In re Sawyer/Opinion of the Court

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United States Supreme Court

360 U.S. 622

In re Sawyer

 Argued: May 19, 20, 1959. --- Decided: June 29, 1959


We think that our review may be limited to the narrow question whether the facts adduced are capable of supporting the findings that the petitioner's speech impugned Judge Wiig's impartiality and fairness in conducting the Smith Act trial and thus reflected upon his integrity in the dispensation of justice in that case. We deal with the Court's findings, not with 'misconduct' in the abstract. Although the opinions in the Court of Appeals and the argument before us have tended in varying degrees to treat the petitioner's suspension as disciplie i mposed for obstructing or attempting to obstruct the administration of justice, in a way to embarrass or influence the tribunal trying the case, such was neither the charge nor the finding or professional misconduct upon which the suspension was based. Since no obstruction or attempt at obstruction of the trial was charged, and since it is clear to us that the finding upon which the suspension rests is not supportable by the evidence adduced, we have no occasion to consider the applicability of Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192; Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295; or Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546, which have been extensively discussed in the briefs. We do not reach or intimate any conclusion on the constitutional issues presented.

Petitioner's clients included labor unions, among them the International Longshoremen's and Warehousemen's Union. Some of the defendants in the Smith Act trial were officers and members of that union and their defense was being supported by the union. The meeting at Honokaa was sponsored by the ILWU and was attended in large part by its members. The petitioner spoke extemporaneously and no transcript or recording was made of her speech. Precisely what she did say is a matter of dispute. Neither the Territorial Supreme Court nor the Court of Appeals saw the witness, but both courts, on reading the record, resolved matters of evidentiary conflict in the fashion least favorable to the petitioner. For the purposes of our review here, we may do the same. The version of the petitioner's speech principally relied upon by the Court of Appeals, 260 F.2d at 197-198, is derived from notes made by a newspaper reporter, Matsuoka, who attended the meeting and heard what the petitioner said. These were not Matsuoka's original notes the originals were lost-but an expanded version prepared by him at the direction of his newspaper superiors after interest in the speech was aroused by Matsuoka's account of it in the newspaper. [4] We set forth the notes in full as an Appendix to this opinion, and summarize them here, as an account of what petitioner said. The summary will illumine the basis of our conclusion that the finding that the petitioner's speech impugned the integrity of Judge Wiig or reflected upon his impartiality and fairness in presiding at the Smith Act trial is without support. The fact finding below does not remove this Court's duty of examining the evidence to see whether it furnishes a rational basis for the characterization put on it by the lower courts. See Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108. Speculation cannot take over where the proofs fail. We conclude that there is no support for any further factual inference than that petitioner was voicing strong criticism of Smith Act cases and the Government's manner of proving them, and that her references to the happenings at the Honolulu trial were illustrative of this, and not a reflection in any wise upon Judge Wiig personally or his conduct of the trial.

Petitioner said that the Honolulu trial was really an effort to get at the ILWU. She wanted to tell about some 'rather shocking and horrible things that go on at the trial.' The defendants, she said, were being tried for reading books written before they were born. Jack Hall, one of the defendants, she said, was on trial because he had read the Communist Manifesto. She spoke of the nature of criminal conspiracy prosecutions, as she saw them, and charged that when the Government did not have enough evidence 'it lumps a number together and says they agreed to do something.' 'Conspiracy means to charge a lot of people for agreeing to do something you have never done.' She generally attacked the FBI, saying they spent too much time investigating people's minds, and next dwelt further on the remoteness of the evidence in the case and the extreme youth of some of the defendants at the time to which the evidence directly related. She said 'no one has a memory that good, yet they use this kind of testimony. Why? Because they will do anything and everything necessary to convict.' Government propaganda carried on for 10 years before the jurors entered the box, she charged, made it 'enough to say a person is a communist to cook his goose.' She charged that some of the witnesses had given prior inconsistent testimony but that the Government went ahead and had them 'say things in order to convict.' 'Witnesses testify what Government tells them to.' The Government, she claimed, read in evidence for two days Communist books because one of the defendants had once seen them in a duffel bag. Unless people informed on such defendants, the FBI would try to make them lose their jobs. 'There's no such thing as a fair trial in a Smith Act case. All rules of evidence have to be scrapped or the Government can't make a case.' She related how in another case (in the territorial courts) she was not allowed to put in evidence of a hearsay nature to exonerate a criminal defendant she was representing, [5] but in the present case 'a federal judge sitting on a federal bench permits Crouch (a witness) to testify about 27 years ago, what was said then * * * here they permit a witness to tell what was said when a defendant was five years old.' She then declared, 'There's no fair trial in the case. They just make up the rules as they go along.' She gave the example of the New York Smith Act trial before Judge Medina, see Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, where she claimed 'The Government can't make a case if it tells just what they did so they widened the rules and tell what other people did years ago, including everything including the kitchen sink.' She declared, 'Unless we stop the Smith trial in its tracks here there will be a new crime. People will be charged with knowing what is included in books ideas.' Petitioner said in conclusion that if things went on the freedom to read and freedom of thought and action would be subverted. She urged her auditors to go out and explain what a vicious thing the Smith Act was.

The specific utterances in the speech that the Legal Ethics Committee and the Supreme Court found as furnishing the basis for the findings that petitioner impugned Judge Wiig's integrity were the references (which we have quoted in full above) to 'horrible and shockig' things at the trial; the impossibility of a fair trial; the necessity, if the Government's case were to be proved, of scrapping the rules of evidence; and the creation of new crimes unless the trial were stopped at once. We examine these points in particular, though of course we must do so in the context of the whole speech. In so doing we accept as obviously correct the ruling of the courts below that petitioner's remarks were not a mere generalized discourse on Smith Act prosecutions but included particular references to the case going on in Honolulu.

I. We start with the proposition that lawyers are free to criticize the state of the law. Many lawyers say that the rules of evidence relative to the admission of statements by those alleged to be co-conspirators are overbroad or otherwise unfair and unwise; [6] that there are dangers to defendants, of a sort against which trial judges cannot protect them, in the trial of numerous persons jointly for conspiracy; [7] and that a Smith Act trial is apt to become a trial of ideas. [8] Others disagree. But all are free to express their views of these matters, and no one would say that this sort of criticism constituted an improper attack on the judges who enforced such rules and who presided at the trials. This is so, even though the existence of questionable rules of law might be said in a sense to produce unfair trials. [9] Such criticism simply cannot be equated with an attack on the motivation or the integrity or the competence of the judges. And surely permissible criticism may as well be made to a lay audience as to a professional; oftentimes the law is modified through popular criticism; [10] Bentham's strictures on the state of the common law and Dickens' novels come to mind. [11] And needless to say, a lawyer may criticize the law-enforcement agencies of the Government, and the prosecution, even to the extent of suggesting wrongdoing on their part, without by that token impugning the judiciary. Simply to charge, for example, the prosecution with the knowing use of perjured testimony in a case is not to imply in the slightest any complicity by the judge in such actions. To charge that the Government makes overmuch use of the conspiracy form of criminal prosecution, and this to bolster weak cases, is not to suggest any unseemly complicity by the judiciary in the practice. [12]

In large part, if not entirely, Matsuoka's notes of petitioner's speech do not reveal her as doing more than this. She dwelt extensively on the nature of Smith Act trials and on conspiracy prosecutions. The Honolulu trial, to be sure, was the setting for her remarks, but they do not indicate more than that she referred to it as a typical, present example of the evils thought to be attendant on such trials. The specific statements found censurable (without which the bringing of the charge would have been inconceivable) are not in the least inconsistent with this, even though they must be taken to relate to the trial in progress. These specific statements are hardly damning by themselves, and clearly call for the light examination in context may give them; so examined, they do not furnish any basis for a finding of professional misconduct. She said that there were 'horrible' and 'shocking' things going on at the trial, but this remark, introductory to the speech, of course was in the context of what she further said about conspiracy prosecutions, Smith Act trials, and the prosecution's conduct. Petitioner's statement that a fair trial was impossible in context obviously related to the state of law and to the conduct of the prosecution and the FBI, not to anything that Judge Wiig personally was doing or failing to do. It occurred immediately after an account of the FBI's alleged pressuring of witnesses. The same seems clearly the case with the remark about the necessity of scrapping the rules of evidence. [13] The statement that if the trial went on to a conviction, new crimes-those of thought or ideas-would be created [14] could hardly be thought to reflect on the trial judge's integrity no matter how divorced from context it be considered. How any of this reflected on Judge Wiig, except insofar as he might be thought to lose stature because he was a judge in a legal system said to be full of imperfections, is not shown. To say that 'the law is an ass, a idiot' is not to impugn the character of those who must administer it. To say that prosecutors are corrupt is not to impugn the character of judges who might be unaware of it, or be able to find no method under the law of restraining them. Judge Wiig was not by name mentioned in the speech, and there was virtually none of petitioner's complaints that was phrased in terms of what 'the judge' was doing. For aught that appears from petitioner's speech, Judge Wiig might have been totally out of sympathy, as a personal matter, with the Smit Ac t, the practice of trying criminal offenses on a conspiracy basis, and the rules of evidence in conspiracy trials, but felt bound to apply the law as laid down by higher courts. [15]

Even if some passages can be found which go so far as to imply that Judge Wiig was taking an erroneous view of the law perhaps the comparison made between the case in the Territorial Courts where a hearsay statement was excluded and the admission of evidence in the Smith Act case might be of this nature, and much is made of it here though the Committee and the courts below made nothing of it-we think there was still nothing in the speech warranting the findings. If Judge Wiig was said to be wrong on his law, it is no matter; appellate courts and law reviews say that of judges daily, and it imputes no disgrace. Dissenting opinions in our reports are apt to make petitioner's speech look like tame stuff indeed. Petitioner did not say Judge Wiig was corrupt or venal or stupid or incompetent. The public attribution of honest error to the judiciary is no cause for professional discipline in this country. See In re Ades, D.C., 6 F.Supp. 467, 481. It may be said that some of the audience would infer improper collusion with the prosecution from a charge of error prejudicing the defense. Some lay persons may not be able to imagine legal error without venality or collusion, but it will not do to set our standards by their reactions. We can indulge in no involved speculation as to petitioner's guilt by reason of the imaginations of others.

But it is said that while it may be proper for an attorney to say the law is unfair or that judges are in error as a general matter, it is wrong for counsel of record to say so during a pending case. The verbalization is that it is impermissible to litigate by day and castigate by night. See 260 F.2d at page 202. This line seems central to the Bar Association's argument, as it appears to have been to the reasoning of the court below, [16] and the dissent here is much informed by it, but to us it seems totally to ignore the charges made and the findings. The findings were that petitioner impugned the integrity of Judge Wiig and made an improper attack on his administration of justice in the Honolulu trial. A lawyer does not acquire any license to do these things by not being presently engaged in a case. They are equally serious whether he currently in engaged in litigation before the judge or not. We can conceive no ground whereby the pendency of litigation might be thought to make an attorney's out-of-court remarks more censurable, other than that they might tend to obstruct the administration of justice. Remarks made during the course of a trial might tend to such obstruction where remarks made afterwards would not. But this distinction is foreign to this case, because the charges and findings in no way turn on an allegation of ostr uction of justice or of an attempt to obstruct justice, in a pending case. To the charges made and found, it is irrelevant whether the Smith Act case was still pending. Judge Wiig remained equally protected from statements impugning him, and petitioner remained equally free to make critical statements that did not cross that line. We find that hers cannot be said to have done so. Accordingly, the suspension order, based on the charge relating to the speech, cannot stand.

II. Petitioner was also charged by the Committee, and found by the Supreme Court, to have misconducted herself by interviewing a juror shortly after the completion of the Smith Act trial. The juror had become mentally unsettled, in an obvious fashion, very shortly after the rendition of the verdict and apparently as a result of his participation on the jury. It was at this point that petitioner, having been first requested by his sister, serveral times interviewed him, and spoke with members of his family. The Supreme Court recognized that it had been common practice for attorneys in the Territory to interrogate jurors after the rendition of their verdicts and their discharges. Nevertheless, it found her action professional misconduct. The versions of the witnesses as to exactly what transpired at the interviews varied considerably, but the court made no findings of fact on the matter, and it is difficult to grasp the basis on which it singled petitioner's juror interviews out for censure against the pattern of a common practice of such interviews in the Territory. [17] While there is clearly some delicacy involved in approaching a juror who has become mentally unsettled, evidence that a juror was incompetent at the time of the rendition of the verdict might be admissible to impeach a verdict where evidence of the jury's mental and reasoning processes is not. While the interviews were undertaken under unusual circumstances, it is difficult to say whether the circumstances furnish more or less justification than is present in the average juror interview-which we do not read the Supreme Court's opinion as holding censurable, except as to the future. [18] The Legal Ethics Committee had charged petitioner with concealment of facts in her affidavit as to the juror interview filed with Judge Wiig in support of her motion for a new trial for the Smith Act defendants, but we do not find anything in the Supreme Court's opinion agreeing with these charges.

But we need not explore further what the basis was for the Territorial Supreme Court's finding on this charge. As to it, the court said that the suspension order it rendered on the charge relating to the speech would suffice. [19] The Court of Appeals was of opinion that if the charge as to the speech were insupportable, in the present posture of the case the suspension could not stand, 260 F.2d at page 202, and we agree. We cannot read the Supreme Court's opinion as imposing any penalty solely by reason of the interview with the juror. Accordingly, we do not believe it would be appropriate in the posture of the case for us finally to adjudicate the validity of the finding of misconduct by reason of the interviews.

III. The Court of Appeals expressed doubt as to its jurisdiction to hear the appeal from the Territorial Supreme Court, and respondent here urges that that court was without jurisdiction. Since our jurisdiction to hear the case on the merits must stand or fall with that of the Court of Appeals, we examine the objections. They are without merit. The Court of Appeals for the Ninth Circuit has jurisdiction of appeals from final judgments of the Supreme Court of the Territory of Hawaii, pursuant to 28 U.S.C. § 1293, 28 U.S.C.A. § 1293, in 'civil cases where the value in controversy exceeds $5,000, exclusive of interest and costs.' [20] The suspension order would have the effect of removing petitioner from the practice of law for at least one year, and she filed an uncontroverted affidavit that her annual net income from the practice of law had been for years, and would continue foreseeably, in excess of $5,000. [21] It is insisted that petitioner's right cannot be reduced to monetary terms, because it is 'priceless,' and so it is, in a manner of speaking; but besides the professional aspects of her status, her continuance in a specific form of gainful employment is in issue, see Bradley v. Fisher, 13 Wall. 335, 355, 20 L.Ed. 646, and hence the jurisdictional amount was present.

Finally, we find no inhibition as to the scope of review we have given the judgment of the Territorial Court. The Territorial Court is one created under the sovereignty of the National Government, O'Donoghue v. United States, 289 U.S. 516, 535, 53 S.Ct. 740, 744, 77 L.Ed. 1356, and hence this Court (once the jurisdictional Act is satisfied) is not limited as it would be in reviewing the judgment of the highest court of a State. Of course this Court and the Courts of Appeals must give the Territorial Courts freedom in developing principles of local law, and in interpreting local legislation. See Bonet v. Texas Co., 308 U.S. 463, 60 S.Ct. 349, 84 L.Ed. 401; DeCastro v. Board of Commissioners, 322 U.S. 451, 454-458, 64 S.Ct. 1121, 1122-1125, 88 L.Ed. 134. But it hardly needs elaboration to make it clear that the question of the total insufficiency of the evidence to sustain a serious charge of professional misconduct, against a backdrop of the claimed constitutional rights of an attorney to speak as freely as another citizen, is not one which can be subsumed under the headings of local practice, customs or law.

Reversed.

APPENDIX TO OPINION OF MR. JUSTICE BRENNAN.

The Expanded Notes of the Reporter, Matsuoka, Relative to Petitioner's Speech.

'She followed Samuel M. Bento, who said he wanted to say good morning to the Tribune-Herald, pointing generally toward the paper's reporter from Hilo and the paper's Honokaa correspondent who were sitting side by side. Mrs. Sawyer preceded Jack W. Hall. She began speaking at 11 a.m. and ended 11:30 a.m.

'Notes on what she said in the order of how she proceeded: The trial is really a trial of Jack Hall to which has been added six others. It's to get at the ILWU. 'Said she wanted to tell about some rather shocking and horrible things that go on at the trial.

'She was appointed some years ago (3 or 4 years ago) by a court to defend a man who had no money to hire his own counsel. He was charged with pimping and procuring. The complaining witness in the case was a woman who had been in business 20 years in the territory who claimed she had reformed and repented but this vicious man had driven her back again into the business. It turned out that the hotel where he had kept her had 27 doors unlocked. Likened this to pukas in the Smith act.

'Said men in power are trying to put men in jail because of their thoughts. and books written before he was born.

'One of the reasons Jack Hall is on trial is because it is said he once got a book, the Communist Manifesto, written in 1898, before Jack Hall was a gleam in his father's eye.

'She quoted from manifesto: a spectre is haunting Europe; the spectre is communism. she explained spectre means ghost. said spectre still seems to be haunting people today.

'She turned next to conspiracy. noted there was a conspiracy trial in 1937 of filipino brothers. conspiracy to advocate violence and criminal sindicalism. explained conspiracy means agreement. government never has used conspiracy when it had a case. when it hasn't got enough evidence it lumps a number together and says they agreed to do something. the government does not say * * * advocated overthrow but says they agreed to. conspiracy means to charge a lot of people for agreeing to do something you have never done.

'touched on myth of agents of fbi. they're supposed to be extra special. radio programs, movies, publicity tell how wonderful they are. but when you see hundreds of tax fraud cases go by and when they spend most of their time investigating people's minds it's time to cut them down to size. said she had told this to a honolulu gathering. labor day? fbi agents should be called federal cops. said has slogan: put away your thoughts here come the federal cops. cops push people around.

'paul crouch. difficult to understand why he's witness. but he was here in 1924; because he was once in Hawaii, so guess that's why. he testified what he did in russia in 1927. he told what he was told by generals etc. usually you cannot testify on what people told you when there is no chance for those to be cross examined. aileen fujimoto was four years old then. what has crouch's galloping over the plains of russia got any bearing on her. jack hall was 13. but the government goes on with testimony for two weeks on what crouch did between 1927 and 1941 without ever mentioning the defendants.

'he told of infiltration of the armed forces and plots * * * it used to be the idea that a man is responsible for what he did and said-not what someone else did. not a single one of the defendants was of age at the time he's talking about. the jury is not going to pay attention to what Crouch says. but it's the old smear. The prosecution sayscro uch did this and that and we (prosecution) say the defendants are communist party members so they must have done the same.

'but government propaganda has been going on for 10 years before the jurors went into the jury box.

'it's enough to say a person is a communist to cook his goose. the government says there was an agreement to violate the smith act which was passed in 1940. then the defendants agreed to violate it before it was passed. crouch said he was at a communist meeting in 1941 and saw five or six people there. it was the first time he'd seen them. but he was satisfied when he came to honolulu 12 years later that one was Koji Ariyoshi. she urged audience try to recall what they did 12 years ago. said she can't recall details. god knows no one has a memory that good. yet they use this kind of testimony.

'why? because they will do anything and everything necessary to convict.

'some of the witnesses testified differently from what they testified previously. the government knows this but deliberately goes ahead and have him say things in order to convict. mentioned izuka in reinecke trial testimony. said something about izuka saying he didn't know the party advocated overthrow of government until he got out of party.

'witnesses testify what government tells them to. just as they read portions of books like overthrow the government and leave out the rest which says czarist government showing it dealt with russia.

'johnson testimony. said he came back from san francisco with communist books and literature in a duffle bag. he said when he got to Honolulu he told Jack Hall the names of some of the books. then the government for two days reads from books supposed to have been in the duffel bag. they're not dealing with what jack hall said. on cross examination johnson said he did not tell the names of the books but just showed jack hall the duffel bag. so jack hall violated the smith act because he saw a duffel bag with some books on overthrowing the government in it. it's silly. why does the government use your money and mine to put people in jail for thoughts

'the government has carried on a barrage of propaganda for many years and expects people in the jury to have hysteria just hearing about communist is enough to jail. said has a friend who worked for sears roebuck and has family of three children and wife. he made a terrible mistake one time. in 1941 he lived in the same house as jack hall. the fbi wanted him to testify. he said i feel jack hall is one of the finest people i have known. apparently the fbi didn't like this. so they suggested to sears and roebuck to fire him because he wouldn't cooperate with the government.

'he wasn't fired so they went to the Los Angeles and Chicago offices of sears and roebuck and convinced them he had to be fired. he was fired because he refused to be a stool pigeon and informer. the government gets away with it by making people fear that if they don't do as it wants they'll be branded red and lose their jobs.

'there's no such thing as a fair trial in a smith act case. all rules of evidence have to be scrapped or the government can't make a case.

'referred to her habeas corpus move in the palakiko-majors case.

'said a woman came to her with report she heard vernon stevens say he bet a confession out of one of them. she testified but the supreme court refused to let the evidence in because vernon stevens was not here and had no chance to deny this. with the same situation a federal judge sitting on a federal bench permits crouch to testify about 27 years ago. what was said then. in the previous case it was the life and death of one. and yet here they permit a witness to tell what was said when a defendant was five years old.

'there's no fair trial in the case. they just make up the rules as they go along. the first smith act case was in 1949 of the new york top leaders. attorneys contended they should have the right to say what they did from 1924. medina permitted them to say what the defendants themselves did from 1934 on. but the government can't make a case if it tells just what they did so they widened the rules and tell what other people did years ago, including everything including the kitchen sink.

'unless we stop the smith trial in its tracks here there will be a new crime. people will be charged with knowing what is included in books. ideas.

'mentioned los angeles trial in which someone said there was no evidence that someone had instructed persons not to read some books.

'said there'll come a time when the only thing to do is to keep your children from learning how to read. then not only will unions be destroyed by (sic) so will freedom of thoughts and action. there'll be dark ages of thought control when people won't be able to speak freely in taverns and other places.

'she urged audience to go out and explain what a vicious thing the smith act is. people are tried for books written years ago.'

Notes[edit]

^4  The portion of the article, in the Hilo Tribune-Herald, that deals with petitioner's speech is as follows:

'Mrs. Sawyer, speaking for a half hour, spoke of 'some rather shocking and horrible things that go on at the trial.'

'There's 'no such thing as a fair trial in a Smith act case,' she charged. 'All rules of evidence have to be scrapped or the government can't make a case.'

'They 'just make up the rules as they go along,' she told her listeners.

"Unless we stop the Smith act trial in its tracks here' there will be a 'new crime' that of knowing what's in books and will lead to 'dark ages of thought control,' asserted the chic and attractive woman lawyer.

'She referred to reading by the prosecution of books 'supposed to have been in a duffel bag' owned by a witness, Henry Johnson. She urged her listeners to tell others 'what a vicious thing the Smith Act is.' Persons are 'tried for boos w ritten years ago' by others, she said.'

^5  The case was Application of Palakiko and Majors, 39 Haw. 167, affirmed sub nom. Palakiko v. Harper, 9 Cir., 209 F.2d 75. The case was a habeas corpus application, in which petitioner sought to put in evidence the statement of a woman that a police officer had said that he had beaten a confession out of petitioner's client. The Territorial Supreme Court held a lengthy evidentiary hearing on the petition, which covered many other matters, and at it excluded the evidence in question. The court's opinion does not discuss the point, but it is mentioned in the Court of Appeals' opinion on affirmance. 209 F.2d at pages 102 103.

^6  One of the classic statements of this point of view is Mr. Justice Jackson's concurring opinion in Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790: 'But the order of proof of so sprawling a charge (as conspiracy) is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of the existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. The naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction.'

^7  'The unavailing protest of courts against the growing habit to indict for conspiracy in lieu of prosecuting for the substantive offense itself, or in addition thereto, suggests that loose practice as to this offense constitutes a serious threat to fairness in our administration of justice. * * *

'The interchangeable use of conspiracy doctrine in civil as well as penal proceedings opens it to the danger, absent in the case of many crimes, that a court having in mind only the civil sanctions will approve lax practices which later are imported into criminal proceedings. * * *

'* * * (T)he order of proof of so sprawling a charge is difficult for a judge to control. * * *

'* * * There are many practical difficulties in defending against a charge of conspiracy which I will not enumerte. * * *

'(A survey conducted) which accords with out observation, will hardly convince one that a trial of this kind is the highest exemplification of the working of the judicial process.' Jackson, J., concurring in Krulewitch v. United States, 336 U.S. 440, 445 446, 451-452, 453, 454, 69 S.Ct. 716, 719, 722, 723.

^8  This idea has been expressed in this Court also. See the dissenting opinion of Mr. Justice Douglas in Dennis v. United States, 341 U.S. 494, 581, 583, 71 S.Ct. 857, 903, 904, 95 L.Ed. 1137, and the separate opinion of Mr. Justice Black in Yates v. United States, 354 U.S. 298, 343-344, 77 S.Ct. 1064, 1089-1090, 1 L.Ed.2d 1356.

^9  '(L)oose practice as to this offense (conspiracy) constitutes a serious threat to fairness in our administration of justice.' Jackson, J., concurring in Krulewitch v. United States, 336 U.S. 440, 446, 69 S.Ct. 716, 719.

^10  'England has just completed a century of struggle for procedural reform, and it is to the energy and determination of the public, and not to the leadership of the bar, that the credit for the present English practice is due.' Sunderland, The English Struggle for Procedural Reform, 39 Harv.L.Rev. 725, 727 (1926).

^11  Both were at the bar. Bentham was of Lincoln's Inn and Dickens of the Middle Temple.

^12  '(I)t is for prosecutors rather than courts to determine when to use a scatter gun to bring down the defendant * * *.' Jackson, J., concurring in Krulewitch v. United States, 336 U.S. 440, 452, 69 S.Ct. 716, 722.

^13  Again cf. Jackson, J., concurring in Krulewitch v. United States, 336 U.S. 440, 453-454, 69 S.Ct. 716, 723: 'The hazard from loose application of rules of evidence is aggravated where the Government institutes mass trials.'

^14  In Yates v. United States, 354 U.S. 298, 318, 77 S.Ct. 1064, 1076, this court said: 'We are thus faced with the question whether the Smith Act prohibits advocacy and teaching of forcible overthrow as an abstract principle, divorced from any effort to instigate action to that end, so long as such advocacy or teaching is engaged in with evil intent. We hold that it does not.'

The convictions of petitioner's Smith Act trial clients were all reversed in the Court of Appeals on the authority of Yates, and judgment ordered entered for them. Fujimoto v. United States, 9 Cir., 251 F.2d 342.

^15  Lower federal court judges have in the past questioned conspiracy indictment practice. See the statement of the 1925 Conference of Senior Circuit Judges, as quoted in Annual Report of the Attorney General, 1925, pp. 5-6; L. Hand, J., in United States v. Falcone, 2 Cir., 109 F.2d 579, 581.

^16  For example, the petitioner argued in the Court of Appeals that a law professor at Yale had made criticisms in more pungent terms than hers. Said the court: 'We would uphold Professor Rodell's right to say from his Yale vantage point just about what he wants to say. But when he speaks he is not simultaneously harassing the very court in which he is trying an unfinished case.' 260 F.2d at page 200.

^17  The court said: 'It appears from the transcript which we have examined pursuant to the pretrial order herein, that her first visit to said David Fuller (the juror) was made by the respondent licensee upon request by his sister. It also appears that it has not been uncommon, if not in fact common practice, heretofore and within the Territory of Hawaii, for attorneys as well as others to interrogate jurors, after rendition of verdict by them, as to what may have been decisive in reaching a verdict.

'However, even if she relied upon the request of his sister when she first visited David Duller, and upon a belief that it was common practice, locally, to interrogate trial jurors after verdict, such reliance thereon is not acceptable as excuse for her repeated visits to and studied interrogation of Fuller under the circumstances and as set forth in her affidavit, incorporated in the bill of particulars * * *.' 41 Haw. at pages 423-424.

^18  The court gave a warning to the future conduct of the Bar that interrogation of jurors as to occurrences in the jury room and as to the reasons why the jury reached its verdict would be at the peril of the interrogator. 41 Haw. at page 425.

^19  'However, in the instant matter, this court will let its hereinbefore expressed disciplinary order-suspending the said respondent licensee from the practice of law in the territorial courts for one year and requiring her to pay costs-suffice, although also deeming gross misconduct her said repeated interviews with and interrogations of David Fuller.' Ibid.

^20  'The courts of appeals for the First and Ninth Circuits shall have jurisdiction of appeals from all final decisions of the supreme Courts of Puerto Rico and Hawaii, respectively in all cases involving the Constitution, laws or treaties of the United States or any authority exercised thereunder, in all habeas corpus proceedings, and in all other civil cases where the value in controversy exceeds $5,000, exclusive of interest and costs.' 28 U.S.C. § 1293, 28 U.S.C.A. § 1293.

^21  'Where the power of any court of appeals to review a case depends on the amount or value in controversy, such amount or value, if not otherwise satisfactorily disclosed upon the record, may be shown and ascertained by the oath of a party to the case or by other competent evidence.' 28 U.S.C. § 2108, 28 U.S.C.A. § 2108.

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