Syllabus. UNGAR v. SARAFITE, JUDGE OF THE COURT OF GENERAL SESSIONS OF THE COUNTY OF NEW YORK. APPEAL FROM THE COURT OF APPEALS OF NEW YORK. No. 167. Argued February 24, 1964.-Decided March 30, 1964. An important prosecution witness in a state criminal trial was adjudged guilty of criminal contempt for his conduct as a witness in a post-trial hearing presided over by the judge before whom the contempt occurred at trial. A request for a continuance was denied, and the witness, himself an attorney, did not defend, arguing only that a continuance and a hearing before another judge should be afforded. The judge found the witness' exclamation at trial that he was being "coerced and intimidated and badgered" and that "[t]he Court is suppressing the evidence" to be disruptive contempt of court and sentenced the witness to 10 days' imprisonment and a fine. Held: 1. Criticism of the court's rulings and failure to obey court orders do not on the facts of this case constitute a personal attack on the trial judge so productive of bias as to require his disqualification in post-trial contempt proceedings. Pp. 583–585. 2. The court's characterization of the witness' conduct during the trial as contemptuous, disorderly and malingering was not a constitutionally disqualifying prejudgment of guilt, but at most was a declaration of a charge against the witness; nor can judicial bias be inferred from anything else in this record, particularly where nonsummary proceedings were held, dispassionately and decorously, after due notice and opportunity for hearing. Pp. 586-588. 3. The question of a continuance is traditionally within the trial judge's discretion, and not every denial of a request for more time violates due process, even if the party thereafter offers no evidence or defends without counsel; whether a denial of a continuance is so arbitrary as to violate due process depends on the facts of each case-here there was no constitutionally inadequate time to hire counsel and prepare a defense. Pp. 588-591. 12 N. Y. 2d 1013, 1104, 189 N. E. 2d 629, 190 N. E. 2d 539, appeal dismissed, certiorari granted, affirmed. Opinion of the Court. 376 U.S. Osmond K. Fraenkel and Emanuel Redfield argued the cause for appellant. Mr. Redfield also filed briefs for appellant. H. Richard Uviller argued the cause for appellee. With him on the brief was Frank S. Hogan. Osmond K. Fraenkel filed a brief for the New York Civil Liberties Union, as amicus curiae, urging reversal. MR. JUSTICE WHITE delivered the opinion of the Court. The appellant, Ungar, was adjudged guilty of criminal contempt for his conduct as a witness in a state criminal trial in a hearing presided over by the judge before whom the contempt occurred at trial. The New York Court of Appeals affirmed the conviction, 12 N. Y. 2d 1013, 1104, 189 N. E. 2d 629, 190 N. E. 2d 539, and we noted probable jurisdiction to consider whether the procedures seemingly authorized by $$ 750 and 751 of the New York Judiciary Law were consistent with the Due Process Clause of the Fourteenth Amendment. 375 U. S. 809. We have decided that the constitutional objections which this record shows to have been seasonably tendered to the New York courts and decided by them are without merit. I. The contempt proceeding grew out of the trial of Hulan Jack for conspiracy to obstruct justice and for violation of New York's conflict of interests laws. Ungar, a lawyer, was an important prosecution witness, familiar with the matters on which the charges were based and immune from prosecution for his testimony on these matters before the grand jury. From the outset of the second Jack trial, Ungar, a hostile prosecution witness, engaged in much wrangling with the prosecutor over the form of the questions asked and was unresponsive to various questions. Although counsel for the defendant did not object, the witness believed that the prosecutor's ques 575 Opinion of the Court. tions presented the defendant's case in a bad light or failed to elicit the whole truth. On several occasions the trial judge instructed the witness to answer the questions as they were asked, if he could, but not to rephrase the questions or to offer testimony gratuitously.2 1 In explaining his conduct at trial, Ungar stated in his petition to the New York Supreme Court, Appellate Division: "On the basis of facts known to petitioner, it is petitioner's belief and opinion that Hulan E. Jack is absolutely innocent of each and every of the crimes charged against him, including those of which he was found guilty at the second Jack trial. Petitioner believes that in truth and in fact evidence available to the District Attorney of New York County, which would have created a reasonable doubt as to Mr. Jack's guilt or innocence, was deliberately and wilfully suppressed, as will appear more fully hereinafter. One of the grounds of petitioner's conviction for criminal contempt is petitioner's statement to the foregoing effect during a moment of great emotional stress and physical and mental exhaustion at the second trial of Hulan E. Jack on November 25, 1960." 2 The following incidents are typical: "Q. You had discussions? "A. A preliminary discussion with Mr. Gale. If you want me to tell you what he said I will be glad to. "Q. Mr. Ungar, just confine your answers to my questions. "A. I am sorry. "Q. You discussed this matter of the lease with Mr. Gale and with Mr. Cymrot, is that correct? "A. No. I can't accept the way you put that question. I discussed "The Court: No. "The Witness: No, I can't accept that. "The Court: It is not a question of whether you accept it, it is a question of whether you can answer it. "The Witness: I can't answer that question that way. "The Court: Next question. "Q. The point is, you did discuss the matter of the lease with Mr. Cymrot and Mr. Gale, am I correct? "A. I don't know how to answer that question the way you frame it because "The Court: That is enough. Next question, Mr. Scotti. Did you talk to these people? [Footnote 2 continued on pp. 578-579] Opinion of the Court. 376 U.S. When Ungar failed to heed these instructions, the judge admonished him in chambers "to confine his answers to the questions" and to leave the defense to the accused's counsel; he warned the witness that he would hold him to the natural consequences of his acts. The pattern, "The Witness: Yes. "The Court: Did they talk to you? "The Witness: Yes. "The Court: About the lease, the terms of the lease? "The Witness: No. "The Court: Next question. "Q. Let me put this question to you, then: Did there come a time while you were discussing with the owners of 299 Broadway—I withdraw the question. When the lease, the proposed lease had been submitted by the Bureau of Real Estate to the Board of Estimate for their consideration, and before the scheduled date for a hearing before the Board of Estimate, which was October 24, 1957, is that when you discussed this matter of the proposed lease with the defendant, Mr. Jack? . . . "A. I can say only at this time I do not remember. I can only remember what you refreshed my recollection about, as to the testimony I gave in the Grand Jury on this subject. "Q. You say that when you are mindful of the fact that I had refreshed your memory with respect to this matter? "A. No, I am mindful of the fact that you read to me certain testimony that I had given before the Grand Jury on this matter, but I cannot recall the conversations. I didn't recall it the last time and I do not recall them now, but I will adopt what you said in the Grand Jury if I said it there. "Mr. Baker thereupon requested a conference at the bench. Counsel for both sides had a discussion with the judge at the bench out of the hearing of the jury, after which the following took place on the record in open court in the presence of the jury: "The Court: Now, Mr. Witness, the subject matter discussed at the bench with the Court related to your volunteering about the Grand Jury, concerning which you were not asked anything, and it created a problem here which the lawyers discussed, which Mr. Baker raised with the Court. There would have been no such problem if you had not referred to Grand Jury testimony. 575 Opinion of the Court. however, continued. On November 25, the third day Ungar was on the stand, the court instructed him to give a responsive answer to a question of apparent significance to the State's case. Thereupon Ungar, before answering, requested a recess, claiming that he was being "pressured and coerced and intimidated into testifying" and that he "Now, may I please ask you when you are asked a question, just answer yes or no, please. Don't volunteer anything. "Proceed. "Q. This is your recollection of your previous testimony? "A. Yes. "Q. Now, you did testify that you probably mentioned casually to him that you were buying this property and that the city was the lessee, and do you recall saying this at the last trial "Q. 'I can't tell you in substance because I have no independent recollection of any conversation. I probably mentioned casually to him that I was buying this property, and that the city is the lessee, and I think I said that half a dozen times too.' "Q. Was that correct? "A. Just a minute. I don't know what you mean by the last part of what you are reading. I probably said in my testimony half a dozen times, not that I spoke to him, the defendant, a half a dozen times. "The Court: Mr. Witness, try not to do that, please. Just listen to the question. The questioner is asking you, 'Did you testify as follows at the last trial?' Try to confine your answer to that question. "The Witness: May I look at the testimony? "A. No, I don't have the figures in front of me at this point. "I would like to explain the matter, which I think could simplify it very quickly. "The Court: No, no, no, Mr. Ungar. Please don't volunteer statements like that. "As I indicated to you before, we have lawyers who conduct litigation. They have a right to phrase questions. It is not for you to volunteer anything. If you want to explain, or if the question is not. satisfactory to you, that's none of your business. "Now, please, keep that in mind, will you." |