JUDGES: Fairchild, Cummings, and Pell, Circuit Judges.
CUMMINGS, Circuit Judge.
After this Anti-riot Act case against seven of these defendants was submitted to the jury, acting under Rule 42(a) of the Federal Rules of Criminal Procedure, the trial judge summarily convicted them and their two trial attorneys of contempt of court in violation of 18 U.S.C. § 401(1). All nine now appeal from the findings of contempt and the sentences imposed upon them.
In the certificates of contempt, the court found that the 5-month trial was "marred by continual disruptive outbursts in direct defiance of judicial authority by defendants and defense counsel." It found that "throughout this case * * * the behavior of the defendants was aimed at baiting the judge and inciting and harassing the U. S. Attorneys in an attempt to stop the trial." The entire record of the trial was made part of the contempt proceedings.
The contempt sentences ranged from 2 months and 18 days for defendant
Weiner to 4 years and 13 days for Attorney Kunstler. Many of the arguments
raised by the parties were also raised in the contempt case against Bobby
Seale, who was a co-defendant in the Anti-riot case until a mistrial was
declared as to him, resulting in his severance. In the interest of brevity,
we will incorporate the rulings in our opinion in United States v. Seale,
461 F.2d 345, when dispositive of arguments herein.
Electronic Surveillance as to Seale
Appellants argue that their contempt judgments should be reversed because of the Government's allegedly illegal electronic surveillance as to Seale. As co-defendants and counsel, they have no standing to complain that their Fourth Amendment rights were violated where, as here, their conversations or conversations on their premises were not involved. Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176.
We have seen in United States v. Seale, supra, that the only conversation possibly bearing on his contempt is contained in the first paragraph of the earliest of the three logs. There was nothing in any of the logs which could conceivably be deemed an intrusion into councils of the defendants other than Seale. There not only was no "direct intrusion * * * into attorney-client discussions" (Hoffa v. United States, 387 U.S. 231, 233, 87 S. Ct. 1583, 1584, 18 L. Ed. 2d 738), but also there was no indirect intrusion, however remote, that could possibly give appellants standing to complain of these logs under the Fifth or Sixth Amendments. Cf. Granello v. United States, 386 U.S. 1019, 87 S. Ct. 1367, 18 L. Ed. 2d 458; United States v. Fannon, 435 F.2d 364, 368 (7th Cir. 1970).
If United States v. United States District Court for Eastern District of Michigan, 444 F.2d 651 (6th Cir.), certiorari granted, 403 U.S. 930, 91 S. Ct. 2255, 29 L. Ed. 2d 708 (1971), is reversed by the Supreme Court, then under the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. § 2511(3)), the surveillances were lawful and need not be disclosed for this additional reason.
We hold that the Seale logs require neither reversal nor dismissal of
the contempt charges against appellants.
Trial Before Another Judge
As a result of the Supreme Court's opinion in Mayberry v. Pennsylvania, 400 U.S. 455, 91 S. Ct. 499, 27 L. Ed. 2d 532, the Government has conceded that the contempt convictions of all of these appellants, except the two trial counsel, should be reversed and remanded for consideration by another trial judge. The convictions of counselors Kunstler and Weinglass are asserted to stand on a different footing. We disagree.
The Government argues that the posttrial summary contempt punishment
of the lawyers in this case was proper under Sacher v. United States, 343
U.S. 1, 72 S. Ct. 451, 96 L. Ed. 717. That case involved a trial judge's
summary contempt conviction, after trial, of several attorneys who had
represented eleven Communist Party leaders convicted of Smith Act violations
in the celebrated Dennis trial. n1 It is clear that the lawyers'
contemptuous conduct in that case included an attack upon the trial judge
personally. 343 U.S. at 4-5, 72 S. Ct. 451 and 343 U.S. at 33-35, 72 S.
Ct. 451. (Frankfurter, J., dissenting). n2 Nevertheless, the Supreme
Court majority upheld the post-trial summary procedure, deciding that "summary"
as used in Fed.R.Crim.Pro. 42(a) was not synonymous with "instantly" but
rather referred to the informality of the procedure. 343 U.S. at 9, 72
S. Ct. 451. If the trial judge could have cited the lawyers instantly,
he was entitled to do so at the end of the trial since "no possible prejudice
to them can result from delaying it until the end of the trial if the circumstances
permit such delay." 343 U.S. at 10, 72 S. Ct. at 455. Responding to the
argument that post-trial summary procedure was inappropriate where the
conduct in question included a personal attack on the judge, Mr. Justice
Jackson, speaking for the Court, said Rule 42(a) contained "no such limitation"
and found any distinction between personally offensive contempts and impersonal
contumacies illusory. Predicating the applicability of Rule 42(a) upon
such a distinction, he stated, "would nullify, in practice, the power it
purports to grant." 343 U.S. at 12, 72 S. Ct. at 456.
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n1 See Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137.
n2 Dissenting Justices Black and Frankfurter additionally characterized
the trial judge's behavior in terms suggesting the embroilment found present
in Offutt v. United States, 348 U.S. 11, 75 S. Ct. 11, 99 L. Ed. 11 (1954).
343 U.S. at 17, 34, 72 S. Ct. 451; see United States v. Meyer, 149 U.S.
App. D.C 212, 462 F.2d 827, 836, n. 16 (1972).
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Were Sacher the Supreme Court's latest pronouncement on the subject,
we would affirm the trial judge's use of summary procedure in the instant
case since, as the Government argues, the factual postures of the two cases
are closely akin. However, as Judge McGowan has convincingly elaborated
in United States v. Meyer, 149 U.S. App. D.C. 212, 462 F.2d 827 (1972),
cases subsequent to Sacher have considerably undermined its vitality.
n3
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n3 See Comment, Invoking Summary Criminal Contempt Procedures -- Use
or Abuse? United States v. Dellinger -- The "Chicago Seven" Contempts,
69 Mich.L.Rev. 1549, 1568-1569 (1971). Sacher has also met with
strong criticism in commentary. See, e. g., Id. at 1565-1568; Goldfarb,
The Contempt Power, 228-230 (1971); Note, Summary Punishment for Contempt:
A Suggestion That Due Process Requires Notice and Hearing Before an Independent
Tribunal, 39 S.Cal.L.Rev. 463 (1966); Comment, Federal Procedure: Effect
of Delay in Summary Punishment for Criminal Contempt Under Rule 42(a),
Federal Rules of Criminal Procedure: Sacher et al. v. United States, 343
U.S. 1, 72 S. Ct. 451, 96 L. Ed. 717 (1952), 37 Cornell L.Rev. 795 (1952).
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In Offutt v. United States, 348 U.S. 11, 75 S. Ct. 11, 99 L. Ed. 11,
the Supreme Court forbade the use of summary contempt power post-trial
by a trial judge who had become "personally embroiled" with the lawyer
whom he cited. 348 U.S. at 17, 75 S. Ct. 11. The Court, speaking through
Mr. Justice Frankfurter, held under its "supervisory authority over the
administration of criminal justice in the federal courts" (348 U.S. at
13, 75 S. Ct. at 13) that a trial judge so embroiled could not proceed
summarily after the completion of the trial but must recuse himself to
allow another judge to adjudicate the contempt. n4 The Court said: "The
pith of this rather extraordinary [summary contempt] power to punish without
the formalities required by the Bill of Rights for the prosecution of federal
crimes generally, is that the necessities of the administration of justice
require such summary dealing with obstructions to it." 348 U.S. at 14,
75 S. Ct. at 13. The thrust of the Offutt opinion is that where
the trial judge waits until the conclusion of trial to cite for contempt,
the necessity to preserve order in the courtroom cannot sanction summary
procedure. On the other hand, the "fair administration of justice" (348
U.S. at 17, 75 S. Ct. 11) will not tolerate a judge who has become personally
embroiled with trial attorneys to sit in judgment on their conduct, at
least after the trial is over, merely because that course is more convenient,
more economical and less time consuming than having another judge conduct
a hearing. See United States v. Meyer, 149 U.S. App. D.C. 212, 462 F.2d
827 (1972).
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n4 In Offutt the Court relied heavily on the pre-Sacher
case of Cooke v. United States, 267 U.S. 517, 45 S. Ct. 390, 69 L. Ed.
767. Cooke was concerned with an indirect contempt by an attorney
consisting of a prima facie contumacious letter requesting the judge to
recuse himself in further cases involving the attorney's client. The Supreme
Court unanimously held summary contempt procedure unwarranted in the case
of this indirect contempt. (The decision antedated the advent of the Federal
Rules of Criminal Procedure.) However, the Court went further and directed
that another judge be assigned to hear the contempt adjudication on remand
since the attorney's conduct consisted of a personal attack on the trial
judge. Significantly the Sacher majority did not discuss Cooke,
ostensibly because it was pre-Federal Rules of Criminal Procedure. See
343 U.S. at 8, n. 14, 72 S. Ct. 451.
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In Ungar v. Sarafite, 376 U.S. 575, 84 S. Ct. 841, 11 L. Ed. 2d 921, a witness, who was also a lawyer, in a state criminal trial was held in contempt for his conduct on the witness stand. The trial judge presided over the post-trial contempt proceeding. The witness-contemnor argued this was improper because his remarks were a personal attack on the judge which "necessarily, and without more" disqualified the trial judge from conducting the contempt hearing. 376 U.S. at 583, 84 S. Ct. 841. The Supreme Court rejected the argument and upheld the summary procedure in that case, concluding from its own examination of the record that the witness' conduct "was disruptive, recalcitrant and disagreeable commentary, but hardly an insulting attack upon the integrity of the judge carrying such potential for bias as to require disqualification." 376 U.S. at 584, 84 S. Ct. at 847. Moreover, contrary to the situation in Offutt, the Court found that the trial judge had not become personally involved with the petitioner. 376 U.S. at 585, 84 S. Ct. 841.
In Mayberry v. Pennsylvania, 400 U.S. 455, 91 S. Ct. 499, 27 L. Ed. 2d 532, the Supreme Court required recusal as a matter of due process where [**10] the trial judge was the victim of an insulting personal attack by a pro se defendant and waited until the conclusion of the trial to cite for contempt. In that case the Court did not find the judge was an "activist seeking combat" as in Offutt, but on the other hand, could not say from its examination of the record that Mayberry's remarks were merely "disruptive, recalcitrant and disagreeable commentary" as were the remarks in Ungar. Rather the tenor of the bitter, vilifying remarks was such that an inevitable potential for bias was generated. 400 U.S. at 465-466, 91 S. Ct. 499. In the Court's words:
" [a] judge, vilified as was this Pennsylvania judge, necessarily becomes embroiled in a running, bitter controversy. No one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication." 400 U.S. at 465, 91 S. Ct. at 505.From a distillation of the foregoing authorities, two significant propositions emerge. First, a distinction can and must be made between contumacious conduct generally and contumacious conduct which is "apt to strike 'at the most vulnerable and human qualities of a judge's temperament.'" Mayberry v.Pennsylvania, supra at 466, 91 S. Ct. at 505. If, as Mr. Justice Jackson had intimated in Sacher, this distinction was illusory and unworkable, the Court would not have carefully appraised the record in Ungar to conclude "we cannot say there was bias, or such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused." 376 U.S. at 588, 84 S. Ct. at 849. The Court in Mayberry would not have reached an opposite conclusion on examination of the record. And the Court would not in Offutt have stated that it is "important that district judges guard against [the] easy confusion" of "identify[ing] offense to self with obstruction to law." 348 U.S. at 14, 75 S. Ct. at 13. n5
n5 Some commentators have suggested that Mr. Justice Jackson was correct
in concluding that it is realistically impossible to distinguish between
personally insulting contempts and those which are not personal affronts,
but in consequence argue for disqualification in every case of delayed
citation. See The Supreme Court, 1970 Term, 85 Harv.L.Rev. 1, 298-301 (1971);
Note, Summary Punishment for Contempt: A Suggestion That Due Process Requires
Notice and Hearing Before an Independent Tribunal, 39 S.Cal.L.Rev. 463,
466 (1966). One state intermediate court has so held. People v. Kurz, 35
Mich.App. 643, 192 N.W.2d 594, 602-603 (1971). However, the Supreme Court
has not overruled Sacher but rather has consistently refused to
"imprison the discretion of judges within rigid mechanical rules." Offutt
v. United States, 348 U.S. 11, 15, 75 S. Ct. 11, 14, 99 L. Ed. 11, or to
make broad generalizations. Mayberry v. Pennsylvania, 400 U.S. 455, 463,
91 S. Ct. 499, 27 L. Ed. 2d 532. It is clearly committed to reviewing the
character of the defendant's conduct to determine the necessity for disqualification.
Ungar v. Sarafite, 376 U.S. 575, 583-588, 84 S. Ct. 841, 11 L. Ed. 2d 921.
"It is, of course, not every attack on a judge that disqualifies him from
sitting." Mayberry supra, 400 U.S. at 465, 91 S. Ct. at 505.
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Second, if the conduct of the defendant includes a personal attack
on the trial judge carrying such potential for bias that he is not "likely
to maintain that calm detachment necessary for fair adjudication" Mayberry,
supra, 400 U.S. at 465, 91 S. Ct. at 505, the trial judge must disqualify
himself if he waits to act until the conclusion of the trial. When the
trial proceedings have terminated, the need to proceed summarily is not
present. In this situation, the possible prejudice to the accused as well
as the diminution of the quality of justice in the public eye n6 overrides
any economy of effort that would be achieved by summary procedure. Insofar
as the Court in Sacher saw no need to differentiate between a trial
judge's ability to act instantly and his ability to cite for contempt after
the trial is ended, even where personal attack is involved, it has since
altered its focus. See Mayberry v. Pennsylvania, supra; Harris v.
United States, 382 U.S. 162, 164-167, 86 S. Ct. 352, 15 L. Ed. 2d 240;
Offutt v. United States, supra.
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n6 "Justice must satisfy the appearance of justice." Offutt, supra,
348 U.S. at 14, 75 S. Ct. at 13; Mayberry, supra, 400 U.S. at 465,
91 S. Ct. 499.
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The argument is made that Sacher has special vitality where the contemnor is a lawyer. Mayberry was not a lawyer. Certainly the fact that the defendant is an attorney can have no bearing on the need to distinguish between an obstruction to justice and a personal affront which makes bias probable. But the Court in Sacher adverted to the desirability of avoiding instant action against a contumacious attorney because that course "is not unlikely to prejudice his client." 343 U.S. at 10, 72 S. Ct. at 455. In Mayberry the Court recognized that "instant treatment of contempt where lawyers are involved may greatly prejudice their clients," but cautioned that "it may be the only wise course where others are involved," 400 U.S. at 463, 91 S. Ct. at 504, as others were in the case at bar.
In any event, the wisdom of deferring action against a lawyer has nothing to do with the requisites of due process when the trial judge "does not act the instant the contempt is committed, but waits until the end of the trial * * *." Mayberry, supra at 463-464, 91 S. Ct. at 504. That is, while the possible prejudice to the lawyer's clients may counterbalance the need to preserve order in the court through immediate action, this consideration simply has no bearing on whether the trial judge may himself proceed summarily or must call in another judge to take his place when he has already decided to wait. See United States v. Meyer, 149 U.S. App. D.C. 212, 462 F.2d 827, 840, n. 21 (1972).
Consequently, all that remains is for us to assess in the light of Mayberry the character of the lawyer's conduct as it appears from the record.
Our study of this record convinces us that under Mayberry the
trial judge was disqualified from passing upon the contempt specifications
against these lawyers because their attack upon him did carry "such potential
for bias as to require disqualification." As in Mayberry, the insults
leveled by Messrs. Kunstler and Weinglass against the trial judge were
apt to strike "at the most vulnerable and human qualities of a
judge's temperament," thus requiring "a public trial before a judge other
than the one reviled by the contemnor[s]." 400 U.S. at 466, 91 S. Ct. at
505; see also Cooke v. United States, 267 U.S. 517, 539, 45 S. Ct. 390,
69 L. Ed. 767; Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11,
99 L. Ed. [**15] 11. n7
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n7 Therefore, it is unnecessary for us to decide whether the lawyers'
conduct had its reflex in the judge so as to require disqualification under
the "embroilment" standard.
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Here the trial judge was the recipient of numerous and unprecedented attacks and insults by both trial counsel. These attacks would have affected any judge personally. For example, no judge could remain impartial toward Mr. Kunstler after the judge's honesty and integrity were assailed as follows.
"Mr. Kunstler: I want to comment on this, your Honor, because I think what you have just said is about the most outrageous statement I have ever heard from a bench, and I am going to say my piece right now, and you can hold me in contempt right now if you wish to."You have violated every principle of fair play when you excluded Ramsey Clark from that witness stand. The New York Times, among others, has called it the ultimate outrage in American justice.
* * * * * *
"I have sat here for four and a half months and watched the objections denied and sustained by your Honor, and I know that this is not a fair trial. I know it in my heart. If I have to lose my license to practice law and if I have to go to jail, I can't think of a better cause to go to jail for and to lose my license for --
* * *
"I am going to turn back to my seat with the realization that every thing I have learned throughout my life has come to naught, that there is no meaning in this court, and there is no law in this court --
* * *
"-- and these men are going to jail by virtue of a legal lynching --* * *
"-- and that your Honor is wholly responsible for that, and if this is what your career is going to end on, if this is what your pride is going to be built on, I can only say to your Honor, 'Good luck to you.'"
The record abounds with other instances.
Although Mr. Weinglass engaged in lesser attacks upon the trial judge, the need for recusal is also present as to him. For example, Weinglass remarked that "The door in this courtroom seems to swing in one direction [against the defendants]." He also referred to the trial judge as "inhumane," called the judge's action "disgraceful," and possibly accused the judge of "dishonesty." (It is unclear whether he was referring to the judge or to the prosecutors.) Moreover, the trial judge characterized Weinglass' remarks as "insulting," "sarcastic," and on one occasion accused him of making an "invidious comparison between the treatment the court afforded the witnesses called by the defendant as opposed to the treatment afforded witnesses called by the Government." Additionally, it would be artificial to view the conduct of either defense counsel in isolation from that of the other since defense counsel mutually supported each other's activities or, for that matter, in isolation from the concededly disqualifying disrespect of the other defendants since the conduct of all the defendants here was inextricably interwoven. The trial judge himself felt that all the defendants worked in concert at "baiting the judge" and implicated the two lawyers in this nefarious purpose as is evidenced in the common preface of the contempt certificates.
Finally, there is really no necessity to attempt to calculate precisely the potential for bias generated by the conduct of [*397] these attorneys. The record reveals that their conduct tended to be productive of actual prejudice toward them on the part of the trial judge. In such a situation it matters not whether the judge's reaction was understandable or not; Mayberry must govern.
Accordingly, while regretting the necessity therefor, we conclude that
all 9 contemnors must be tried before another judge. n8
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n8 As in United States v. Seale, supra, the new judge would be
chosen by the Executive Committee of the court below, pursuant to its local
rules, but it would have to exclude judges who have officially expressed
an opinion on this case.
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Jury Trial
For the reasons given in our opinion in United States v. Seale, supra,
each appellant whose sentences aggregated more than 6 months was entitled
to a jury trial. Since defendant Lee Weiner received only a 2 months and
18 days sentence, he is not so entitled. Bloom v. Illinois, 391 U.S. 194,
88 S. Ct. 1477, 20 L. Ed. 2d 522, and Cheff v. Schnackenberg, 384 U.S.
373, 86 S. Ct. 1523, 16 L. Ed. 2d 629. No indictment was required of any
individual, even those whose sentences aggregated more than one year. United
States v. Bukowski, 435 F.2d 1094 (7th Cir. 1970), certiorari denied, 401
U.S. 911, 91 S. Ct. 874, 27 L. Ed. 2d 809. On remand, the guidelines established
in United States v. Seale, supra, will govern. As noted in that
companion case, the inferential findings and descriptions contained in
the preface and conclusion of the contempt certificate must be deleted
in order to avoid the jury's according them undue weight. In addition,
in this case the trial judge's observations prefatory to many of the individual
specifications present the same potential for prejudice, and therefore
they also should not be placed before the jury. However, the judge handling
this case on remand shall have authority to precede each specification
with an introduction necessary to set out the precise offense alleged in
the following excerpt from the transcript and to place the conduct depicted
therein in its proper context. If the judge to whom this case is referred
for trial decides that the outside limit of a cumulative sentence for any
appellant (except Mr. Weiner, who is not entitled to a jury trial by virtue
of his short sentence) should be 6 months maximum, a jury trial will not
be necessary for him.
Legally Insufficient Specifications
A. Attorneys. As noted in the companion opinion, United States v. Seale, supra, in order for conduct to be punishable under 18 U.S.C. § 401(1), it must "clearly be shown" that the conduct "actually obstructed the district judge in 'the performance of judicial duty.'" In re McConnell, 370 U.S. 230, 234, 82 S. Ct. 1288, 1291, 8 L. Ed. 2d 434; Ex parte Hudgings, 249 U.S. 378, 383, 39 S. Ct. 337, 63 L. Ed. 656. Our opinion in Seale requires, in addition to proof of the requisite wrongful intent, proof that the misbehavior was an "actual and material obstruction." See Seale, supra, 461 F.2d at 369. Where, as here, the conduct complained of is that of an attorney engaged in the representation of a litigant, the search for these essential elements of the crime of contempt must be made with full appreciation of the contentious role of trial counsel and his duty of zealous representation of his client's interests.
In dealing with an attorney's contempt, the Supreme Court noted in McConnell, supra, 370 U.S. at 236, 82 S. Ct. at 1292, "While we appreciate the necessity for a judge to have the power to protect himself from actual obstruction in the courtroom it is also essential to a fair administration of justice that lawyers be able to make honest good-faith efforts to present their clients' cases. An independent judiciary and a vigorous, independent bar are both indispensable parts of our system of justice. To preserve the kind of trials that our system envisages, Congress has limited the summary contempt power vested in courts to the least possible power adequate to prevent actual obstruction of justice * * *." The appellants interpret this to mean that where an attorney's conduct is involved, good faith is an absolute defense to citation for contempt. As noted in the Seale opinion, we do not believe McConnell supports such a position.
The McConnell opinion cannot be read as a grant of impunity for all conduct undertaken in good faith. On the contrary, the pith of McConnell, when reduced to its essential, is that without an actual obstruction, there can be no contempt. That view is made explicit at page 236, 82 S. Ct. at page 1292 where the Court states, "The arguments of a lawyer in presenting his client's case strenuously and persistently cannot amount to a contempt of court so long as the lawyer does not in some way create an obstruction which blocks the judge in the performance of his judicial duty. The petitioner created no such obstacle here."
While McConnell cannot be read as an immunization for all conduct undertaken by an attorney in good faith representation of his client, it does require that attorneys be given great latitude in the area of vigorous advocacy. Appellate courts must ensure that trial judges (or the jury on remand) are not left free to manipulate the balance between vigorous advocacy and obstructions so as to chill effective advocacy when deciding lawyer contempts. Admittedly, the line defies strict delineation (Goldfarb, The Contempt Power, 172 (1971)), but by our resolving doubts in favor of advocacy, an independent and unintimidated bar can be maintained while actual obstruction is dealt with appropriately.
In delineating the limits of zealous advocacy, we must repeat the instruction of Mr. Justice Jackson in Sacher v. United States, 343 U.S. 1, 9, 72 S. Ct. 451, 455, 96 L. Ed. 717, where he noted:
"Of course, it is the right of counsel for every litigant to press his claim, even if it appears farfetched and untenable, to obtain the court's considered ruling. Full enjoyment of that right, with due allowance for the heat of controversy, will be protected by appellate courts when infringed by trial courts. But if the ruling is adverse, it is not counsel's right to resist it or to insult the judge -- his right is only respectfully to preserve his point for appeal."
See also United States v. Schiffer, 351 F.2d 91, 94 (6th Cir. 1965) certiorari denied, 384 U.S. 1003, 86 S. Ct. 1914, 16 L. Ed. 2d 1017; MacInnis v. United States, 191 F.2d 157, 160 (9th Cir. 1951), certiorari denied, 342 U.S. 953, 72 S. Ct. 628, 96 L. Ed. 708; Hallinan v. United States, 182 F.2d 880, 887 (9th Cir. 1950), certiorari denied, 341 U.S. 952, 71 S. Ct. 1010, 95 L. Ed. 1375.
Many of the contempt specifications against the attorneys arise out of their persistence in continuing argument on motions and rulings after express orders by the trial judge to cease. With respect to these specifications, appellants contend that such persistence was warranted by the trial judge's refusal to hear reasonable argument from the defense prior to ruling. In support of this contention, reliance is placed upon Cooper v. Superior Court, 55 Cal.2d 291, 10 Cal.Rptr. 842, 359 P.2d 274 (1961). In that case the Supreme Court of California accepted the appellant's argument that "the power to silence an attorney does not begin until reasonable opportunity for appropriate objection or other indicated advocacy has been afforded." 10 Cal.Rptr. at 846, 359 P.2d at 278. Although this principle is not without appeal in extreme situations such as Cooper, where the judge sua sponte recalled a deadlocked jury and gave them his comments on the weight of the evidence without informing counsel of his actions or allowing them an opportunity to register objections, it cannot be accepted as a general principle. If a trial judge prejudicially denies counsel an adequate opportunity to argue a point, appellate courts will reverse, and that alone will deter most judges from arbitrarily cutting off argument. United States v. Offutt, 145 F. Supp. 111, 114 (D.D.C.1956), modified, 101 U.S.App.D.C. 97, 247 F.2d 88, certiorari denied, 355 U.S. 856, 78 S. Ct. 85, 2 L. Ed. 2d 64 (1957); see United States v. Sacher, 182 F.2d 416, 430 and 454 (concurring opinion of Frank, J.), affirmed, 343 U.S. 1, 72 S. Ct. 451, 96 L. Ed. 717; Hallinan v. United States, 182 F.2d 880, 885 (9th Cir. 1950), certiorari denied, 341 U.S. 952, 71 S. Ct. 1010, 95 L. Ed. 1375; United States v. Bollenbach, 125 F.2d 458, 460 (2d Cir. 1942); Sprinkle v. Davis, 111 F.2d 925, 930 (4th Cir. 1940). And where the judge is arbitrary or affords counsel inadequate opportunity to argue his position, counsel must be given substantial leeway in pressing his contention, for it is through such colloquy that the judge may recognize his mistake and prevent error from infecting the record. It is, after all, the full intellectual exchange of ideas and positions that best facilitates the resolution of disputes. However, this is not to say that attorneys may press their positions beyond the court's insistent direction to desist. On the contrary, the necessity for orderly administration of justice compels the view that the judge must have the power to set limits on argument. We simply encourage judges to exercise tolerance in determining those limits and to distinguish carefully between hesitating, begrudging obedience and open defiance.
A reading of the specifications against the attorneys in this case reveals a pattern in the specifications for refusal to obey a court directive to cease argument. That pattern necessitates a brief comment. The record discloses that the trial judge, when ordering counsel to terminate their argument or sit down, frequently added a rejoinder or coupled the order with a statement which called for a response by the attorneys. In such situations, it is our view that an invited, additional response cannot subsequently be viewed as a contemptuous violation of the order.
Appellants, relying on In re Abse, 251 A.2d 655 (D.C.Mun.Ct.App.1969), also argue that an attorney may with impunity defy a court order to refrain from reply where the judge has charged him with professional misconduct. The court in Abse held that an attorney charged by the trial judge with unprofessional conduct may insist upon being heard in his own defense so long as his response is respectful. We agree that there is in this limited situation cogent reason for permitting such response since appellate review is not available to vindicate an attorney who is erroneously charged with unprofessional conduct. To require him to remain silent in the face of such a charge is, as the court said in Abse, to render him "helpless." Of course, it bears repeating that Abse affords only an opportunity to answer the charge respectfully. Even if the judge's accusation be unfounded or ill-tempered, it does not protect counter-misbehavior, for as the court noted in United States v. Offutt, 145 F. Supp. 111, 114 (D.D.C.1956), "Two wrongs do not make a right, and misconduct cannot obliterate other misconduct."
Yet another frequent charge against the attorneys is that they failed to aid the court in maintaining order. While this charge was often coupled with the additional assertion that they actively encouraged their clients in their disruptions, for purposes of remand it is necessary to distinguish between the two situations. An attorney has no affirmative obligation to restrain his client under pain of the contempt sanction, although we do not express an opinion as to the breach of professional ethics that may be involved in this situation. Indeed, compelling an attorney to control the conduct of his client under threat of the contempt sanction might well destroy the confidence in the attorney-client relationship which is necessary to a proper and adequate defense. However, where an attorney encourages disruptive behavior by a client or fans the flames of existing frictions, he cannot find immunity from punishment for such conduct. As the Court said in United States v. Landes, 97 F.2d 378, 381 (2d Cir. 1938),
Finally, as was noted in Seale, mere disrepect or insult cannot be punished where it does not involve an actual and material obstruction. This is particularly true with respect to attorneys where the "heat of courtroom debate" may prompt statements which are ill-considered and might later be regretted. In re Hallinan, 71 Cal.2d 1179, 81 Cal.Rptr. 1, 459 P.2d 255 (1969). Substantial freedom of expression should be tolerated in this area since "Judges are supposed to be men of fortitude, able to thrive in a hardy climate." Craig v. Harney, 331 U.S. 367, 376, 67 S. Ct. 1249, 1255, 91 L. Ed. 1546. However, as also noted in Seale, although it is elusive, there is a line beyond which disrespect becomes obstruction. When the remarks create an imminent prejudice to a fair and dispassionate proceeding, that line has been crossed.
"Counsel should not obtrude upon the court the passion, the prejudice, or the unreason of his client. These must be left outside the courtroom door. The controversy that crosses the threshold should be a controversy sifted by the intelligence and shaped by the conscience of the lawyer, not the turmoil of personal dispute."
The presence or absence of contempt may turn upon no more than how the
remark was made. n9 For example, where the insult or disrespectful remark
is shouted, the insult itself may not amount to an obstruction of the judicial
process, but by the manner in which it was made it may. This was made clear
in In re Little, 404 U.S. 553, 92 S. Ct. 659, 30 L. Ed. 2d 708 (1972),
where the Supreme Court reversed a contempt conviction for disrespectful
conduct but in doing so noted, "There is no indication, and the State does
not argue, that petitioner's statements were uttered in a boisterous tone
or in any wise actually disrupted the court proceeding." Moreover, if an
entirely unnecessary and not insignificant delay is occasioned by insulting
remarks which serve, for instance, only to vent the speaker's spleen, a
material obstruction would exist.
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n9 See Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183, 264
(1971).
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With respect to the question of intent, we said in Seale that the minimum standard is one of a voluntary action known by the actor to be wrongful or one that he reasonably should have been aware was wrongful. Attorneys have a right to be persistent, vociferous, contentious, and imposing, even to the point of appearing obnoxious, when acting in their client's behalf. An attorney may with impunity take full advantage of the range of conduct that our adversary system allows. Given this extreme liberality necessary to a vital bar and thus the effective discovery of truth through the adversary process, an attorney possesses the requisite intent only if he knows or reasonably should be aware in view of all the circumstances, especially the heat of controversy, that he is exceeding the outermost limits of his proper role and hindering rather than facilitating the search for truth.
Thus, as we did with the contempt specifications in Seale, we have carefully examined those against the attorney appellants and have determined that some do not, as a matter of law, charge conduct which rises to the level of an "obstruct[ion] [of] the administration of justice." 18 U.S.C.A. § 401 (1). Again, it bears repeating that those specifications which are remanded for trial are not thereby found to be obstructions, nor do they necessarily show misbehavior or the requisite intent. The jury will determine the issues of misbehavior, obstruction, and intent for all specifications not found insufficient as a matter of law. Those specifications deemed legally insufficient are (by appellant and number): Weinglass, Nos. 1, 2, 3, 5, 6, 7, and 8; Kunstler, Nos. 1, 2, 5, 11, 12, 13, 14, 15, 16, the first part of 17, 18 and 19. However, the jury may consider the conduct described therein in connection with the factual questions to be resolved with respect to the valid specifications. See United States v. Seale, supra.
As we made clear in United States v. Seale, impropriety on the part of the trial judge cannot justify or excuse contemptuous conduct. However, judicial (or prosecutorial) provocation is to be considered by the new hearing judge in extenuation of the offense and in mitigation of any penalty to be imposed.
B. Non-lawyers. With respect to the non-lawyer defendants who were cited for contumacious conduct, it is manifest that the standards regarding the essential elements of the offense set forth in United States v. Seale, shall apply to the trial upon remand. It is equally clear that litigants not even making a pretense of self-representation are not to be afforded the same latitude of speech and action as an attorney. Judge Breitel stated in Katz v. Murtagh, 28 N.Y.2d 234, 240, 321 N.Y.S.2d 104, 109, 269 N.E.2d 816, 820 (1971), "The court is not a public hall for the expression of views, nor is it a political arena or a street. It is a place for trial of defined issues in accordance with law and rules of evidence, with standards of demeanor for court, jurors, parties, witnesses and counsel." This Court pointed out in United States ex rel. Robson v. Malone, 412 F.2d 848, 850 (7th Cir. 1969), that in courtrooms "there must be silence, except as the orderly conduct of business calls for speech." Thus where there is legally adequate representation and no pressing need for the litigant to interject himself into the proceedings, this Court is hesitant to find as a matter of law that any such interjection did not rise to the level of an obstruction. We believe that question is better left for the jury in this situation.
Brief mention, however, must be made concerning those specifications
which deal with the appellants' refusals to stand when court was convened
and recessed. It is our opinion that such symbolic acts, when not coupled
with further disturbance or disruption, sometimes might not rise to the
level of an actual and material obstruction of the judicial process. In
United States ex rel. Robson v. Malone, supra, we expressed "some
doubt about the power of the court to require spectators to perform purely
ceremonial or symbolic acts." While the per curiam opinion in Malone
concluded that a court "may require such rising" and while we reaffirm
that conclusion as to rising at the beginning of a session and end of a
recess, we believe on remand some of the failures to rise here could be
found nonobstructive. Such symbolic acts as cited here, when tested by
the actual and material standard, do not necessarily alone amount to obstructions
punishable as criminal contempt. n10 Of course, where such an act is accompanied
by some disturbance, disorder or interruption, an obstruction may exist.
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n10 See Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 181, 204
(1971).
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It is decided, therefore, that all specifications against non-lawyer appellants be remanded for trial by jury.
After careful consideration of the arguments of appellants and amici
curiae, in our judgment, except as to those legally insufficient, none
of the charges merits dismissal "in the interests of justice." n11 In the
words of Mr. Justice Cardozo, "Justice, though due to the accused, is due
to the accuser also." n12 Therefore, the contempt convictions of appellants
are reversed and remanded for further proceedings not inconsistent herewith.
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n11 Of the amici curiae, the Americans for Effective Law Enforcement, Inc. opposed whereas the remaining amici favored dismissal.
n12 Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S. Ct. 330, 338, 78
L. Ed. 674.
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
United States of America ex rel. Judge
Julius J. Hoffman
vs.
David T. Dellinger [et al.]
No. 69 CR 180
CERTIFICATE OF CONTEMPT *
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* This Certificate preceded the individual specifications of contempt
with regard to each defendant and the two trial attorneys. It is hereinafter
omitted to avoid repetition.
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In conformity with Rule 42(a), Federal Rules of Criminal Procedure, 18 U.S.C., I hereby certify that the series of criminal contempts set forth below were committed in the actual presence of the court and were seen or heard by the court during the trial of the case of United States of America v. David T. Dellinger, et al., 69 CR 180, which commenced on September 24, 1969.
This was a case marred by continual disruptive outbursts in direct defiance of judicial authority by the defendants and defense counsel. I will specify here the instances of conduct of record which I consider to have been contemptuous, but I also make the entire record of the case of United States of America v. David T. Dellinger, et al., 69 CR 180, a part of this proceeding.
Much of the contemptuous conduct in this case does not show, of record. The constant murmurs and snickering emanating from the defense table were not captured on the printed page. No record, no matter how skillfully transcribed, can adequately portray the venom, sarcasm, and tone of voice employed by a speaker. No record, no matter how skillfully transcribed, can adequately reflect the applause, the guffaws, and other subtle tactics employed by these contemnors in an attempt to break up this trial. I have not focused on these cheap theatrics, histrionics, and affectations. I note them for the record lest my silence be construed as approval. But for the sake of the citations for contempt in this case, I limit myself to that conduct which is clearly and adequately portrayed in the record.
This was a long trial. The behavior of the defendants and defense counsel was prepared with direct and defiant contempt for the court and the federal judicial system as a whole. Here is a record of exceptional circumstances which were disruptive of the proceedings. It has been my considered judgment throughout this case that the behavior of the defendants was aimed at baiting the judge and inciting and harassing the U. S. Attorneys in an attempt to stop the trial. I would have been derelict in my duty as a Federal District Judge if I were to permit such base and unethical tactics to succeed. Consequently, I have waited until this trial was concluded before making a final determination of contempt. The exigencies of such a complex and difficult case compelled me to follow that course.
DAVID T. DELLINGER
I.
On October 15th when the Judge entered the courtroom, Mr. Dellinger was standing and the following colloquy occurred:
"Mr. Dellinger: Mr. Hoffman, we are observing the moratorium.The Court: I am Judge Hoffman, sir.
Mr. Dellinger: I believe in equality, sir, so I prefer to call people mister or by their first name."
The Court: Sit down. The clerk is about to call my cases.
Mr. Dellinger: I wanted to explain to you we are reading the names of the war dead.
The Marshal: Sit down.
Mr. Dellinger: We were just reading the names of the dead from both sides.
The Marshal: Sit down."
Official Transcript Page 2425A.
Subsequently the jury was brought into the room. When the jury was seated, the defendant Dellinger once more rose and the following colloquy occurred:
"Defendant Dellinger: Before the witness resumes the stand, we would like to propose --Mr. Schultz: If the Court please --
Mr. Foran: Your Honor. If the Court please, may the marshal take that man into custody?
Defendant Dellinger: A moment of silence --
Mr. Schultz: Your Honor, this man --
The Court: Mr. Marshal, take out the jury."
(The following proceedings were had in open court, out of the presence and hearing of the jury:)
"Defendant Dellinger: We only wanted a moment of silence.
Mr. Foran: Your Honor, this man has announced this on the elevator coming up here that he was intending to do this.
Defendant Dellinger: I did not. It doesn't matter, I would have been glad to, but I did not.
Mr. Foran: Your Honor, I object to this man speaking out in court.
The Court: You needn't object. I forbid him to disrupt the proceedings. I note for the record that his name is --
Defendant Dellinger: David Dellinger is my name.
The Court: You needn't interrupt my sentence for me.
Defendant Dellinger: You have been interrupting ours. I thought I might finish that sentence.
The Court: The name of this man who has attempted to disrupt the proceedings in this court is David Dellinger and the record will clearly indicate that, Miss Reporter, and I direct him and all of the others not to repeat such occurrences." Official Transcript Pages 2429-30.
II.
When the witness Salzberg left the witness box in order to identify the defendant Hayden, the defendant Dellinger said to him, in a voice loud enough for the jury to hear:
"Mr. Dellinger: Quite a let down. I am really disappointed in you." Page 3770.
III.
On October 22nd, after the defendant Seale had defied a judicial order by speaking out again and again, after being told to stop, the defendant Dellinger rose and addressed the court:
"Mr. Dellinger: I think you should understand we support Bobby Seale in this -- at least I do." Page 3642.
IV.
On October 27th, during the testimony of the witness Frapolly, the defendant Dellinger made the following comment:
"Mr. Dellinger: Mr. Foran, do you believe one word of that?Mr. Foran: Your Honor, may the record show the comment from the defendant Dellinger, your Honor?
The Court: Yes. Mr. Dellinger has made several comments from time to time. The record may indeed show --
Did you get the comment of Mr. Dellinger?
Mr. Dellinger: Yes. I asked Mr. Foran if he could possibly believe one word of that. I don't believe the witness believes it. I don't believe Mr. Foran believes it.
The Court: And continue to take his words, and I admonish you, sir, not to interrupt this trial by your conversation or your remarks. You have a very competent lawyer representing you. You are not permitted to speak while he represents you." Page 4372.
V.
On October 28th, the following occurred:
"Mr. Kunstler: Your Honor, the defendants, with whom I have consulted, every one except Mr. Seale, have requested me to just make one question -- ask one question of your Honor before they give me their decision, and the question would be: Is the price of my doing the compromising or waiving by Mr. Seale of his constitutional assertion that I am not his lawyer and he wants to defend himself?The Court: You don't expect me to answer a question put to me that way, do you?
Mr. Dellinger: Why not? You expect us to answer a question." Page 4395.
VI.
At the close of the court session on October 28th, 1969, the defendant Dellinger refused to rise in the customary manner when the court left the room. Pages 4618-19.
VII.
On October 28th in the afternoon session, after the court had engaged in a colloquy with Mr. Seale concerning his right to cross examine witnesses, Mr. Dellinger rose and stated the following:
"Mr. Dellinger: And all the defendants support Bobby Seale's right to have a counsel of his choice here and affirm that he has been denied that right." Page 4638.
VIII.
On October 29th, Mr. Dellinger engaged in a physical struggle with one of the marshals who was attempting to restrain the defendant Bobby Seale, and when the court called a recess, Mr. Dellinger refused to rise in the customary manner. Pages 4724-4729.
IX.
On October 29th, in the afternoon session, when the court was compelled to call a recess, the defendant Dellinger again refused to rise in the customary manner. Page 4763.
X.
On October 30th, at the beginning of the court session, the defendant Dellinger again refused to rise in the customary manner. Page 4801.
XI.
On October 30th, after the defendant Hayden had engaged in a colloquy with the court, the defendant Dellinger commented aloud from the defense table:
"Mr. Dellinger: What about the motion? There was a motion. The motion was for voir dire of the jury. He hasn't ruled." Page 4844.
XII.
On October 30th, when the court again called a recess, Mr. Dellinger once more refused to rise in the customary manner. Page 4849.
XIII.
On November 12th, during the direct examination of the witness Bock, the defendant Dellinger laughed at the court as the court made an observation and Mr. Dellinger said aloud so that the jury could hear:
"Mr. Dellinger: We are not ashamed to laugh." Page 6258.
The conduct was repeated a few moments later during the testimony of Mr. Bock and the following occurred:
"Mr. Schultz: Mr. Kunstler is laughing so he can influence the jury with the impression that this is absurd. That is why he is laughing aloud because he -- if Mr. Dellinger would stop talking when we are addressing the court --Mr. Dellinger: I am trying to tell something to my lawyer. It is absurd. It is -- he is a vaudeville actor." Pages 6288-89.
XIV.
On November 19th, during the cross examination of the witness Bock, the following occurred:
"Mr. Schultz: Objection. That has no bearing, no probative -- if Mr. Dellinger will stop talking to me when I am trying to address the court --Mr. Dellinger: I don't talk to you.
Mr. Schultz: And mumble to me every time I am trying to make an objection --
Mr. Dellinger: Don't go making up things, Richard Schultz. I didn't talk to you. I don't mind your making all of these phony objections, but when you start lying about me, too, I think that is disgusting.
The Court: Mr. Dellinger --
Mr. Dellinger: I didn't say a word to him, Judge.
The Court: You just said enough to make me admonish you not to make any more remarks like that.
Mr. Kunstler: Your Honor, you ought to admonish the U. S. Attorney not to make remarks --
The Court: He may not speak out here. He has a lawyer.
Mr. Dellinger: He just lied about me.
Mr. Schultz: I am sitting next to Mr. Dellinger and he is mumbling under his breath to me. He has been doing this for the last --
Mr. Dellinger: I said 'Ah' when he asked a bad question. I didn't say a word --
The Court: You have competent lawyers to speak for you, sir, and I shall not permit you to speak for yourself.
Mr. Kunstler: Then your Honor, I would ask your Honor to direct the U.S. Attorney not to take comments that are made here at the table to me or any other member of this table as remarks always addressed to him.
Mr. Foran: Your Honor, I was sitting here, too. I overheard the remark.
Mr. Dellinger: You're adding a lie to his lie, and I say that on my word.
The Court: I see that you are not accepting my admonition, sir, and I ask the reporter to make note of that." Pages 7341-43.
XV.
On November 20, after the Court had made a ruling refusing to grant a writ of habeas corpus ad testificandum, the following colloquy took place:
"Mr. Dellinger: Aw Jesus -- fascist --The Court: Who is that man talking Mr. Marshal?
Mr. Dellinger: That is Mr. David Dellinger and he is saying that that is an arbitrary denial when you say who is key to our defense. We know who is key to our defense and we want to put on our key defense witness.
The Court: Mr. Marshal, ask that man to sit down.
The Marshal: Sit down, Mr. Dellinger.
Mr. Dellinger: I think that is acting like a fascist court like Mr. Seale said when you make decisions of that kind and deprive us of our witnesses. Because he has already been persecuted in one court, now you are persecuting him and us in another court." Page 8078.
XVI.
On November 26th, the day before Thanksgiving, after the Court determined that it would be unable to permit the sequestered jury to return home for the Thanksgiving Holiday, the following occurred:
"Mr. Dellinger: We move --Mr. Kunstler: Your Honor, we move --
Mr. Weinglass: It's true. It's a true comment.
The Court: Who was that man who said he moved that is not a lawyer?
Mr. Dellinger: I am telling our lawyers we move the jury not have to be sequestered so they can be home.
The Court: Mr. Marshal, will you have that man --
Mr. Dellinger: You asked about it, and I am telling you.
The Court: Let him sit down.
Mr. Dellinger: I was telling the lawyer before.
The Court: He has a lawyer." Page 8610.
XVII.
During the testimony of the witness Meyerding, the following occurred:
"The Court: I note for the record that certain of the defendants, Dellinger particularly --Mr. Dellinger: I did not.
The Court: -- made noises.
Mr. Dellinger: I beg your pardon, I did not utter a single noise. When I have noises, [sic] I stand up and say so.
The Court: I heard you, sir.
Mr. Dellinger: I did not sigh; I did not utter a single noise, absolutely not.
The Court: And the man sitting next to you did also.
Mr. Dellinger: You mean to say you are calling me a liar? If so, you are a liar. I did not utter a single noise.
The Court: And make a note of that last statement.
Mr. Dellinger: I have called this a fascist court before and I think he is trying to prove it. It is absolutely irresponsible on your part.
The Court: Make a note of that last statement.
Mr. Dellinger: Absolutely irresponsible.
The Marshal: Sit down, please.
Mr. Dellinger: And dishonest.
The Court: Make a note of that last statement.
Miss Reporter, have you all of Mr. Dellinger's comments? Have you?
The Reporter: Yes." Official Transcript, Pages 10,086-87.
XVIII.
On December 11 during the cross examination of the witness Ochs, the following occurred:
"Mr. Dellinger: He answered. You don't have to keep asking that.Mr. Schultz: I don't know how many lawyers there are at that table.
Mr. Dellinger: I am consulting with my lawyer.
Mr. Schultz: I don't know whether an objection is being made or what?
The Court: The Court notes that --
Mr. Kunstler: Your Honor, Mr. Dellinger has made a remark to me that he doesn't have to keep asking the same question.
The Court: Will you let me finish my observation?
Mr. Kunstler: Oh, go ahead. I thought you had.
The Court: Mr. Dellinger made a loud remark which provoked Mr. Schultz to say: 'I don't know how many lawyers there are,' and I think that was a good inquiry. Mr. Dellinger has done that sort of thing before and I merely wanted to identify the person, that is all, for the record." Pages 10,628-29.
XIX.
On December 15, when the Court was compelled to request the marshal to remove Mr. Stuart Ball, Jr., the following occurred:
"The Court: Mr. Marshal, take Mr. Ball out.Mr. Dellinger: That is an injustice.
Mr. Kunstler: That is a lawyer who is part of our defense team.
The Court: He is not a lawyer admitted to practice in this court.
Mr. Kunstler: You are removing a lawyer from the defense table.
The Court: No, he is not a lawyer admitted to practice here.
Mr. Kunstler: That doesn't matter, your Honor. He is --
Mr. Dellinger: He wasn't laughing." Pages 11,179-80.
A few moments later, the following colloquy occurred:
"Mr. Kunstler: But he didn't laugh, your Honor. If he laughed, that is one thing, perhaps, but two defendants have admitted laughing.The Court: My eyesight is good and my hearing is good.
Mr. Kunstler: You were wrong about Mr. Dellinger. You thought he made a noise. We have submitted an affidavit as to that.
The Court: I suppose I didn't hear him call me a liar in open court.
Mr. Kunstler: That is a different matter, your Honor.
The Court: Oh --
Mr. Dellinger: I said if you said I was talking that that was a lie, that you were calling me a liar.
The Court: You didn't -- you said 'You are a liar.'
Mr. Kunstler: No. Read the transcript.
Mr. Dellinger: You accused me of being a liar and I said that was a lie.
The Court: Will you sit down?
Mr. Dellinger: And you are very prejudiced and unfair and I state that in open court. It is not a fair trial and you have no intention of giving us a fair trial and when I speak through-out the country, I say that you are the assistant prosecutor or maybe the chief prosecutor and it is true and the people of this country will come to learn that about you and about some other judges in this court.
A Spectator: Right on.
Mr. Davis: That's why we were laughing."
(There was disorder in the courtroom.)
"A Spectator: Right on, boys.Mr. Hoffman: You said you were doing it for us.
The Court: Have you got all those remarks, Miss Reporter?
Mr. Dellinger: Now one of our legal staff you have falsely accused and that is why I speak up.
The Court: Now, if you will permit me --
Mr. Kunstler: Your Honor, what is happening? The marshals are taking people out.
A Spectator: Why don't you clear the whole courtroom?
The Court: Will you --
Mr. Dellinger: You see, we are interested in the truth and you are not and the government is not and that is what the conflict is here." Official Transcript, Pages 11,182-85.
XX.
On December 30, during the direct examination of the witness Hoffman, the following occurred:
"Mr. Marshal: Mr. Dellinger --Mr. Dellinger: I am a little upset by the dishonesty of the court's process -- yes, my name is David Dellinger.
The Court: That man's name is Dellinger, Miss Reporter.
Mr. Dellinger: They are not interested in the truth. They just want one side of things to go in, even made up things, but they won't allow the real things, the real truth.
The Court: Mr. Dellinger is continuing to speak, Miss Reporter.
Mr. Dellinger: Darned right. I hope the jury understands that, too.
Mr. Schultz: Your Honor, this is a deliberate attempt to make it appear --
Mr. Dellinger: What do you --
Mr. Schultz: -- that because the defendants don't follow --
The Court: Mr. Schultz --
Mr. Kunstler: Oh, your Honor -- unfair to the government.
Mr. Dellinger: The government will go to jail for ten years, I suppose.
Mr. Schultz: Your Honor --
The Court: Just a minute, sir. Now, Mr. Schultz, don't underestimate anybody's intelligence. Anyone knows that has been in a courtroom before that a defendant represented by counsel doesn't speak out.
Mr. Dellinger: Even when he's being railroaded he doesn't speak out.
The Court: I hope, Miss Reporter, you get those remarks.
Mr. Kunstler: Your Honor, there comes a time when every human being feels the necessity to speak out and Mr. Dellinger --
The Court: I didn't ask you to philosophize.
Mr. Kunstler: I am not philosophizing, I am defending a client.
The Court: There comes a time when courtroom decorum must be observed.
Mr. Dellinger: Decorum is more important than justice, I suppose.
The Court: I have never sat in a trial over the many years where a defendant has spoken up on his own when --
Mr. Froines: Perhaps you can give him four years like you gave Bobby Seale.
Mr. Dellinger: We just walk politely into jail." Official Transcript, Pages 12,913-16.
And very slightly later:
"The Court: And I direct you to sit down or I will have the marshal --Mr. Kunstler: Mr. Schultz says --
The Court: Please ask this lawyer to sit down.
Mr. Kunstler: I have a right to stand and talk in defense of my client.
Mr. Dellinger: That's why we have to speak up, because you won't let our lawyers have a fair chance." Page 12,916.
XXI.
On January 9th, after the court directed Mr. Rubin to remain in the courtroom and use the washroom facilities in the adjoining lock-up if he needed to go to the bathroom, the following colloquy occurred:
"Mr. Rubin: I want to go to the bathroom.Mr. Dellinger: Convicted us already.
Mr. Davis: Guilty until proven innocent." Page 14,716.
XXII.
On January 9th, when the court reiterated its order concerning the use of the washroom facilities, the following occurred:
"The Marshal: Mr. Dellinger --The Court: Let the record show that after I requested the Marshal to keep Mr. Dellinger quiet he laughed right out loud again. Out loud. The record may so indicate.
Mr. Dellinger: And he is laughing right now, too." Page 14,824.
XXIII.
On January 12th the court made an evidentiary ruling and the following occurred:
"The Court: The objection of the government to Defendants' Exhibit 279 for identification will be sustained.Mr. Dellinger: Oh, ridiculous.
The Court: Who said 'ridiculous'?
Mr. Dellinger: I did. It was ridiculous. I stand on that fact. You don't want us to have a defense.
The Court: I just wanted to know who said that.
Mr. Dellinger: You don't want us to have a defense. You are a hypocrite.
The Court: Did you get all those remarks?
Mr. Dellinger: I stand by them, too. You earned them. It really brings the whole system of justice under discredit when you act that way. What Mayor Daley and the police did for the electoral process in its present form you are now doing for the judicial process.
The Court: Mr. Marshal --
Mr. Davis: We want a fair trial.
Mr. Dellinger: You don't think it is a fair trial, do you?
Mr. Marshal: Just be quiet, Mr. Dellinger.
Mr. Dellinger: You are being paid by the same company but you ought to be able to think for yourself a little bit.
The Court: Bring in the jury.
Mr. Weinglass: If your Honor please, before the jury comes in, I have a motion to make on behalf of the defendants. Prior to the jury leaving the court and while they were still here in the room and pursuant to my request for a five minute adjournment, your Honor made a statement in open court in the presence of the jury that it was your attitude that this case should be 'gotten rid of.'
The Court: I didn't say that.
Mr. Dellinger: You did.
A Defendant: You did so.
The Court: I said we shouldn't be wasting time. You got more than a five minute recess. I waited here.
Mr. Dellinger: You said 'get rid of the case.'
Mr. Weinglass: As far as I'm concerned --
The Court: Mr. Marshal, will you tell that man to remain quiet?
The Marshal: Mr. Dellinger --
Mr. Weinglass: I most respectfully dispute the Court's recollection. Your Honor did use the words 'get rid of.'
The Court: Whether you are respectful or not, the evidence of the respect with which the court is treated has been demonstrated by one of the defendants.
Mr. Dellinger: I didn't say anything you didn't deserve.
The Court: I will say to you, Mr. Weinglass --
Mr. Dellinger: I only speak the truth." Official Transcript, Pages 15,139-41.
XXIV.
On January 14th the following occurred:
"The Court: Mr. Marshal, I am not here to be laughed at by these defendants, patricularly Mr. Rubin.Mr. Marshal: Mr. Dellinger, also, will you refrain from laughing?
Mr. Dellinger: That is a lie. And it wasn't Mr. Rubin. We laugh enough and you can catch us when we do but you just happened to get the wrong one.
Mr. Kunstler: Your Honor, I don't think the record should constantly have these references to chuckles.
The Court: I think the record should show that and I see that the record does. I don't share your view.
Mr. Kunstler: The Court has made a sally before and the room laughed and you didn't put that on the record.
The Court: I will not sit here -- and you must know it by now, certainly -- and have defendants laugh at my rulings, sir. And I will not hear you on that.
Mr. Kunstler: You don't mind if they laugh at me or if they laugh at someone else.
The Court: I will ask you to sit down.
The Court: Will you sit down? I saw Mr. Dellinger talking. If anybody else did --
Mr. Dellinger: You did not see me talking. My lips were not moving. That is not the first time you have lied in this courtroom. My lips were not moving.
The Court: Did you get those last remarks?
Mr. Schultz: It was the defendant Hoffman.
Mr. Dellinger: If you can make an honest mistake, that's all right, but to lie about it afterwards and say you saw me talking when you didn't, that is different.
The Court: Will you ask that man to sit down.
Mr. Dellinger: You will go down in infamy in history for your obvious lies in this courtroom, of which that is only the most recent one.
Mr. Marshal: Sit down, sir.
Mr. Dellinger: It is absolutely true what I am saying.
Mr. Marshal: Will you --
Mr. Dellinger: Absolutely true.
The Court: Mr. Marshal, will you ask that man to be quiet?
Mr. Dellinger: You will be ashamed of that for the rest of your life, if anything can shame you.
Mr. Schultz: Your Honor, it was the defendant Hoffman sitting immediately behind Dellinger who made those remarks.
The Court: Let the record show --
Mr. Dellinger: Thanks for telling the truth, Mr. Schultz.
Mr. Kunstler: Mr. Hoffman attempted to clarify the record. He was the one responsible. He took the blame for it. It was not Mr. Dellinger or anyone else, or Mr. Rubin.
The Court: Oh, I heard Mr. Rubin and saw him.
Mr. Kunstler: Your Honor --
The Court: Will you please sit down? I will make the rulings here.
The record will be what it is.
Mr. Kunstler: I want the record --
The Court: It can't be any more clear.
Mr. Dellinger: I want to make the record clear. Mr. Rubin did not laugh. You are standing there saying you heard it. That is why I called you a liar. He did not laugh. I was sitting next to him.
The Court: Mr. Marshal --
Mr. Dellinger: And you made it up. It is about time this got out into the open so everyone could know what you are doing here. It is one thing to be prejudiced, it is another thing to be a liar.
The Court: Mr. Marshal, I ask you to restrain that man.
The Marshal: Be quiet.
Mr. Kunstler: He is trying to clarify the record.
The Court: He has got a lawyer.
Mr. Kunstler: I am his lawyer and I represent --
The Court: That is right, and we have had enough of this.
Mr. Kunstler: But the record must be crystal clear that it was not Mr. Dellinger, it was not Mr. Rubin. Mr. Hoffman --
The Court: Mr. Dellinger said enough.
Mr. Kunstler: Mr. Hoffman has taken the blame.
The Court: I have never sat in fifty years through a trial where a party to a law suit called the judge a liar.
Mr. Dellinger: Maybe they were afraid to go to jail rather than tell the truth, but I would rather go to jail for however long you send me than to let you get away with that kind of thing and people not realize what you are doing.
The Court: Mr. Marshal, do I have to tell you again, sir." Official Transcript, Pages 15,585-91.
XXV.
Throughout the trial the defendant Dellinger has commented on the evidence and the witnesses presented by the prosecution. On January 16th during the cross examination of the witness Goodwin the following incident occurred:
"Mr. Kunstler: Then I think --Mr. Dellinger: Now he is going into his imagination.
Mr. Foran: Your Honor, there is testimony concerning this exact statement from Mr. Dellinger on August 28th between 10:30 and noon at 407 South Dearborn Street.
Mr. Dellinger: Yes, police agents, but you made it appear as if it was from my article. It is just Bill called the attention --
The Court: Whose are those last words? Did you get the words of Mr. Dellinger, Miss Reporter?
The Reporter: Yes.
Mr. Kunstler: He was just pointing our, your Honor, that there had been no shift from --
The Court: I heard. I heard. I don't need your advice on that, Mr. Kunstler.
Mr. Foran: I shifted, your Honor, when Mr. Kunstler complained that I was talking about his article. I will go back and ask him another question." Official Transcript, Page 16,201.
XXVI.
On January 23, during the direct examination of the witness Davis, the court indicated that argument on a mistrial motion had been completed, and ordered Mr. Kunstler to sit down. After Mr. Kunstler flaunted the court's orders and continued to argue, the defenddant Dellinger rose from his place at the defense table, and the following incident ensued:
"Mr. Kunstler: You haven't even heard the motion.Mr. Rubin: You haven't heard it yet.
The Court: For a mistrial.
Mr. Kunstler: Yes, but I would like to argue it.
The Court: Oh, there is no ground for a mistrial.
Mr. Kunstler: Your Honor knows you have referred to the question of defendants taking the stand. You have committed the cardinal error of a court with reference --
The Court: I direct the marshal to have this man sit down.
Mr. Kunstler: Every time I make a motion am I going to be thrown in my seat when I argue it?
The Court: You may sit down.
Mr. Dellinger: Force and violence.
Mr. Kunstler: If that is the ruling of the court, that we cannot argue without being thrown in our seats --
Mr. Dellinger: The judge is inciting a riot by asking the marshal to have him sit down.
The Court: That man's name is Dellinger.
Marshal Joneson: Will you be quiet, Mr. Dellinger.
Mr. Dellinger: After such hypocrisy I don't particularly feel like being quiet. I said before the judge was the chief prosecutor, and he's proved the point.
The Court: Will you remain quiet. Will you remain quiet, sir.
Mr. Dellinger: You let Foran give a foreign policy speech, but when he tries to answer it, you interrupt him and won't let him speak.
There's no pretense of fairness in this court.
The Court: Mr. Marshal, will you go to that man and ask him to remain quiet.
Mr. Dellinger: No pretense of fairness. All you're doing is employing a riot -- employing force and violence to try to keep me quiet --
Marshal Joneson: Be quiet, sir.
Mr. Dellinger: -- just like you gagged Bobby Seale because you couldn't afford to listen to the truth that he was saying to you. You're accusing me. I'm a pacifist.
Marshal Joneson: Sit down, please, and be quiet.
Mr. Dellinger: I employ nonviolence, and you're accusing me of violence, and you have a man right here, backed up by guns, jails, and force and violence. That is the difference between us.
Marshal Joneson: Will you sit down. (Applause.)
The Court: Will you continue, please, with the direct examination of this witness.
Mr. Dellinger: There goes the violence right there.
Mr. Kunstler: That's the government in operation, your Honor, as it has been throughout this trial.
The Witness: Your Honor, that's my sister they are taking out of the courtroom.
The Court: Even your sister --
Mr. Kunstler: Nobody but the government has employed violence in this courtroom -- with Bobby Seale, with spectators." Official Transcript, Pages 17,371-17,373.
At this point, the marshals found it necessary to remove several of the spectators from the courtroom for disorderly conduct. Mr. Kunstler made some remarks about the removal of the spectators, and Mr. Foran rose to defend the way the trial was being conducted. This precipitated the following outburst from Mr. Dellinger:
"Mr. Foran: Your Honor, traditionally in American law, cases are tried in a courtroom by the participants in the trial, not the audience, not spectators, not relatives of the defendants, but by witnesses and by the court and by the jury, not by shouting and screaming and voluntary statements from counsel, or from the defendants shouting out in courtrooms, because that is the American judicial system, and it's worked very well for two hundred years, and it's not going to change now for these people.Mr. Dellinger: Yes, kept the black people in slavery for two hundred years and wiped out the Indians and kept the poor people in problems and started the war in Viet Nam which is killing off at least a hundred Americans and a thousand Vietnamese every week, and we are trying to stop it.
Marshal Joneson: Sit down.
Mr. Dellinger: And you call that ranting and raving and screaming because we speak the truth.
Marshal Joneson: Mr. Dellinger, sit down, please.
Mr. Foran: Your Honor, in the American --
Mr. Dellinger: And that judge won't let that issue come into the trial, that's why we are here.
Mr. Foran: Your Honor, in the American system there is a proper way to raise such issues and to correct them.
Mr. Dellinger: That was the proper way with Fred Hampton, wasn't it?"
Mr. Kunstler made several more remarks, and Mr. Schultz rose to answer him, and Mr. Dellinger interjected a comment again:
"Mr. Schultz: We complied with the rules of this court. We have made no statements to the press, to any press, since this case was indicted. Mr. Kunstler, on a regular basis, has been falsifying to the press, violating the rules of the court prohibiting every attorney in this case from making press conferences, and he has been doing it and he stands before this court and says the Government has.Mr. Dellinger: And they have rules like that in Nazi Germany." Official Transcript, Pages 17,374 through 375.
XXVII.
On January 24, once more the testimony of the defendant Davis was interrupted. Mr. Foran was responding to an argument by Mr. Kunstler, when Mr. Dellinger interjected his remarks once more:
"Mr. Foran: In this case, your Honor, we have heard these people adopt or attempt to adopt Dr. King, attempt to adopt Senator McCarthy, Robert Kennedy, both of whom were better friends of mine than they ever were of theirs.Mr. Dellinger: Oh, my God.
Mr. Foran: Mr. Kennedy appointed Mr. Schultz, your Honor.
Mr. Kunstler: Oh, your Honor --
Mr. Dellinger: Reverend Abernathy was the co-chairman of the Mobilization and I worked intimately with Martin Luther King and Ralph Abernathy.
Mr. Foran: Robert Kennedy appointed this young man as an Assistant United States Attorney.
The Court: Mr. -- young man, will you have Mr. Dellinger sit down, and, Miss Reporter, did you get Mr. Dellinger's remarks?"
Mr. Dellinger did not sit down at the direction of the marshal and very slightly later the following ensued:
"The Court: Mr. Marshal, ask that man to sit down.Mr. Dellinger: There has to be some way of speaking the truth. We have to speak the truth some way. If you won't allow it to come in other ways, we have to stand up and tell it because it is true.
The Court: Mr. Marshal --
Mr. Dellinger: Ralph Abernathy was the co-chairman and close worker --
The Court: Have that man sit down, Mr. Marshal, or do we have to have three marshals?" Official Transcript, Pages 17,808-17,811.
XXVIII.
At the end of the court session on January 24, while the court was attempting to instruct the jury prior to recess, Mr. Dellinger made several loud remarks at the defense table, which were easily overheard throughout the courtroom. The incident is reported as follows:
"The Court: With that, Mr. Foran, I think we will recess tonight until Monday morning.Ladies and gentlemen --
The Marshal: Will you please keep quiet? Sit down. Sit down.
The Court: Ladies and gentlemen of the jury, we are about to recess until tomorrow morning.
Mr. Dellinger: -- hear a pig talk about civil disobedience --
The Marshal: Mr. Dellinger --
Mr. Dellinger: I was just talking to my friend.
The Court: I will wait." Official Transcript, Page 17,860.
XXIX.
On January 30, the court was required to instruct the marshals concerning the behavior of disorderly spectators. Mr. Dellinger made the following sarcastic comment after that instruction:
"The Court: I direct the jury to disregard the applause of each and every person who participated in it and the marshals will exclude from the courtroom any spectators who applauded after the witness left the stand.Mr. Dellinger: Thanks a lot. Thanks, fellows." Official Transcript, Page 19,032.
XXX.
On February 4, the incident occurred which finally led the court to revoke Mr. Dellinger's bail. During the testimony of the witness Riordan, Mr. Dellinger rose from his place at the defense table and interjected the following remark:
"Mr. Dellinger: Oh, bull shit.The Court: Did you get that, Miss Reporter?
Mr. Dellinger: That is an absolute lie.
The Court: Did you get that, Miss Reporter?
Mr. Dellinger: Let's argue about what I stand for and what you stand for, but let's not make up things like that.
The Court: All those remarks were made in the presence of the court and jury by Mr. Dellinger."
After a brief argument about the propriety of these remarks, the court determined to excuse the jury momentarily, and the following incident occurred:
"The Court: I will have to excuse you, ladies and gentlemen of the jury, with my usual orders.Mr. Dellinger: You're a snake. We have to try to put you in jail for ten years for telling lies about us, Dick Schultz.
Marshal Joneson: Be quiet, Mr. Dellinger.
Mr. Dellinger: When it's all over, the judge will go to Florida, but if he has his way, we'll go to jail. That is what we're fighting for, not just for us, but for all the rest of the people in the country who are being oppressed.
A Spectator: Damn right. Assert ourselves.
Voices: Right on.
The Court: Take that man into custody. Mr. Marshal, take that man into custody.
Voices: Right on, right on.
Mr. Schultz: Into custody.
The Court: Into custody.
Voices: Right on.
Mr. Davis: Go ahead, Dick Schultz, put everybody in jail.
Mr. Dellinger: Dick Schultz is a Nazi if I ever knew one.
Mr. Schultz: Your Honor, will you please tell Mr. Davis to walk away from me?
Mr. Dellinger: Put everybody in jail."
* * *
"Mr. Schultz: Your Honor, we have 3500 material. We have 3500 252-A-1 and 252-A-2.
The Court: I would like to make a note of those if you will go slowly, please.
Mr. Schultz: 3500 252-A-1 and 252-A-2. -A-1, your Honor, is the complete document.
Mr. Dellinger: It is completely false." Official Transcript, Pages 19,669 through 19,673.
XXXI.
On February 6th, during the argument of a motion to restore Mr. Dellinger's bail, Mr. Dellinger arose and inserted the following remarks into the record:
"The Court: Is there anything you want to say in reply to Mr. Schultz?Mr. Dellinger: I would like to say that I have not --
The Court: Not you, sir.
Mr. Dellinger: I would just like to say I have not screamed, and --
The Court: I have asked your lawyer.
Mr. Dellinger: -- I have not used repeated vile or obscene language.
That's untrue.
The Court: Please sit down." Official Transcript, Page 19,904.
XXXII.
On February 7th, the court ruled against a special application on behalf of Mr. Dellinger concerning his confinement. At the close of the court session he made the following sarcastic remarks about the ruling:
"Mr. Dellinger: That wins respect.The Court: Mr. Marshal, the court will be in recess until Monday morning.
Marshal Dobrowski: Everyone please rise.
Mr. Dellinger: You now have my respect, Judge, I'm sure you know." Official Transcript, Pages 20,282-83.
Accordingly, I adjudge the defendant David T. Dellinger guilty of the several individual specifications of direct criminal contempt enumerated above.
RENNARD C. DAVIS
I.
On October 22, the defendant Davis arrived in the courtroom 18 minutes after the start of the court session. The Court had denied a motion to permit the defendant to bring a cake into the courtroom. Upon arrival the defendant Davis announced in a loud voice:
"Mr. Davis: They arrested the cake, Bobby. They arrested it." (Tr. p. 3,640)
II.
At the close of the court session on October 28, the defendant Davis refused to rise when the Court left the bench at the end of the session. (Tr. pp. 4,618-19)
III.
On October 29, at the conclusion of the morning session, the defendant Davis refused to rise when the Court left the bench. (Tr. pp. 4,728-29)
IV.
On October 29, when a recess was called during the afternoon session, the defendant Davis refused to rise when the Court left the bench. (Tr. p. 4,763)
V.
At the beginning of the morning court session on October 30, the defendant Davis refused to rise at the direction of the marshal when the Court entered the chamber. (Tr. p. 4,801)
VI.
On October 30, when the jury returned to the courtroom, the defendant Davis rose from his seat at the defense table and made the following speech to the jury:
"Ladies and gentlemen of the jury, I am trying to say he was being tortured while you were out of this room by these marshals. They came and tortured him while you are out of the room. It is terrible what is happening. It is terrible what is happening." (Tr. p. 4,845)
VII.
On October 30, when the Court called a recess, the defendant Davis refused to rise as the Court left the bench. (Tr. pp. 4,849-50)
VIII.
On October 30, at the beginning of the afternoon session the defendant Davis refused to rise in response to the marshal's directions when the Court entered the room. (Tr. p. 4,853)
IX.
On November 26, when the Court requested Mr. Dellinger to sit down, the defendant Davis commented in a loud voice from his place at the table:
"Mr. Davis: Why don't you gag all of us, Judge?The Court: Who said that?
Mr. Davis: Bobby Seale said that.
Mr. Schultz: The defendant Davis said that, your Honor.
The Court: The defendant Davis. Did you get that, Miss Reporter?" (Tr. p. 8,078)
X.
On December 15, Mr. Davis and other defendants laughed out loud at the Court while the Court was making a ruling on a motion. The defendant Davis acknowledged his laughter:
"Mr. Davis: It was me that was laughing, your Honor." (Tr. p. 11,179)
XI.
On January 9, the defendant Davis commented out loud from the defense table:
"Mr. Davis: Guilty until proven innocent." (Tr. p. 14,716)
XII.
On January 12, the Court refused to permit one of the attorneys to leave the room during the proceedings. Mr. Davis interrupted the orderly proceeding by rising and stating:
"Mr. Davis: Your Honor, my rights are being jeopardized by Mr. Weinglass not being able to leave the courtroom to interview witnesses.The Court: Will you sit down, sir.
Mr. Davis: If you want to protect my rights, I would kindly ask you to allow him to interview witnesses."
This outburst came in front of the jury. (Tr. p. 15,074)
XIII.
On January 13, during the direct examination of the witness Bond, the defendant Davis stated from the defense table in a voice loud enough for the jury to hear:
"Mr. Davis: This is a joke." (Tr. p. 15,364)
XIV.
On January 23, while the defendant Davis was on the stand as a witness on direct testimony, the Judge was required to make an evidentiary ruling. After the Court had considered a document and ruled that it could not come into evidence, Davis accused the Court of having ruled without reading the document.
"The Court: I shall not take it in.In the presence of the jury I will sustain the objection of the Government.
Mr. Weinglass: Your Honor has read the document?
The Court: I have looked it over.
The Witness: You never read it. I was watching you. You read two pages.
The Court: Mr. Marshal, will you instruct that witness on the stand that he is not to address me.
You, Mr. Marshal, you are closest to him.
The Marshal: Face this way.
The Witness: I will look at the Judge.
The Court: Do you have what the witness said, Miss Reporter?
The Reporter: Yes.
Mr. Weinglass: I didn't hear that.
The Witness: I said he didn't read the document. I watched him. He never looked at it.
The Court: He said 'You never read it,' looking at me.
The Witness: I meant the Judge did not read the document." (Tr. pp. 17,443-44)
XV.
On January 23, the witness Davis falsely accused the Judge of sleeping during the proceedings.
"A. You are making me memorize them. If I can read them -- is that admissible? The Judge is asleep.The Court: What did he say?
The Witness: I am sorry. I thought you had gone to sleep. I am sorry.
The Court: Oh, no. I am listening very carefully. I just wanted you to repeat. I wanted to be sure I heard what you said." (Tr. p. 17,542)
XVI.
During the time the witness Davis was being cross-examined by the Government Attorney, which is reported in the transcript, Davis continually volunteered remarks and observations. He did not restrict his answer to the scope of the question posed. The Court was required to instruct him no less than 43 times to restrict his answers to the scope of the question posed. No sooner were these orders given than they were violated over and over and over again. This violation of 43 Court orders in the period of three days must be considered contemptuous. (Tr. pp. 17,820 through 18,245)
XVII.
On January 28, the defendant Davis interrupted Mr. Schultz, the Assistant United States Attorney, to make the following remarks:
"Mr. Schultz: I wish Davis, who was such a gentle boy on the stand for the last couple of days, smiling at the jury and pretending he was just a little boy next door, would stop whispering and talking to me while I am talking.Mr. Davis: You are a disgrace, sir. I say you are a disgrace. I really say you are a disgrace." (Tr. p. 18,397)
XVIII.
On February 2, after an extended speech by Mr. Kunstler, there was an outburst of applause in the courtroom. Mr. Davis participated in that applause and admitted having done so. It is reported in the record as follows:
"The Court: Every one of those applauders --Voices: Right on. Right on.
The Court: Out with those applauders.
Mr. Davis: I applauded, too, your Honor. Throw me out." (Tr. p. 19,113)
XIX.
On February 2, during the testimony of the witness Lynskey, Mr. Kunstler brought the Reverend Abernathy into the courtroom. The Court admonished him for this disruptive tactic and the following comment was made by the defendant Davis:
"Mr. Kunstler: If it is disrupting to put a witness on the stand, I never heard of disrupting.Mr. Davis: I never heard of a case where you couldn't put a witness on the stand." (Tr. p. 19,160)
XX.
On February 4, during the testimony of the witness Riordan, Mr. Dellinger spoke out. In the ensuing disturbance, Mr. Davis inserted the following remarks:
"The Court: Take that man into custody. Mr. Marshal, take that man into custody.Voices: Right on, right on.
Mr. Schultz: Into custody.
The Court: Into custody.
Voices: Right on.
Mr. Davis: Go ahead, Dick Schultz, put everybody in jail." (Tr. p. 19,671)
XXI.
On February 4, when the Court announced that it had determined to revoke the defendant Dellinger's bail, there was an outburst in the courtroom. Mr. Davis inserted the following remark:
"The Court: This isn't the first word, and I won't argue this.Mr. Davis: This Court is bull shit.
The Court: There he is saying the same words again.
Mr. Davis: No, I say it."
* * *
"Mr. Rubin: Everything in this court is bull shit.
Mr. Davis: I associate myself with Dave Dellinger completely 100 per cent. This is the most obscene court I have ever seen."
* * *
"Mr. Davis. Mr. Rubin's wife they are now taking --
Mr. Rubin: Keep your hands off her. You see them taking away my wife?
Mr. Davis: Why don't you gag the press, too, and the attorneys, gag them." (Tr. pp. 19, 778-79)
XXII.
On February 5, after the Court had determined that it had heard sufficient argument it ordered Mr. Weinglass to discontinue arguing. The Court ruled. Mr. Davis then rose with the following statements:
"Mr. Weinglass: Your Honor will not permit me to continue a legal argument?The Court: You heard what I said. I deny the motion.
Mr. Davis: May we defend ourselves if our lawyers can't?" (Tr. pp. 19,800-01)
And slightly later, during the same argument:
"The Court: Have that man sit down. I will hear no further argument on this motion.Mr. Davis: Could I make a motion to defend myself since you won't let my lawyer represent me?" Official Transcript, Page 19,814.
XXIII.
On February 7th, at the conclusion of the government's rebuttal case, the defense moved for an early recess of the Saturday session. The purpose of this recess purportedly was to permit them to secure two additional witnesses and a certified copy of an Illinois court record. While the court was discussing this request with Mr. Kunstler, there was a loud laugh from the defense table. The court determined that there was no point in granting courtesies to parties unable to conduct themselves with a modicum of respect for the court. Mr. Davis then made several comments to the court:
"Mr. Davis: Is it not possible to put on our defense?"Mr. Davis: We can't put on our witnesses." (Tr. p. 20,270)
The jury returned, and the argument resumed in their presence. Mr. Davis, before the jury, interjected the following remark when Mr. Foran spoke in favor of the court's ruling:
"Mr. Davis: Save the Judge." (Tr. p. 20,276)
Shortly thereafter the court ruled adversely to Mr. Dellinger on a special application concerning his confinement. Mr. Davis greeted this ruling with the following sarcastic comments:
"Mr. Davis: That's fair. That's fair." (Tr. p. 20,282)"Mr. Davis: Have a good week-end, Judge." (Tr. p. 20,283)
Accordingly, I adjudge the defendant Rennard C. Davis guilty of the several individual specifications of direct criminal contempt enumerated above.
THOMAS E. HAYDEN
I.
On September 26th, during the opening remarks by Mr. Schultz, the defendant Hayden rose and shook his fist in the direction of the jurors. The following colloquy occurred:
"The Court: This will be but a minute, Mr. Marshal. Who is the last defendant you named?Mr. Schultz: Mr. Hayden.
The Court: Hayden. Who was the one before?
Mr. Schultz: Davis, and prior to that was Dellinger.
The Court: The one that shook his fist in the direction of the jury?
Mr. Hayden: That is my customary greeting, your Honor.
The Court: It may be your customary greeting, but we do not allow shaking of fists in this courtroom. I made that clear.
Mr. Hayden: It implied no disrespect for the jury; it is my customary greeting.
The Court: Regardless of what it implies, sir, there will be no fist shaking, and I caution you not to repeat it.
Mr. Hayden: May I use that gesture to my fellow defendants, my attorneys?
The Court: That applies to all of the defendants.
Mr. Marshal, bring the jury back." (Tr. 5)
II.
At the end of the afternoon session on October 28th, the defendant Hayden refused to rise in the customary manner when directed to do so by the Marshal. (Tr. 4,618-19)
III.
On October 29, while the Court was engaged in a colloquy with Mr. Seale and Mr. Schultz, Mr. Hayden rose and made the following comment:
"Mr. Seale: Will you please tell the Court the reason I am talking is because I didn't want a spontaneous response to any kind of activity that might go on. Will you please tell the Court I said to keep cool.Mr. Hayden: They did nothing when Bobby Seale was physically attacked. They did nothing.
The Court: Will you remain silent, you defendants, please. You have a lawyer.
Mr. Hayden: Just as he ordered them to.
The Court: Mr. Marshal, bring in the jury." (Tr. 4,635)
IV.
On October 29, at the close of the morning session, the defendant Hayden refused to rise in the customary manner when instructed to do so by the marshals. (Tr. 4,728-29)
V.
During the afternoon session of October 29 when the Court was compelled to call a recess, the defendant Hayden refused to rise again, despite the instructions of the marshal. (Tr. 4,763)
VI.
On October 30, at the beginning of the morning session, the defendant Hayden refused to rise in the customary manner when the Judge entered the courtroom. (Tr. 4,801)
VII.
On October 30, when the Court was compelled to deal with Mr. Seale because of previous outbursts, Mr. Hayden indulged in the following rhetoric, rising to address the Court:
"Mr. Hayden: Your Honor, could I address you?The Court: No, you may not, sir. You have a lawyer. That is what lawyers are for. I am not permitted under the decisions of the Supreme Court to let you speak.
Mr. Hayden: All I want to say is that --
The Court: Sit down, please.
Mr. Hayden: Bobby Seale should not be put in a position of slavery.
The Court: Mr. Marshal --
Mr. Hayden: He wants to defend himself.
The Court: Tell that man to sit down. What is his name?
Mr. Hayden: My name is Tom Hayden, your Honor.
The Court: All right.
Mr. Hayden: I would just like to --
The Court: Let the record show that Mr. Tom Hayden rose and addressed the Court, persisted in speaking despite the Court's direction that he sit down.
Bring in the jury, Mr. Marshal." (Tr. 4,843-44)
VIII.
On October 30, when the Court was compelled to direct the marshals to restrain Mr. Seale, the following incident occurred:
"Mr. Seale: The Judge is not -- he is not trying to give you no fair trial. That's what you are. You are lying. You know exactly what you are.Mr. Hayden: Now they are going to beat him, they are going to beat him.
Mr. Hoffman: You may as well kill him if you are going to gag him. It seems that way, doesn't it?
The Court: You are not permitted to address the court, Mr. Hoffman. You have a lawyer.
Mr. Hoffman: This isn't a court. This is a neon oven.
Mr. Foran: That was the defendant Hoffman who spoke.
The Court: Let the record show that the defendant Hoffman spoke.
Mr. Schultz: Prior to that it was Mr. Hayden who was addressing the jury while they were walking out of here.
Mr. Hayden: I was not addressing the jury. I was trying to protect Ms. (sic.) Seale. The man is supposed to be silent when he sees another man's nose being smashed?
Mr. Hoffman: The disruption started when these guys got into overkill. It is the same exact thing as last year in Chicago, the same exact hing.
The Court: Mr. Hoffman, you are directed to refrain from speaking you are ordered to refrain from speaking. It is clear that after this morning that I think we cannot go ahead. I would be glad to entertain first suggestions from the government and then from the defense as to whether or not this trial shouldn't be recessed until two o'clock. I am perfectly willing to try to continue and do my best to discharge the obligations of my office.
Mr. Foran: Your Honor, I would like to see if we couldn't continue.
The Court: What do you say?
Mr. Foran: I would like to see if we could continue.
The Court: All right. It will take some time to -- then we will take a brief recess.
Mr. Hayden: I thought you were going to ask the defendants.
Mr. Weinglass: Are we part -- weren't we being invited to participate in the dialogue between then --
Mr. Schultz: It is they who are disrupting this trial and now they want to make the decision as to whether or not we should proceed. It is incredible. It is they who are fostering this and they want to advise the court --
The Court: I have ordered a recess.
Mr. Weinglass: The court invited it.
The Court: Let the record show that.
Mr. Hayden: Stand up. Stand up. Don't let them have any pretext.
The Court: Let the record show that Mr. Hayden asked people --
Mr. Hayden: I ask the people there to do what they were told and they did it.
The Court: Mr. Hayden, do not try to fill my sentences out for me and you are not permitted to speak except as you may come to be a witness in this case. You are not permitted to speak out loud. You may, of course, consult with your lawyer." (Tr. 4,846-49)
IX.
On January 9, the defendant Hayden openly and blatantly laughed at the court while the court was attempting to make a ruling. (Tr. 14,824)
X.
On January 28, while the Assistant United States Attorney was making a statement to the court, Mr. Hayden rose and said:
"Mr. Hayden: That is not true." (Tr. 18,439)
XI.
On January 28 the court ruled that the defendants would not be permitted to call former United States Attorney General Ramsey Clark to the stand as a witness. The court entered the following order:
"The Court: I therefore sustain the objection of the government to having the defense call this witness, Attorney General Clark, before the jury, and I also order both counsel for the government and the defense not to refer to this hearing or the subject matter thereof before the jury after the jury is brought in.Mr. Schultz: Does that include the defendants also, your Honor? They speak more than their attorneys sometimes.
The Court: Yes, yes.
Mr. Schultz: Would you direct them also?
The Court: I would order the defendants not to discuss that matter in the presence of the jury. It would not be fair to either side." (Tr. 1,524-25)
The very next day Mr. Hayden directly and defiantly violated that order in the presence of the jury. The following occurred:
"Mr. Foran: Your Honor, the theatre is beginning again. May we have the jury excused, your Honor, since the government is unable to respond, since the government is bound to proper conduct in a courtroom?Mr. Hayden: Proper conduct? You wouldn't let the former Attorney General of the United States testify.
The Court: Ladies and gentlemen, I direct you to disregard the statement of Mr. Kunstler and I will have to excuse you with my usual orders.
Mr. Kunstler: I think the jury should hear the whole thing.
The Court: There are a lot of thoughts you have had here.
Mr. Foran: Your Honor, you will note, of course that Mr. Hayden shouted out in the courtroom about the Attorney General not testifying before the jury after a direct and clear direction from the court after the Attorney General had testified extensively on voir dire that it should not be mentioned before the jury. Mr. Hayden jumped to his feet, shouted that out while the jury was filing out of the room.
Mr. Weinglass: That statement is as accurate as other statements made by Mr. Foran. This time it was done right in the presence of the court. Your Honor must -- your Honor does not have to be reminded that if there is a shout in the courtroom and I think the fact that Mr. Foran had to state it is proof of the fact that it didn't occur. The court has never failed to note for the record when there was a disturbance in the courtroom.
Mr. Foran: Mr. Weinglass, honor and honesty are clearly demonstrated to the court, I'm sure. Your Honor saw Mr. Hayden make that statement. It was very loudly said, clearly said for purposes of influencing the jury improperly.
Mr. Weinglass: All right. Let's put it to the test of honesty. Did your Honor see Mr. Hayden jump up to his feet?
Mr. Schultz: It didn't jump up to his feet, but Mr. Hayden made the statement, Mr. Weinglass. Didn't Mr. Hayden make the statement, Mr. Weinglass? Did Mr. Hyaden (sic.) make the statement?
Mr. Dellinger: Save him, Dick.
The Court: The marshals will exclude from the courtroom anyone who is disorderly.
Mr. Schultz: Your Honor, would inquire of Mr. Weinglass whether or not he heard Mr. Hayden make the statement?
The Court: No. I will let the record determine that.
Mr. Hayden: Your Honor, I did make the statement. I did not intend to, as the government said. It came out because I lost my temper after listening to what Mr. Foran said. I am sorry that I did it. I did not intend it.
The Court: You got the answer.
Mr. Hayden: I did not understand --
Mr. Weinglass: He did not jump to his feet. He did not shout.
The Court: That rather convicts you, doesn't it, by your own client?" (Tr. 18,827-30)
Accordingly, I hereby adjudge the defendant Thomas Hayden guilty of the several individual contempts specified above.
ABBOTT H. HOFFMAN
I.
On September 26, during the opening statement by the Government, defendant Hoffman rose and blew a kiss to the jurors. (Tr. 9)
II.
On October 23, well after the date of the Court's order sequestering the jury and ordering the jury that they may see no newspapers, the defendant Hoffman held up a newspaper so the jurors might see the headline in the courtroom. The following colloquy occurred:
"Mr. Schultz: If the Court please --Mr. Kunstler: I would rather be directed.
Mr. Schultz: Before you direct him, if you are going to direct Mr. Kunstler, I would like to make one observation for the record. At 12:30 this morning or 12:30 early this afternoon, when the jury was adjourned, after the jury stood up, defendant Hoffman -- in fact, he had the same article that he has in front of him there --
Mr. Hoffman: Yes, I was going to show it to --
Mr. Schultz: He held up the newspaper for them to see and --
Mr. Hoffman: It ain't a newspaper. It is the Berkeley Tribe and doesn't tell lies, so it isn't a newspaper.
The Court: I wonder if you would ask your client -- you know, when I was out there trying cases, if my clients started to talk when another lawyer was speaking, Mr. Kunstler, I told him to remain quiet. Now, I can direct him to remain quiet. The United States Attorney was speaking to the Court. He is entitled to be heard just as you are entitled to be heard. We are not running a circus. This happens to be a court -- even though there are those who don't share views.
Mr. Kunstler: I would suggest, your Honor, then, that Mr. Hoffman be permitted to respond and not be interrupted --
The Court: I will not hear from your clients.
Mr. (sic.) Mr. Hoffman: I was just trying to be helpful, your Honor.
The Court: I will not hear from your client. I will let Mr. Schultz finish his observation." (Tr. 3,866-67)
III.
On October 28, at the close of the session, the defendant Hoffman refused to rise in the customary manner when directed to do so by the marshal. (Tr. 4,618-19)
IV.
On October 29, the following colloquy occurred:
"The Court: I will ask you to sit down, sir. You have a lawyer to speak for you. I haven't been told that you represent all of these defendants, either.Mr. Hoffman: We have been told that they are defendants too.
Mr. Forn: May the record show that that was the defendant Hoffman who made that --
The Court: Yes; yes.
Mr. Foran: The previous statement was made by the defendant Dellinger.
The Court: The last statement was made by the defendant Abbie Hoffman.
Mr. Hoffman: I don't use that last name anymore.
The Court: Will you remain quiet." (Tr. 4,639)
V.
At the close of the morning session on October 29, the defendant Hoffman refused to rise in the customary manner. (Tr.4,728-29)
VI.
On October 29, when the Court was compelled to call a recess during the afternoon session, the defendant Hoffman once more refused to rise in the customary manner. (Tr. 4,763)
VII.
On October 30, at the beginning of the court session, the defendant Hoffman refused to rise in response to the marshal's direction. (Tr. 4,801)
VIII.
On October 30, when the Court was compelled to deal appropriately with Mr.] Seale, Mr. Hoffman engaged in the following:
"Mr. Seale: The Judge is not -- he is not trying to give you no fair trial. That's what you are. You are lying. You know exactly what you are.Mr. Hayden: Now they are going to beat him, they are going to beat him.
Mr. Hoffman: You may as well kill him if you are going to gag him. It seems that way, doesn't it?
The Court: You are not permitted to address the Court, Mr. Hoffman. You have a lawyer.
Mr. (sic.) Mr. Hoffman: This isn't a court. This is a neon oven.
Mr. Foran: That was the defendant Hoffman who spoke.
The Court: Let the record show that the defendant Hoffman spoke." (Tr. 4,846)
And very shortly thereafter he continued in the following interchange:
"Mr. Hayden: I was not addressing the jury. I was trying to protect Mr. Seale. The man is supposed to be silent when he sees another man's nose being smashed?Mr. Hoffman: The disruption started when these guys got into overkill. It is the same thing as last year in Chicago, the same exact thing.
The Court: Mr. Hoffman, you are directed to refrain from speaking. You are ordered to refrain from speaking." (Tr. 4,847)
After this interchange the Court determined that a recess would be appropriate. When the Court left the bench the defendant Hoffman refused to rise in the customary manner. (Tr. 4,849)
IX.
On October 30, after a brief recess the Judge returned to the bench in the afternoon and the defendant Hoffman again refused to rise in the customary manner. (Tr. 4,853)
X.
On November 12, the defendant Hoffman and the other defendants openly laughed at the Judge while he was making a ruling. The following colloquy occurred:
"The Court: That observation will remain on the record and this loud laughter has got to cease.Mr. Hoffman: Mr. Weinglass, how many years do you have to laugh at?
Mr. Weinglass: I would further want to --
Mr. Hoffman: I am talking to my lawyer." (Tr. 6,257-59)
XI.
On November 26, after the Court made a ruling the following colloquy occurred:
"The Court: I decide each motion on its own papers, sir, and I am not aware of any witnesses that the Government has srought (sic.) to bring here. I don't know whether --Mr. Hoffman: We are very confused about this. Is the Government going to present our defense as well as our prosecution?
The Court: Have you gotten that -- what is the name of that defendant speaking?
Mr. Hoffman: Just Abbie. I don't have a last name, Judge. I lost it. We can't respect the law when it's tyranny.
The Court: Are you able to hear the defendant Hoffman speaking?
Mr. Hoffman: Abbie.
The Reporter: Yes, sir." (Tr. 8,081)
XII.
On December 15, the defendant Hoffman openly laughed at the Court during its ruling on a motion and admitted it.
"Mr. Hoffman: I was laughing." (Tr. 11,181)
XIII.
On December 30, while the defendant Hoffman was testifying on cross examination, the following colloquy occurred:
"The Court: I will admonish the jury -- the United States Attorney --The Witness: Wait until you see the movie.
The Court: -- if it is required that he be admonished.
The Witness: Wait until you see the movie.
The Court: And you be quiet.
The Witness: Well -- the movie's going to be better.
The Court: Did you get that last, Miss Reporter?
The Reporter: Yes, sir.
The Court: The last words spoken by the witness on the stand." (Tr. 13,013)
XIV.
On January 9, the defendant Hoffman openly laughed at the Court again. The following colloquy occurred:
"Mr. Kunstler: Oh, your Honor, there is a certain amount of humor when talking about a bathroom --The Court: Oh, I know that is your favorite reply.
Mr. Hoffman: I laughed, too." (Tr. 14,824)
XV.
On January 14, there was again an excessive and obnoxious outburst of laughter from the table of the defendants. The following colloquy occurred:
"Mr. Kunstler: I just don't want to get thrown in my chair by the marshals so I will have to sit down, but I just don't think it is fair to do that.Mr. Hoffman: I laughed anyway.
The Court: Will you be quiet, Mr. --
Mr. Hoffman: I laughed. It wasn't Jerry, it was me.
The Court: Did you get that, Miss Reporter?
Mr. Hoffman: At that ruling. I laughed.
The Court: That was Mr. Dellinger.
Mr. Kunstler: That was not Mr. Dellinger.
Mr. Schultz: Your Honor, that was Mr. Hoffman.
Mr. Kunstler: Your Honor --
Mr. Schultz: That was the defendant Hoffman speaking.
Mr. Hoffman: I was him." (Tr. 15,587)
XVI.
Withdrawn.
XVII.
On January 21st, the defendants were conducting a conference with one of their staff "members" at the defense table, while Mr. Foran was attempting to speak. The conference was loud enough to cause the following disturbance:
"The Marshal: Excuse me, Mr. Foran.Will you take your seat at the table, please.
Mr. Hoffman: We're organizing the defense.
The Marshal: Take your seat. Now, come on.
Mr. Hoffman: She's on the staff.
The Marshal: Mr. Kunstler, talking is not -- I'm asking him to take his seat.
Mr. Kunstler: I don't know what he was doing. He said he was talking to his wife.
Mr. Hoffman: We are talking in a low voice. He didn't even hear.
The Court: The defendant's place at the trial is at the defendants' table.
Mr. Hoffman: We were talking --
A Defendant: Let our staff sit at the table, everything would be all right.
Mr. Kunstler: Your Honor, he was sitting, just talking quietly with his wife, who is part of our staff.
The Court: I know. I know what he's doing. I require -- the rule of this court is that the defendants sit at the defendants' table.
Mr. Hoffman: How do we organize the trial?
The Court: I order Mr. Hoffman to sit at the defendants' table.
Mr. Hoffman: OK. We can just talk from here. Why don't you go out and talk to Paul Krassner and get the defense together.
I don't see how we can prepare the defense. We have to sit here seven days -- " (Tr. 16,791-92)
XVIII.
On January 23, while Mr. Foran and Mr. Dellinger were engaged in a colloquy, Mr. Hoffman inserted the following remarks:
"Mr. Foran: Your Honor, in the American system there is a proper way to raise such issues and to correct them.Mr. Dellinger: That was the proper way with Fred Hampton, wasn't it?
Mr. Foran: And correct them, your Honor by the proper governmental system, and there is a proper way to do that.
Mr. Hoffman: Correction the way you handled the war in Viet Nam, the same proper -- " (Tr. 17,376)
Shortly thereafter during the same incident a discussion ensued concerning the propriety of Mr. Kunstler's press conferences. Mr. Hoffman again interjected his comments. It's reported as follows:
"The Court: Yes, there is a law against a lawyer participating --Mr. Kunstler: No, there isn't. The rule is quite clear, and we know what it is.
The Court: There is a law against --
Mr. Hoffman: The Judge had an interview in Time Magazine.
The Court: A lawyer on television discussing the case.
Mr. Kunstler: Let's have what I said that was false. That was the accusation.
The Court: I will ask you both to sit down.
Mr. Hoffman: The Judge gave an interview to Time Magazine.
The Court: And I will instruct Mr. Weinglass to continue with the direct examination of this witness." (Tr. 17,379)
XIX.
On January 30, at the conclusion of the court's session, the Court asked the parties and attorneys to stay after the jury had been excused. The Court then broached the subject of the propriety of the public speeches given by the defendants. While this discussion was going on Mr. Hoffman again inserted his remarks gratuitously. The incident is reported as follows:
"The Court: I am not going to be put on the griddle about it. Now you are the lawyer. You are one of the lawyers for the defendants. And I think it is wholly inappropriate for defendants in a criminal case to make the kind of speech that was made and the matter of bail goes beyond mere protection for the Government that the defendant appear. Read the book.Mr. Weinglass: But I do not think the matter of bail should be held over their heads in order to reduce the amount of public speaking they are doing.
The Court: Oh, I don't --
Mr. Hoffman: I will be in Miami on Sunday afternoon with the same speech.
The Court: That expression -- did you hear that? I haven't heaed (sic.) lawyr (sic.) for the defendants try to quiet their clients during this trial when they spoke out, not once in four and a half months, not once." (Tr. 19,094-19,095)
XX.
On February 2, the Court had determined that argument on a particular question had been completed. The Court admonished Mr. Kunstler several times to sit down and desist arguing. The Court had previously ordered the defendants and their attorneys not to mention the fact that the former Attorney General of the United States, Ramsey Clark, had been excluded by order of the Court. Mr. Hoffman made several comments after the Court had indicated argument was completed, and he violated the Court's order concerning the Attorney General. The record states:
"The Court: You sit down, sir, or we will arrange to have you put down.Mr. Hoffman: Are you going to gag the lawyers, too?
A Voice: Chained to the chair --
Mr. Hoffman: You don't have to gag the jury, because they haven't been able to see our witnesses.
The Court: That was Mr. Hoffman that made that remark, Miss Reporter.
Mr. Hoffman: The past Attorney General of the United States, Ramsey Clark --" (Tr. 19,159)
Later in the day, the defendant Hoffman interrupted the Court to make the following sarcastic remark:
"The Court: All I have to repeat to you, Mr. Kunstler, is that I know you practice in the Southern District of New York. I have practiced there a lot as a lawyer before all of the then District Judges. I never saw --Mr. Hoffman: When it was under British control." (Tr. 19,199-200)
XXI.
On February 4, during the cross examination of the witness Phillips, Mr. Kunstler was examining the witness considering the witness' concept of how hippies dress. During that incident, Mr. Hoffman got up and danced around, lifting his shirt and baring his body to the jury, and engaged in antics designed to make light of the testimony of the witness. The incident is reported as follows:
"Q. You are the first one that hasn't identified him. (Hoffman) This is Mr. Hoffman over here.
(There was laughter in the courtroom.)
The Court: Let the record show that Mr. Hoffman stood up, lifted his shirt up, and bared his body in the presence of the jury --Mr. Kunstler: Your Honor, that is Mr. Hoffman's way.
The Court: -- dancing around.
(There was laughter in the courtroom.)
Mr. Kunstler: Your Honor, that is Mr. Hoffman's way.The Court: It is a bad way in a courtroom."
* * *
"Q. Mr. Phillips, my question before we had the little colloquy had to do with --
The Court: It was not a little colloquy, that was taking Mr. Hoffman to task for improper conduct in the courtroom.
By Mr. Kunstler:
Q. Before Mr. Hoffman was taken to task for improper conduct in the courtroo, (sic.) I asked you whether he was in hippie dress.
Mr. Hoffman: Thatwould (sic.) make it hippie dress, naked." (Tr. 19,622-24)
XXII.
On February 4, at the end of the session, the Court indicated that it had determined to revoke the bail of the defendant Dellinger. In the uproar which followed this decision Mr. Hoffman made the following remarks:
"Mr. Hoffman: You are a disgrace to the Jews. You would have served Hitler better. Dig it."* * *
"Mr. Hoffman: I heard you haven't let anybody free in four years. That's right, stop me."
* * *
"Mr. Hoffman: They are all our cases. We are bailing that guy out and every guy that gets arrested."
* * *
"Mr. Hoffman: No spectators while they put them in jail." (Tr. 19,781-82)
XXIII.
On February 5, after the Court had decided not to reinstate Mr. Dellinger's bail, Mr. Hoffman made the folowing remarks in the outburst which ensued:
"Mr. Hoffman: Your idea of justice is the only obscenity in the room. You schtunk! Vo den! Shanda fur de goyem!Obviously it was a provocation. That's why it has gone on here today because you threatened him with the cutting of his freedom of speech in the speech he gave in Milwaukee.
The Court: Mr. Marshal, will you ask the defendant Hoffman to --
Mr. Hoffman: This ain't the Standard Club.
The Marshal: Mr. Hoffman --
Mr. Hoffman: Oh, tell him to stick it up his bowling ball.
How is your war stock doing, Julie?
You don't have any power. They didn't have any power in the Third Reich either.
The Court: Will you ask him to sit down, Mr. Marshal?
The Marshal: Mr. Hoffman, I am asking you again to shut up.
Mr. Rubin: Gestapo.
Mr. Hoffman: Show him your.45.
Show him a.45. He ain't never seen a gun." (Tr. 19,801-02)
* * *
"Mr. Hoffman: Mies vander Rohe was a Kraut, too." (Tr. 19,803)
"Mr. Hoffman: You know you cannot win the fucking case. The only way you can is to [put] us away for contempt. We have contempt for this court, and for you, Schultz, and for this whole rotten system. That's the only justice. That is why [they want] this because they can't prove this fucking case." (Tr. 19,803-04)
* * *
"Mr. Hoffman: You put him in jail because you lost faith in the jury system. I hear you haven't lost a case before a jury in 24 tries. Only the Krebiozen people got away. We're going to get away too. That's why you're throwing us in jail now this way.
Contempt is a tyranny of the court, and you are a tyrant. That's why we don't respect it. It's a tyrant." (Tr. 19,814)
"Mr. Hoffman: The judges in Nazi Germany ordered sterilization. Why don't you do that, Judge Hoffman?" (Tr. 19,815)
"Mr. Hoffman: We should have done this long ago when you chained and gagged Bobby Seale. Mafia controlled pigs. Racist." (Tr. 19,816)
* * *
"Mr. Hoffman: No, I won't shut up, I ain't an automaton like you. I don't want to be a tyrant and I don't care for a tyrannical system. Best friend the blacks ever had, huh. How many blacks are in the Drake Towers? How many are in the Standard Club? How many own stock in the Brunswick Corporation?" (Tr. 19,816-17)
And later in the day Mr. Hoffman, at the end of the session, made the additional comment:
"Mr. Hoffman: It was every man. We'll see you