Due Process Limitations on Contempt Powers: Impartial Tribunal.
In Cooke v. United States,235 Chief Justice Taft uttered some cautionary words to guide trial judges in the use of their contempt powers. “The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. Cornish v. The United States, 299 Fed. 283, 285; Toledo Company v. The United States, 237 Fed. 986, 988. The case before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows.”236
Sacher v. United States237 grew out of a tempestuous trial of eleven Communist Party leaders in which Sacher and others were counsel for the defense. Upon the conviction of the defendants, the trial judge at once found counsel guilty of criminal contempt and imposed jail terms of up to six months. At issue directly was whether the contempt charged was one that the judge was authorized to determine for himself or whether it was one that under Rule 42(b) could be passed upon only by another judge and only after notice and hearing, but behind this issue loomed the applicability and nature of due process requirements, in particular whether the defense attorneys were constitutionally entitled to trial before a different judge. A divided Court affirmed most of the convictions, set aside others, and denied that due process required a hearing before a different judge. “We hold that Rule 42 allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion, he may do so without extinguishing his power. . . . We are not unaware or unconcerned that persons identified with unpopular causes may find it difficult to enlist the counsel of their choice. But we think it must be ascribed to causes quite apart from fear of being held in contempt, for we think few effective lawyers would regard the tactics condemned here as either necessary or helpful to a successful defense. That such clients seem to have thought these tactics necessary is likely to contribute to the bar’s reluctance to appear for them rather more than fear of contempt. But that there may be no misunderstanding, we make clear that this Court, if its aid be needed, will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever. But it will not equate contempt with courage or insults with independence. It will also protect the processes of orderly trial, which is the supreme object of the lawyer’s calling.”238
In Offutt v. United States,239 acting under its supervisory powers over the lower federal courts, the Court set aside a criminal contempt conviction imposed on a lawyer after a trial marked by highly personal recriminations between the trial judge and the lawyer. In a situation in which the record revealed that the contumacious conduct was the product of both lack of self-restraint on the part of the contemnor and a reaction to the excessive zeal and personal animosity of the trial judge, the majority felt that any contempt trial must be held before another judge. This holding, that when a judge becomes personally embroiled in the controversy with an accused he must defer trial of his contempt citation to another judge, which was founded on the Court’s supervisory powers, was constitutionalized in Mayberry v. Pennsylvania,240 in which a defendant acting as his own counsel engaged in quite personal abuse of the trial judge. The Court appeared to leave open the option of the trial judge to act immediately and summarily to quell contempt by citing and convicting an offender, thus empowering the judge to keep the trial going,241 but if he should wait until the conclusion of the trial he must defer to another judge.
- 267 U.S. 517, 539 (1925).
- The Toledo Company case that the Court cited was affirmed in Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918).
- 343 U.S. 1 (1952). See Dennis v. United States, 341 U.S. 494 (1951).
- 343 U.S. at 11, 13–14.
- 348 U.S. 11 (1954).
- 400 U.S. 455 (1971). See also Johnson v. Mississippi, 403 U.S. 212 (1971); Holt v. Virginia, 381 U.S. 131 (1965). Even in the absence of a personal attack on a judge that would tend to impair his detachment, the judge may still be required to excuse himself and turn a citation for contempt over to another judge if the response to the alleged misconduct in his courtroom partakes of the character of “marked personal feelings” being abraded on both sides, so that it is likely the judge has felt a “sting” sufficient to impair his objectivity. Taylor v. Hayes, 418 U.S. 488 (1974).
- 400 U.S. at 463. See Illinois v. Allen, 397 U.S. 337 (1970), in which the Court affirmed that summary contempt or expulsion may be used to keep a trial going.