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1 Appendix to Opinion of FRANKFURTER, J., dissenting.

Mr. Sacher: And I should say that I haven't been laughing

The Court: You should have thought of that first. (P. 9167.)

Mr. Sacher: It used to be done to me on cross-examination.

The Court: What used to be done to you?

Mr. Sacher: This business of pointing out that a question was not in the precise words of the preceding question.

The Court: I recall nothing of that kind. I take it that is another one of your offensive comments attempting to make it appear that I am partial to the Government- (P. 9185.)

Mr. Sacher: But it is contradictory. It speaks of a rule and it speaks of "sometimes.” Now which is it? Is it sometimes or is it a general rule?

Mr. McGohey: I will withdraw the question and reframe it, your Honor, so that we can save the argument and get on.

The Court: I wish to state on the record that I am physically and mentally incapable of going through very much more of this wrangling and argument and I shall have to do something about it if it is continued and counsel refuse to obey my admonition. It is more than any human being can stand. (P. 9220.)

Mr. Isserman: If the Court please, may I be heard for a moment?

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

The Court: I suppose my mentioning my state of fatigue has merely served as a spur to additional argument this morning. (P. 9224.)

Defendant Dennis: ... In view of the biased and prejudicial rulings, restricting the

The Court: You mean bias of mine?

Defendant Dennis: Biased, as I understood them, your Honor.

The Court: I say, but you mean bias by me? Do you say that?

Defendant Dennis: On the part of the Court.

The Court: That is what I thought. I thought it might be well to have it clear what you claimed. (P. 9344.)

*

(Conduct involved in Specification XXXI-pp. 9376– 9377, 9403–9405; Aug. 1, 1949.)

(Conduct involved in Specification XXXII-pp. 9533– 9537, 9541-9543; Aug. 3, 1949.)

Mr. Sacher: ... I don't want to appeal to you on the basis of serving Mr. Isserman's comfort or Mr. Gladstein's or Mr. Crockett's

The Court: Or that golf player, Mr. McCabe.

Mr. Sacher: Well, he is not a golf player. I think you do him an injustice.

The Court: If he hadn't been playing golf for about a week when I saw him the other day, I miss my guess.

Mr. Sacher: No. I am sure if you are not a golf enthusiast then you are doing him an injustice; if you are, then you are just envious.

1

Appendix to Opinion of FRANKFURTER, J., dissenting.

The Court: Well, to tell you the honest truth, that is just putting the finger right on it. (P. 9688.)

The Court: You see, I have made certain rulings in the last few days which I felt the circumstances compelled me to make and which have led to the rulings that I am now making. I am determined to survive this case.

Mr. Sacher: Well, no one has any purpose that you shouldn't, your Honor.

The Court: And it is very true that there has been an evolution in my rulings, and necessarily so, and although all the defense, including some of the defendants and all of the lawyers are calling me all kinds of names, I was trying, according to my lights, to be extremely liberal, and I am quite sure that the record will show that

I then found that a lot of these matters, such as the one you speak of now, simply had to be cut out. They have no bearing on the case, and so I have had to change the character of my rulings on the basis of preventing cumulative evidence and on the basis generally of having a power that must exist to terminate a case within bounds, such as to be consistent with the maintenance of the health of the jurors and the Judge and everybody concerned. (P. 9689.)

I was.

(Conduct involved in Specification XXXIII-p. 9731; Aug. 5, 1949.)

(Conduct involved in Specification XXXIV-pp.9886– 9887; Aug. 10, 1949.)

*

Mr. Crockett: I object, your Honor, unless Mr. Gordon is specifying some particular classic by some particular author.

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

The Court: I think he will get around to it in a minute. Overruled.

Mr. Crockett: I thought we were not having these general questions, though.

The Court: Well, you see, I get the import of what you say. You are just trying to make it appear, perhaps for the benefit of the spectators, that I ruled one way this morning as to your general questions and that I am so prejudiced and biased that I ruled just the opposite on similar questions put by Mr. Gordon. Now, you know there is nothing in that. These questions are put on cross-examination here and they are perfectly proper, and I suggest that those little ironical insinuations be omitted. (P. 10228.)

*

Mr. Gladstein: I object to your Honor's question. The Court: Overruled.

Mr. Gladstein: Also to the manner in which your Honor asked the question.

The Court: There is nothing about the manner. Mr. Gladstein: And the gesture that accompanied

it.

The Court: I raised my hand and you criticized me a number of times and I see no basis for such criticisms. I am going to get at this

Mr. Gladstein: Naturally your Honor sees no basis for criticism but an attorney who represents and defends clients may have a different view.

The Court: What I object to is false statements of the things that are said to be done by me and not done by me. That is what I object to and you and your colleagues have filled this record with statements of things I am supposed to have done and I never did. Every time

1

DOUGLAS, J., dissenting.

you start that I am going to see the record is kept straight. (Pp. 10718-10719.)

(Conduct involved in Specification XXXV-p. 10748; Aug. 26, 1949.)

(Conduct involved in Specification XXXVI-pp. 10855–10856; Aug. 29, 1949.)

(Conduct involved in Specification XXXVII-p. 11213; Sept. 9, 1949.)

(Conduct involved in Specification XXXVIII-pp. 11418-11421; Sept. 14, 1949.)

(Conduct involved in Specification XXXIX-p. 11 432 ; Sept. 14, 1949.)

(Conduct involved in Specification XL-pp. 1206412065; Oct. 4, 1949.)*

MR. JUSTICE DOUGLAS, dissenting.

I agree with MR. JUSTICE FRANKFURTER that one who reads this record will have difficulty in determining whether members of the bar conspired to drive a judge from the bench or whether the judge used the authority of the bench to whipsaw the lawyers, to taunt and tempt them, and to create for himself the role of the persecuted. I have reluctantly concluded that neither is blameless, that there is fault on each side, that we have here the spectacle of the bench and the bar using the courtroom for an unseemly demonstration of garrulous discussion and of ill will and hot tempers.

I therefore agree with MR. JUSTICE Black and MR. JUSTICE FRANKFURTER that this is the classic case where the trial for contempt should be held before another judge. I also agree with MR. JUSTICE Black that petitioners were entitled by the Constitution to a trial by jury.

* The judgments of contempt on all specifications were filed on October 14, 1949.

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