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

and this, that and the other thing, and you can keep that up until the cows come home; that is all right, and I take no umbrage at it. (P. 4799.)


The Court: Why all of the defendants are smiling broadly.

Defendant Gates: Why certainly we are.
Defendant Potash: Certainly we are.

The Court: We are getting back to that country club atmosphere again. Well, there isn't going to be any country club atmosphere in my court.

Mr. Gladstein: When a man hears something that is ludicrous and absurd to the extreme I suppose he is permitted the human reaction of a smile of contempt.

The Court: That to me is in the same line as some of the comments we have had in the past. It may seem

ery funny to the defendants. They seem to enjoy it, but I don't think it is, and their laughing is not going to have any effect. (P. 4805.)


Mr. Gladstein: That is what we get. Your Honor asked why people are smiling, but there is an irony to it.

The Court: I had occasion to put a stop to some of that before. I am familiar with the practice in criminal cases of trying to laugh something off, and I am not going to have anything but order in my court. When the defendants get hilarious and start laughing and smiling and that sort of thing it is going to be stopped. You can put that in your book. (Ibid.)

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(Conduct involved in Specification XVII-p. 4807; April 22, 1949.)


Appendix to Opinion of FRANKFURTER, J., dissenting.

(Conduct involved in Specification XVIII-pp. 48294834, 4860–4861; April 22, 1949.)

Mr. Isserman: If the Court please, I would like to ask the Court to take judicial notice of the fact that the man Haym Solomon is dead some several years. He was a figure in the American Revolution.

The Court: This is the first time I ever have become acquainted with the gentleman. I don't see what that has got to do with it. You Communists have a way of taking all kinds of names.

Mr. Sacher: I object to that remark and ask your Honor to strike that remark and to direct the jury to disregard it.

The Court: I will deny the motion.

Mr. Gladstein: I wish to say that the remark was intended to be derogatory to the defendants and it couldn't have been intended any other way. I object to it.

The Court: You have done a lot of —

Mr. Gladstein: I would like an objection rather than an invitation to engage in repartee.

The Court: What is the objection that you want me to rule on?

Mr. Gladstein: The objection is that your Honor made a remark which is inappropriate, improper for a Judge sitting in a trial to make because it was intended to convey some kind of slur against the defendants.

The Court: Well, you see it is the old story. Mr. Isserman gets up and has his say and if I remain quiet and let you spread eagle all over the place everything is fine. But the minute I say something it is judicial misconduct. I thought the statement I made was well borne out by the Appendix to Opinion of FRANKFURTER, J., dissenting. 343 U.S.

record, you have objected to it, and there it is. Now that's that. (Pp. 4956–4957.)

(Conduct involved in Specification XIX-pp. 4968– 4970; April 25, 1949.)

Mr. Gladstein: Your Honor, may I correct one statement that I think the Court made inadvertently?

The Court: You may correct any statement that you made. I think you had better leave me alone for the time being. (P. 4970.)

The Court: Yes, I am now proceeding to read.

Mr. Crockett: I am very glad to notice that, your Honor.

The Court: What do you mean by that, Mr. Crockett?

Mr. Crockett: I take it you said it for my benefit. . You looked directly at me and I wanted you to know that I had heard it.

The Court: Well, I did not look directly at you and I did not mean that for you but for all of the counsel for the defendants, who seem to be sedulously watching and clocking the time I use looking at papers and things of that kind.

Incidentally, I consider that an impertinence.

It may be assumed, when I am looking at papers, and I rule on them, that I read them, without having counsel make remarks of that character. (Pp. 5132–5133.)



Appendix to Opinion of FRANKFURTER, J., dissenting.

Mr. Gordon: Mr. Sacher thinks that this is

very funny.

Mr. Sacher: I do.

The Court: He is a great fellow. There is no question he can give more indication of what he thinks about by tittering and laughing and giggling.

Mr. Sacher: I move that that be stricken on the ground it is utterly unwarranted and not founded on the record and solely as a diversion.

The Court: I take it that that is intended to be another imputation on my motives, Mr. Sacher. You are piling up quite a record for yourself in this case. (P. 5256.)


(Conduct involved in Specification XX—p. 5302; May 2, 1949.)

(Conduct involved in Specification XXI-p.5526; May 4, 1949.)

Mr. Gladstein: The statement that your Honor made and the implication and innuendo that it carried.

The Court: I haven't the remotest idea what you are talking about.

Mr. Gladstein: I will be very happy to tell you.
The Court: Go ahead.

Mr. Gladstein: One of the attorneys rose to ask a question of the Court and your Honor distorted that question by asking another question, the purpose of which was to convey an implication that the question of the attorney was improper, that the attorney was indeed impliedly stating something that reflected on the Court's motives and the Court seized that opportunity to make that kind of innuendo.

The Court: Pretty ingenious.

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

Mr. Gladstein: It was; but not mine.

The Court: You are trying to throw some more imputations on my motives and showing what I thought in the first place was evidently not well justified. (P.5700.)

Mr. Gladstein: Your Honor, my assignment of misconduct was at the remarks of the Court, and I therefore submit it was improper for the Court in making—in giving any instruction to the jury on that subject, to do so in the manner that your Honor just did, and I assign therefore your remarks as misconduct.

The Court: Well, I must be very bad, all these misconducts that you have charged, and I must say it is very sad. (P. 5794.)

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The Court: No, you may not have them marked. They may be submitted at some later time if you desire, but I am not going to have them submitted now for publicity purposes.

Mr. Sacher: I object to that statement. These are not put in for publicity purposes. This is put in to protect the rights of the defendants. I think that is an improper remark.

The Court: That can all be done without having all this in the record now. That is my ruling for the present. Later they may be properly identified. I have had experience with a lot of prior things that surprised me.

Mr. Sacher: I object to that remark.
The Court: You may object your head off.

Mr. Sacher: I object to that one too. It is highly prejudicial to the interests of all the defendants and I

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