Let’s assume that if a trial judge is going to have to recuse himself in other cases, let’s see now whose going to do that.

Is it going to be his brother trial judge in the same district or the same circuit or in the same state?

Must it go outside the state?

Is it going to occur as it occurred in the Codispoti case which I understand is going to be heard here next week.

Codispoti got his second judge and what he said to the second judge was about as bad as what was that.[Voice Overlap]

Excuse me sir?

Warren E. Burger:

No question.

By the way in the Groppi case, that was Wisconsin —

Henry A. Triplett:

Yes sir, Excuse me, I’m sorry Mr. Chief Justice.

Warren E. Burger:

In the Groppi case, I think the opinion indicated rather clearly that had they seized him immediately and proceeded with contempt, there might have been a different result.

It was because Groppi went away and then without notice to him.

Henry A. Triplett:

He was in jail for disorderly conduct and two days later without the present hearing, notice of papers they imposed a punishment, that is exactly right Mr. Chief Justice.

But would the bias or the disqualification be any less because Father Groppi led the group pass the Wisconsin legislature you say, then the contempt occurring before a trial judge.

We think not and we think that this displays some fallacy in the proposition that they must be heard by another judge or by some other forum and perhaps that can be dealt with in this case.

We think that the most important factor and the most important protection of a judge and of a lawyer involved in the criminal contempt case is that it appears on the transcript.

There is a record that an appellate court can do.

And this is somewhat followed by a — stated by the Weisberg case out in the Ninth Circuit that when these things appear on the record, this prevent a judge without any court reporter, without any witnesses must do it in public, prevents any abuse in that respect.

Bringing my argument to an end here, we think that for two-week period and including the ultimate part here, Judge Hayes did a pretty good job in this trial if he’d imposed a punishment on Taylor at the time the contempt is heard — were heard, he could claim a psychological disadvantage to hurt his client.

If he didn’t cite him for contempt and did nothing then they would be a claim that he discreetly searched the record after all this occurred.

What he did was at that the time they occurred was to cite him, permit him to be heard in practically all instances and then at the end of the trial, he imposed the punishments that he thought proper and then he corrected them as the petitioner has conceded, he had a right to do.

We think that it is highly necessary for the integrity of the judiciary which protects the freedom of us all, that this judgment be affirmed.

Warren E. Burger:

Thank you Mr. Triplett.

You have a few minutes left Mr. Sedler.

Robert Allen Sedler:

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

I think I have a comment on two points.

Mr. Triplett says that the petitioner had the right to respond.

The record of course which Mr. Triplett refers, shows that this simply was not so, but more importantly what we are in agreement on is that there was no hearing insofar as the petitioner had a chance to respond to them was only on counts two and three.

The response was strictly for the record and it occurred at a time when the petitioner was required to argue substantive questions to protect the interests of his client.

At least the court should hold that due process requires a hearing in the sentence that the summary contempt, if this Court is going to allow it to go on, be separated from the other events in the case that the trial judge specify the charge which never occurred here.

He didn’t specify the charge until three months later, specify the charges, listen objectively to argument, to matters in defense or mitigation and then make a ruling.

With respect to the matter of embroilment what the respondent says as well, ignore my remarks at the time of sentencing, but there is no comment about everything else that occurred during and after the trial.

This — of course, it is a burden to prove embroilment.

Here, the respondent was not to very subtle.

He says to the petitioner before the jury, I am going to make an example of you.

I am going to do something the bar says they should have done years ago.

It’s true that there were no epithets hurled at the judge by the petitioner, but it was just a reverse when the judge sent — when the petitioner argued I may have four or five months of my life tied up in this case.

The judge said “Acidly before it’s over you might have a lot more than that,” provoking all the time, “You’re putting on the show, I don’t like your utters.”

Then he said, “You’ve accused me of rigging the jury,” all this occurs very early and throughout the trial.

And then there is the acts of the judge where he says “You can’t practice in my court anymore.”

He refused to hold a bail hearing.

He used to admit the petitioner to bail.

Now if this does not show embroil then what I think the Court must be saying is that there is no such concept of being embroiled in controversy.

But it does raise the question of the — what I call the inherent unfairness of the exercise of the summary contempt power.

This case does present both narrow and broad issues.

The petitioner has not only argued his own case and has not limited himself to the narrow issues that would result in a reversal of the petitioner’s conviction.

The petitioner believes that the issues presented in this case go far beyond the present petitioner and the present respondent and have deep implications for the administration of justice itself.

Petitioner would ask this Court to reverse his conviction.

Thank you Mr. Chief Justice.

Thank you Your Honors.

Warren E. Burger:

Thank you gentleman.

The case is submitted.