Wood v. Georgia – Oral Argument – March 29, 1962 (Part 2)

Media for Wood v. Georgia

Audio Transcription for Oral Argument – March 29, 1962 (Part 1) in Wood v. Georgia

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Earl Warren:

Mr. Leverett, you may continue your argument.

E. Freeman Leverett:

May it please the Court.

Before the recess, I was undertaking to show that, in this case, the Georgia Court of Appeals had in fact applied to a clear and present danger test.

Only seven months after the Wood decision, a decision in this case, the Court of Appeals stated in the Renfro case “but even constitutional courts are limited to the extent that there must be a clear and present danger to the administration of justice,” citing the Wood case as authority for that holding.

That decision was rendered by a judge of the same division of the Court of Appeals of Georgia as the judge who wrote the decision — the majority decision in the Wood case.

Coming now to the application by the court of that route, we might state as a matter of state substantive law that the grand jury, as an arm of the court and that its proceedings constitute a judicial proceeding.

Consequently, any effort to interfere, to influence the grand jury is punishable to the same extent, so the cases say, there’s an effort to influence or interfere with the petit jury.

Judge Field’s famous charge delivered in 1872 to the grand jury, he deplored the frequent efforts of “private prosecutors to intrude themselves into your presence to obtain or prevent to present one or indictment of parties.”

The significance attached to grand jury proceedings is very well borne out by the decisions of this Court with reference to jury selection.

The court has held that even though a defendant is convicted by a jury in which there was no discrimination and in which there was ample evidence to support the verdict of conviction.

Nevertheless, if there was discrimination in selection of the grand jury, the conviction will be set aside.

John M. Harlan II:

One thing bothers me.

How do you reconcile your state court’s decision as to count two which has gone unsubstantiated because no clear and present danger has been shown handing this letter of communication to the grand jury foreman?

Was its finding that the — there was a clear and present danger in the other two?

E. Freeman Leverett:

I do not — I do not attempt to explain it.

I think it’s wrong, but the state did not undertake to have it reviewed below and, of course, I say you can’t do so in this juncture.

John M. Harlan II:

Well, I know, but you’re defending the Counts 1 and 2, aren’t you?

E. Freeman Leverett:

Right.

Well, yes sir.

John M. Harlan II:

In the framework of Bridges, etcetera.

E. Freeman Leverett:

Right, sir.

John M. Harlan II:

The question I am putting to you is that, if there was no clear and present danger as your state court found involved in the Count 2 was reversed, what remains to be said in defense of the holding if there was a clear and present danger in respect to the other two counts in which you prevail?

E. Freeman Leverett:

I would simply say that I think the Court of Appeals erred in so holding the count two.

John M. Harlan II:

You would think what?

E. Freeman Leverett:

I would simply say that, in my opinion, the Court of Appeals erred in count two, in holding that there was no clear and present danger.

I think that there was.

But I think, there, our whole reasoning was based upon the assumption that they could consider only that particular letter and that on its face, that letter did not indicate that it would interfere, that it perhaps was bringing something new to the attention of the grand jury.

In some states do permit that so long as a communication to a grand jury does not deal with a pending matter if it undertakes to inject a new claim or a new charge that they commit that.

That has been upheld in some states.

I know of no particular authority in Georgia one way or another.

E. Freeman Leverett:

Efforts to influence grand juries are declared crimes by Title 18 Section 1504.

They are uniformly held punishable as contempt by the state cases.

Now, coming to the application of the test, the three decisions of this Court, applying the clear and present danger test, all involved entirely different factual considerations.

The Bridges, Pennekamp, and Craig cases involved criticism of judicial action already taken or statements which it most could be construed as efforts to influence the trial judge himself, not the lay jury and a great emphasis was placed upon that in concurring opinions in the Shepherd case, Shepherd versus Florida, that was reiterated time and time again in Mr. Justice Reed’s decision, I believe, in the Pennekamp case, the assumption being that judges are supposed to be superior individuals who can resist these external pressures.

This case is, in a sense, the first in which a full court has been faced with the very issue here.

The case most likely or liken to it is People versus Parker, an Illinois case where the defendant was convicted of contempt in sending the letter to the grand jury urging them to investigate the Chicago Tribune.

This Court granted certiorari and affirmed by an equally divided vote.

Even there, however, that case is not as strong as this because there, as I just previously said, was an effort to bring a new charge to the attention of the grand jury.

Here, there was an effort to obstruct and to interfere with a charge that had already been given to the grand jury by the court.

Another case which somewhat approaches this problem is Maryland versus Baltimore Radio Show.

In that case, the Maryland court, under its interpretation of the Bridges formula, it set aside the contempt conviction of a radio station.

This station had published or, rather, had broadcast extensively the fact, about two days after a brutal crime had been committed, that the accused had been arrested, that he had confessed, that he’d gone out and reenacted the crime, and that he picked up the bloody knife from underneath some leaves and they also broadcast his prior record.

The Maryland court, applying the Bridges formula, found that there had been no clear and present danger.

However, we say that case is distinguishable.

To begin with, the opinion denying certiorari by this Court was very careful to point out that the denial in no way was to be construed either as an approval or disapproval of a decision of the Maryland court.

Secondly, the broadcast was made the day following the arrest of the person.

It had a certain news value at that time.

The Maryland court expressly declared “that it was not concern with deliberate attempts to influence the outcome of a pending case for the reason that the statements there made were news reports and were not argumentative in nature.”

Now here, on the other hand, we say that this case is framed in the strongest possible light.

The proceeding was pending.

In one pending just in a technical lawyer sense.

It was pending in a realistic sense to the extent that the jury was then considering the very matter in issue.

These statements by their clear urging told the jury to do one thing when the court had just charged it to do something else.

Hugo L. Black:

Would it be contempt in Georgia for a man who wanted the grand jury to investigate an alleged crime to write them a letter telling them about it or is that customarily done?

E. Freeman Leverett:

I do not know, sir.

I cannot answer the question.

I don’t think there has been a case on that.

Earl Warren:

Mr. Leverett, do you make any distinction between this case and a case where a client or his lawyer makes a statement that what is under investigation that this is merely political persecution?

We read of that daily — almost daily in the newspapers whenever there’s anything that involves political situation.

The first thing they said is that its political persecution.

Earl Warren:

Now, is that any different from your case?

E. Freeman Leverett:

I think, of course, that one distinct difference is that there was no evidence here, no proof that this man was under investigation.

This charge of the court did not call any names.

It just said there’d been reports.

Earl Warren:

Well, maybe the — maybe it was — would be of his partner or his family or someone, some group that he belonged to.

Would there be any difference between that and this case?

E. Freeman Leverett:

I — there had been — there are some cases cited in the brief dealing with situations where comments were made pending a grand jury investigation.

I believe that one of them is either the Kilpatrick of the — one of the tribune cases in there in which they held if he went to a certain extent, that it would be.

In one case, I think he threatened to sue the grand jurors and they said that was very clearly a contempt of court.

It was an effort to influence a pending proceeding.

Thirdly — or fourthly, these statements were made in the same courthouse where the grand jury was sitting.

They were made by a high office of court whose duty was to attend upon and to assist the grand jury that he was seeking to influence.

They were actually read by members of the grand jury.

We submit that unless —

Hugo L. Black:

Do you think that that distinction would be enough to draw a difference on whether it is in contempt?

E. Freeman Leverett:

Which distinction?

Hugo L. Black:

Back in the members in the courthouse who maybe have a job.

E. Freeman Leverett:

It certainly puts the —

Hugo L. Black:

Frequently, the men who hold a political job are the very ones who make public statements about political matters.

E. Freeman Leverett:

Mr. Justice Black, I would answer that by saying that I believe that, to the mind of a layman, a statement made by a sheriff in the courthouse where the jury was sitting would be far more likely to have an effect upon a juror’s mind than if the statement had been made by someone who was not the sheriff or made at a distance from the court.

Hugo L. Black:

Suppose the lawyer makes this outside the court or inside the court.

Would it make any difference where the — judging him guilty of contempt whether he’s inside the court or outside the court, unless he had some way inside the court actually interrupt the court proceedings?

E. Freeman Leverett:

I think that it certainly would have some relevance.

Hugo L. Black:

Issued a state — he just issued a statement from the courtroom, public on the outside.

E. Freeman Leverett:

I think that it would.

I think that in the mind of — a lay juror could very well say that, gather some impression from it regardless of whether or not we, as lawyers, would.

The question here is the effect upon the jury, not upon — on a lawyer or a judge.

Hugo L. Black:

It wouldn’t make any difference on whether or not it was contempt where the statement came from, if it was a statement issued to the public.

I’m not talking now about this order or the motion or something actually inside the courtroom.

E. Freeman Leverett:

Apparently, the thought here was that we were getting into the now question, I presume, there.

Earl Warren:

I noticed here that, in the response, the petitioner says that before the judge gave his charge in this case that he summoned all of the news media to the courthouse and then, as soon as the charge was given, he distributed the — he had distributed copies to all of the newspapers and that the petitioner was merely answering in exactly the same way, publicizing his own side of the case the same way the judge had done his.

E. Freeman Leverett:

That’s his con —

Earl Warren:

But the way that in which the judge do it have anything to do with the guilt or innocence of the person?

E. Freeman Leverett:

I would not think so.

I think the purpose for the court’s doing that was — so that if anyone had any information, they could bring it into before the grand jury in the proper manner by going to the Solicitor General and saying that “I have some evidence.

Would you see if the grand jury would like me to testify?”

I think that would be the purpose of the court’s doing.

Earl Warren:

I see.

Is there anything in your law which says that’s the only way that a person can bring any information to the grand jury is through the Solicitor General.

E. Freeman Leverett:

I don’t think the law actually says that.

I think that has been perhaps the procedure.

I’m not even certain about that.

Of course you can always bring it before the grand jury by taking out a warrant.

Then, the grand jury inevitably will summon you and let you testify in support of your warrant.

Earl Warren:

But in — in Georgia, is it illegal for a citizen to personally bring information to the attention of the grand jury that he consider it should be investigated?

E. Freeman Leverett:

This is the first case that I know of that has actually dealt with this question.

I do not know of any case.

Earl Warren:

The reason I — the reason I asked you is because, in some states, it is —

E. Freeman Leverett:

That’s true.

Earl Warren:

— it is not to this — it’s — it’s a common practice for —

E. Freeman Leverett:

That’s quite true.

Earl Warren:

— for citizens to bring information to the grand jury.

In fact, they’re — they’re instructed that they should take cognizance of any complaints of that kind to come to them.

E. Freeman Leverett:

As to new charges, not as to charges already pending.

That, generally, I think, is —

Earl Warren:

Well, I don’t — in some states, I don’t think there is any differentiation between the two.

E. Freeman Leverett:

I was basing my assumption on the law review article in 39 Journal of Criminal Law.

I believe that —

Earl Warren:

Yes.

E. Freeman Leverett:

— leads to that question.

Earl Warren:

Yes.

William J. Brennan, Jr.:

Mr. Leverett, I gather, you think our decision in Sawyer has no relevancy to our problem here.

E. Freeman Leverett:

Indirectly, I will come to that, Mr. Justice Brennan.

I think it’s inevitable that the freedoms of speech will become — at some time, come into conflict with the necessity for a fair trial.

And, in this case, as in the case of any conflict between any other to freedoms, this Court has to weigh the situation in the light of all the circumstances.

As stated in the Pennekamp case, The comments must be appraised on a balance between the desirability of free discussion and the necessity for fair adjudication.

And, what is the interest here?

The interest of the State of Georgia and this is a very weighty interest, it’s no less important to Georgia than the threat from internal subversion.

The interest is two-fold, unhampered grand jury proceedings as a general matter.

On the Georgia law, it’s necessary to have a grand jury indictment to prosecute all felonies.

The defendant cannot even waive a grand jury indictment in a capital felony.

He can in non-capital felonies, in writing, waive the indictment but an indictment is an essential beginning point for a criminal prosecution.

And, of course, there’s a danger that improper influences creep into the grand jury room.

The indictment, itself, would be subject to being quashed on motion.

Secondly, we think that the other weighting interest that the State of Georgia has is the necessity of enforcing its voting laws.

And, I know — also, I think it’s important to point out here that the choice here was not between silence and the right of this petitioner to speak his views.

He very conceivably might have been on a different position entirely if he waited until after this grand jury proceeding was over.

But, let’s assume, in the words of the Bridges case, that freedom does not bare an inverse ratio or up to the timeliness of the assertions seeking expression.

Even here, I don’t think that that would make any difference for this reason.

The petitioner could have asked to testify before the grand jury.

I understand that he actually did.

That’s not in the record but that’s my understanding.

Earl Warren:

He did ask to testify?

E. Freeman Leverett:

I don’t know whether he asked.

I understood he testified.

Earl Warren:

Oh, he did testify?

E. Freeman Leverett:

He did appear.

Earl Warren:

Yes.

E. Freeman Leverett:

Well, let’s assume further that he asked and was refused.

Let’s assume even further that he, himself, was being investigated.

E. Freeman Leverett:

This Court has already passed on such a situation and found that there is no sufficient societal interest in that type of utterance.

In Hannah versus Larche, this Court held that no one has a right to appear before a grand jury and state his contentions because of the disruptive influence their injection would have on the proceedings.

And, what we’ve said we think would be sufficient, even as against a private person, a fortiori, whereas, here, the defendant was himself an officer of the court.

The Sawyer case, I think, comes into this case in this respect.

In that case, a lawyer was being disciplined for doing just what we have conceded that a private person could not, that is scandalizing the judge.

This Court did not pass on the constitutionality of it but it’s conceded.

But it seemed to assume that, as to a lawyer, that that would be a permissible rule of conduct to be applied.

That the — the court’s opinion turned on the fact that the utterances there were not aimed at the judge but were aimed in general at this mere fact and there was no effort to scandalize the judge in that particular proceeding.

And, also, another point about this dual personality of Mr. Wood, I think, Mr. Justice Brennan, that the opinion there stated that it’s immaterial whether or not Mrs. Sawyer was counsel in that particular case or not that the official transaction thing doesn’t have too much to do in that particular context.

Earl Warren:

Mr. Leverett, would it make any difference in your conclusion if — if Mr. Wood, instead of being the sheriff, had been a reporter or the auditor who are in no sense — who could in no sense become officers —

E. Freeman Leverett:

No, sir.

Earl Warren:

— of the court.

E. Freeman Leverett:

I think it makes it strong.

Earl Warren:

I beg your pardon?

E. Freeman Leverett:

I think it makes it stronger than he was.

I do —

Earl Warren:

Are you suppose —

E. Freeman Leverett:

— not think it’s —

Earl Warren:

— to say —

E. Freeman Leverett:

— essential that he have to.

Earl Warren:

Do you think it changes the constitutional question?

E. Freeman Leverett:

I think it changes it.

I do not think that if he had not been sheriff, that there was not sufficient evidence here to uphold the clear and present danger test.

We say that, because he was sheriff, that it makes it even stronger.

Now, even if we resurrect this Blackstone and Fox controversy and invest it with constitutional dignity, we would reach the same result because Fox says that, while these constructive contempt have not pry to Blackstone’s comments with reference to the Ollman case, had not been dealt with summarily that, historically and traditionally contempts by — contempts by officers of the court had been treated summarily.

And here, the court had instructed the jury to perform a stated function.

The defendant interjected himself and told them not to.

One last contention I think that should be discussed with respect to the application of this test, concerns the assertion made that you must show that the obstruction actually succeeded.

That’s not what this Court held in the Bridges case.

It held that you must show that there was a danger, not that the obstruction actually succeeded.

E. Freeman Leverett:

Now, petitioner says that the Pennekamp case holds that the danger must be shown by solid evidence but that’s not what the court said.

The court said that the circumstances likely to give rise to a clear and present danger test must be shown by “a solidity of evidence.”

If actual obstruction is shown, there’s no need for a rule phrased in terms of a danger because the evil itself, and not just its danger, would already, thereby, be a theatre colloquy.

One thing we certainly do not dispute and that is that the mere utterances themselves are sufficient in the same sense that, in a tort action, certain utterance is — would be conce — deemed libelous per se.

We say you have to consider the circumstances surrounding the time and manner the — the nature of the pending proceedings, susceptibility of the particular fact-finding body in any and all other circumstances which will have any relevance on the question as to whether the substantive evil would likely come about.

This was the procedure followed in the great cases of Bridges, the Pennekamp, and the Craig cases.

In the Pennekamp case — or rather, in the Bridges case, emphasis was placed on the fact that the statements were made after trial and did not communicate any information which the court did not already know anyway.

There was no effort to influence the jury.

In the Pennekamp case, you have substantially the same thing.

Criticism was a judicial action already taken, page 348.

It did not deal with rulings during the jury trial, also page 348.

And, the Florida court had expressly questioned the applicability of the Bridges rule to that particular case.

That’s at page 345 at footnote 6.

In the Craig case, the pertinent facts were that the publications were simply news reports or public business and it most could be construed as calculated to influence not the jury but the judge who the court said, “is supposed to be a man of fortitude, able to strive in a hearty climate.”

Petitioners also argue that a prejudicial and inflammatory charge should not be made the basis of contempt.

Well, to begin with, we do not concede that the statement of the charge of the court was prejudicial and inflammatory.

We say, on the contrary, that it was entitled probably to respect.

Well, even assuming arguendo otherwise, the law is that even an erroneous ruling of a court does not excuse contemptuous conduct.

This Court, therefore, let it link in the United Mine Workers case.

Now, there are three cases that are cited for this contention.

The Louisiana and the Nebraska cases simply hold that a lawyer should not be adjudged in contempt for filing a motion to caution indictment in which he alleges that that indictment was obtained as the result of an improper charge by the grand jury or by the court.

Obviously, we don’t contest that.

The Mississippi case simply held that a lawyer — that — rather than an indictment itself should be quashed where the judge had in effect, directed the return of an indictment by a charge which actually assumed that crimes had been committed.

The last contention that I come to deals with a point that, as we contend, has not been made in this case.

The demurrers — that is the issue of truth, the demurrers themselves raise the question that the petition for contempt did not allege that the statements made were false or untrue.

However, as I — as we’ve previously stated, we do not believe that his answer or his response raised the issue of truth.

That would be a plea on the Georgia practice.

It would have to be a little more formality attached to it in many some statements of opinion.

William J. Brennan, Jr.:

Was there any finding as to this or any, rather, statement of the — to that effect in the opinion?

E. Freeman Leverett:

Yes, sir.

William J. Brennan, Jr.:

Where is that?

E. Freeman Leverett:

It’s in the — in dealing with the rulings on the demurrers, page 67.

William J. Brennan, Jr.:

Thank you.

E. Freeman Leverett:

It’s a rule — it’s a ruling by the Court of Appeals only as a question of pleading.

That is the question.

Hugo L. Black:

May I ask you if you think it would make any difference if Wood, here, a sheriff, was a lawyer, had been running against the judge at that time and had made the exact remarks he made in a campaign speech against the judge.

E. Freeman Leverett:

If he made those statements in a campaign —

Hugo L. Black:

Precise — statements to be made in a campaign against the judge and in the campaign they have mentioned.

E. Freeman Leverett:

If he had made it at this particular time —

Hugo L. Black:

Made it by the same time while he’s a candidate, running together.

Giving as an example why this judge is not fit to be a judge in his judgment.

E. Freeman Leverett:

I think that that would be different for this reason.

There, the purpose —

Hugo L. Black:

Do you think that it could be cited and convicted for contempt?

E. Freeman Leverett:

I would not know go so far as to say that he couldn’t, but I think it would certainly be a stronger case for this reason.

There, the purpose of the statement was to — for a political campaign for office.

Here, it was obviously for the purpose of obstructing a grand jury.

Hugo L. Black:

Was it?

Why do you say that?

It might be that he had a view of the public servant citizens.

He wanted to call attention to things that he thought were injurious to the public.

Certainly, that would be one argument, wouldn’t it?

E. Freeman Leverett:

It would be an argument but I don’t concede the validity of it.

Hugo L. Black:

Do you think if he then saw that the law was being flagrantly used or thought he saw it’s flagrantly used for the purpose of bringing about and brought in judgment for a large number of people, he commented on that publicly in which you couldn’t draw an inference that maybe he did it because he was a public servant citizen?

E. Freeman Leverett:

I don’t think you could in this case.

I think you might in your hypothetical case because, there, he’s running.

He’s in a race.

He’s actually in a race.

But, here, he was not.

He had already announced he wasn’t running.

Earl Warren:

No.

It says here —

E. Freeman Leverett:

Primary.

Earl Warren:

Respondent shows that he was directly interested.

This is on page 38 number 9.

Respondent shows that he was directly interested in the outcome of said election not only as a private citizen, but also as one who was an announced candidate for public office in the general election to be held in November 1960.

E. Freeman Leverett:

That’s right.

Earl Warren:

And it was a primary for that election.

E. Freeman Leverett:

(Inaudible)

Earl Warren:

And then, he goes on to say that respondent felt and believed that the language which was employed in the charge to the grand jury was of such a nature that it tended to create or emphasize issues likely to have a drastic impact for the outcomes and democratic primary.

So, wouldn’t that put it in exactly the same position as the hypothetical that Justice Black asked you about?

E. Freeman Leverett:

No, sir.

I don’t think so.

I think that, in one case, the man was actually out campaigning against the judge.

That was the hypothetical output to me.

In this case, he was not running in this — in this primary election.

He says a campaign was in afoot, but he was not a part of it.

Felix Frankfurter:

Since you’re tolerant toward argument, you might even say it was an argument that that would make it only worse.

E. Freeman Leverett:

Possibly sir.

In any event —

Hugo L. Black:

The fact that he was a candidate, do you think that will make it worse?

Felix Frankfurter:

That’s what I mean.

Hugo L. Black:

The fact that he was a candidate against him, do you think it would be worse for him to point out what he thought was the judge’s decision?

E. Freeman Leverett:

He was not a candidate against the judge.

Hugo L. Black:

I mean, are you agreeing to — I understood you’d agree to some question or to some suggestion or comment that was made to the effect that it will make it worse for him to make a statement about the judge if he was a candidate for judge.

E. Freeman Leverett:

No, sir, I didn’t say —

Felix Frankfurter:

All I ask you is whether you might not call it an argument, whatever it’s worth.

E. Freeman Leverett:

Yes, sir.

Getting back to this issue of truth, the Georgia practice requires that a party make an offer of proof and that a special assignment of error be presented in the bill of exceptions.

That was not done in this case.

E. Freeman Leverett:

The issue was not raised in the petition for certiorari to the Supreme Court.

That alone was failed.

You’ve got to have a special assignment bearing petition for certiorari.

The first time that he sought to make this issue was in his petition for reconsideration that he filed in the Georgia Supreme Court that was too late at that juncture.

He al — he mentioned it in his application for stay to this Court, but he did not mention it in his petition for certiorari.

Under Rule 23, I believe it can’t be considered for that reason.

Now, he goes on to say that he was prevented from raising by certain amendments that were filed to the pleadings, and the primary thrust of his argument there is that the petition was amended to make it clear that if he did undertake to prove truth, that he would be held in con — direct contempt in that respect.

That’s not true.

This amendment that was filed was filed after a hearing on demurrers when, for the first time, the demurrers of the petitioner were filed in which he said that the petition is fatal because it fails to allege that this conduct create a clear and eminent danger.

Subsequent to that, the court granted an extension of time for amendment.

This amendment was filed five days later, on August the 10th, for the purpose of meeting this — what the Solicitor apparently feared might be a defect in his petition.

He amended it by setting out the circumstances surrounding the making of the utterances.

Then, he concluded in this paragraph with the language that’s narrowed out upon his foreclosing the issue of truth by saying that the making of these utterances under these circumstances, in effect, was in it of itself a clear and present danger to the administration of justice.

So, we say that he has not been foreclosed from making this issue as a defese.

The Court of Appeals ruled on it solely as a question of pleading and if he had actually made it, his offer of proof might have failed for a number of reasons and the issue would not be here in any event.

And, we think that he’s trying to inject into this case a hypothetical issue that has not been presented or decided below.

Earl Warren:

Mr. Kramer.

Milton Kramer:

The issue of truth was injected, as Your Honor pointed out in the response on page 38 of the record.

He did respond saying that he truly and sincerely believed what he said, and that was accepted as evidence by stipulation.

I would like to close this comment on the response that was made to a question that the Chief Justice presented to Mr. Ed — Mr. Leverett.

The Chief Justice asked him whether it is common practice in Georgia for charges to the grand jury to be in open court, and the answer was yes.

It is not common practice in Georgia or anywhere else to summon the members of the press to be present and to have verbatim copies available in chambers for distribution.

I think he —

William J. Brennan, Jr.:

It’s not a common practice, you say, in Georgia?

Milton Kramer:

It is not common practice in Georgia or, I believe, anywhere.

William J. Brennan, Jr.:

Well, I used to charge grand jury as a state judge and it was not an uncommon practice of mine.

Milton Kramer:

Well, in Bibb County, it is not the common practice to summon the press to be present and to distribute in chambers, copies of what the charge was.

This —

William J. Brennan, Jr.:

We used to have them all mimeographed.

Milton Kramer:

Well, it is not the practice in — the answer — the answer to that was given to the question should be supplemented with the statement that it is not common practice to summon the jury and distribute copies in the judge’s chambers.

Felix Frankfurter:

Respectable — respectable federal judges has been known to summon the press and, in their presence, hold the court under sentence they’re about to impose or have imposed.

Milton Kramer:

Perhaps the political nature.

Felix Frankfurter:

I’m not suggesting that I think well of it.

I’m suggesting what is done.

Milton Kramer:

Yes, but the political nature of the charge is highlighted by the fact that it was done here when it is not done otherwise.

Earl Warren:

Very well.