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Appendix to Opinion of FRANKFURTER, J., dissenting.

jury box, but the questions will be not only to them but to the others who may be sitting in the courtroom. Otherwise the repetition of the questions will be such as to utterly wear me out, or anyone else under the circumstances, and be utterly unnecessary. (P. 2665.)

The Court: Well you know, it seems so easy for the Court to send a letter. My pre-occupations now are such that I simply could not do it. It is hard for people to realize the burden that I have been carrying here and the many details of one kind or another that I have to take care of, and I don't think it would be proper for me to do it anyway, but the main question is whether there would be some special hardship to you. (P. 2707.)

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Mr. McCabe: I just want to give you the citation. It is Farnsworth vs. Sanford in [115] Fed. (2d) 375.

The Court: Thank you. Let me glance at this, but I can tell you all that I am not going to dash off any determination on some question of law by glancing at a case or two on the spur of the moment. I don't like to see judges do that and I don't do it myself. I have tried here to give every question that comes up careful consideration, and that has been one of the things that has been wearing me out here because I have been getting propositions of law in rather close proximity to one another. (P. 3121.)

Mr. Sacher: It is very strange that on the occasions when you scratched your head and pulled your ear, we were speaking and not Mr. McGohey.

The Court: Maybe you were not watching me.

Appendix to Opinion of FRANKFURTER, J., dissenting. 343 U.S.

Mr. Sacher: I just want to say that your conduct at all times—you see, you are doing it again.

The Court: I know, you are going to say I am corrupt and I am disqualified. You called me all those things before. Now you can run the catalogue again and I will listen patiently. Make it just as bad as you


Mr. Sacher: Your Honor, I am certainly aware of the fact that if I bear false witness against your Honor in anything I have said that I am subject to disciplinary measures and I am not inviting disciplinary measures by making false statements.

The Court: You mean that I will take disciplinary measures against you because you said I scratched my head? Don't be absurd, Mr. Sacher. Don't be absurd.

Mr. Sacher: The point I am making is that in every available means your Honor is conveying to the jury your lack of sympathy if not hostility to the defendants, their counsel's presentation of the case, and in these circumstances I want certainly to note on behalf of my clients a vigorous objection to your Honor's conduct and I wish to join Mr. Gladstein in the motion to declare a mistrial by the withdrawal of a juror.

The Court: Motion denied. (Pp. 3316–3317.)

Mr. Gladstein: ... There is nothing unusual about that request and we make it, and we ask the Court to really give some consideration to it.

The Court: You know, that word “really," there, that is the way you do. You put that little sly insinuation in, as much as to say that heretofore I haven't really given the matter any consideration. (P. 3332.)


Appendix to Opinion of FRANKFURTER, J., dissenting.

Mr. Gladstein: I move that the remarks you have just made concerning the enjoyment

The Court: I see them smiling, sneering and snickering there. The jury undoubtedly sees it as well.

Mr. Gladstein: Just a minute. If your Honor please, I assign those remarks as prejudicial misconduct on the part of the Court. I assign as misconduct your refusal to permit me to make an objection.

The Court: When did I refuse?

Mr. Gladstein: By your interruption at the present time and by pyramiding the misconduct which I am assigning. I ask the Court to instruct the jury

The Court: You are now told that you may go ahead and make your remarks in extenso. (P. 3769.)

(Conduct involved in Specification XIII-pp. 3942– 3943; April 4, 1949.)

Mr. Gladstein: Your Honor, I am allowed, am I not, to assign as misconduct remarks of the Court that, as a lawyer, I think constitute misconduct?

The Court: You may attack me all you want.
Mr. Gladstein: That is not what I said.

The Court: You may claim that I have been guilty of judicial misconduct of every name, nature and description, that is your right—and I shall take no offense at it.

Mr. Gladstein: I object to the Court's remarks and assign the Court's last remark as misconduct.

The Court: Very well. (P. 4028.)


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Appendix to Opinion of FRANKFURTER, J., dissenting. 343 U.S.

(Conduct involved in Specification XIV--pp. 4058– 4059; April 5, 1949.)


Mr. Crockett: I must object to that statement, your Honor, as suggesting to Mr. Gordon how he can get what he seems to be troubled about getting out of this witness.

The Court: Mr. Crockett, it is the function of the Court here to administer justice which I am trying to do to the best of my ability. Now you must know that such comment as you just made is not right.

Mr. Crockett: But I think the Court appreciates the fact

The Court: Now I have been standing for all kinds of picking on me by the lawyers for the defense here and I am not going to raise any great issue about this one, but I really-I really think if it gets to a point where the Judge may not indicate what he thinks is the proper thing to do, it has reached a strange and pitiful state of affairs. (P. 4177.)

(Conduct involved in Specification XV-pp. 42284229; April 7, 1949.)

Mr. Gladstein: May I call your Honor's attention to the fact that because you just took umbrage at an objection which Mr. Isserman made as a lawyer

The Court: I took no umbrage.
Mr. Gladstein: --you then reacted-
The Court: I suppose you begin-
Mr. Gladstein: May I finish, your Honor?
The Court: -to talk about my inflection of voice-


Appendix to Opinion of FRANKFURTER, J., dissenting.

Mr. Gladstein: No, I am not talking about your inflection.

The Court: But I am not taking any umbrage at all. Mr. Gladstein: But, your Honor

The Court: But I am not going to have a long-drawnout discussion of something that is perfectly clear to me. (P. 4403.)

Mr. Gladstein: I assign your Honor's handling of my objection as misconduct.

The Court: I am getting used to these charges of misconduct. I don't think there has ever been a case where so many charges of misconduct have been made with so little foundation. (P. 4622.)

(Conduct involved in Specification XVI-pp. 4787– 4788; April 19, 1949.)

Mr. Gladstein: I ask your Honor to strike that evidence, and I will also assign, as I did before, your Honor's statement as misconduct because it gives the impression that there is some possible relationship, which there cannot be, between this kind of statement and the charges in the case.

The Court: How can I rule that the evidence is inadmissible without necessarily giving the inference that it has a bearing on the case. And every time a Judge rules that way, the doctrine that you gentlemen have developed here is that that is judicial misconduct. Now I can't stop lawyers from calling me names and saying I am guilty of judicial misconduct and that I am prejudiced,

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