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    COOKE v. U.S., 267 U.S. 517 (1925)

    U.S. Supreme Court

    COOKE v. U.S., 267 U.S. 517 (1925)

    267 U.S. 517

    No. 311.

    Argued March 20, 1925.
    Decided April 13, 1925.

    [267 U.S. 517, 518]   Clay Cooke and J. L. Walker were each sentenced to 30 days' imprisonment for contempt by the United [267 U.S. 517, 519]   States District Court for the Northern District of Texas. The case was taken on error to the Circuit Court of Appeals for the Fifth Circuit, which affirmed the sentence of Cooke and reversed that of Walker. By certiorari, Cooke's sentence was brought here.

    Walker was defendant in a series of suits growing out of the bankruptcy of the Walker Grain Company. One of the cases, numbered 984, after a long jury trial resulted in a verdict against Walker of $56,000. The next day, while the court was open and engaged in the trial of another cause, and during a 10 minutes' recess for rest and refreshments, Walker, by direction of Cooke, delivered to the District Judge in his chambers, adjoining the courtroom, and within a few feet of it, a letter marked 'Personal,' as follows:

    Eleven days after this, on the 26th of February, the court directed an order to be entered with a recital of facts concluding as follows:

    The marshal arrested the defendants and brought them to court. The following statement shows in substance what then occurred:

    Mr. Clay Cooke said that he had not known of the attachment until that morning, that he would like time to prepare for trial and get witnesses for their defense, that there might be extenuating circumstances which would appeal to the court's sense of fairness and justice in fixing whatever penalty might be imposed and that he had attempted to secure counsel, but through illness or absence of those he sought he had failed up to that time.

    Judge Wilson intimated that he would not postpone the matter, and said:

    Mr. Cooke began to dictate a statement to be filed by him, to the effect that he and Walker believed that they had a good defense, and that the matters of fact stated [267 U.S. 517, 523]   in the letter as to the bias and prejudice of the judge were true.

    Then Mr. McCormick, for the court, interposed an objection that there ought not to be an accentuation of the contempt in the letter by a repetition of innuendoes and reflections on the court or by including them in the record.

    Mr. Clay Cooke said he had dictated and sent the letter after advising with reputable counsel, who had read it and believed it proper.

    Mr. Clay Cooke said it was his partner, Mr. Dedmon. He said the letter was dictated, and was not read by his client, J. L. Walker; that he had not made the contents public, and intended it only for the judge's eye, to relieve him from embarrassment; that the purpose was most friendly. After repeating a desire for counsel and the investigation as to the law of contempt in its application to this case, Mr. Cooke referred to the statement he had been attempting to dictate, and asked that he might make it fuller, because of certain interruptions, and to put in anything relevant to his defense.

    The district attorney then read the order for the arrest of the defendants set forth in the record in said cause; the defendants were directed to stand up and the court addressed them as follows: [267 U.S. 517, 525]   'Judge Wilson: The findings of fact, all of which are within the personal knowledge of this court, will be made in the order entered:

    Mr. Cooke asked that a bond be fixed pending appeal.

    [267 U.S. 517, 530]   Mr. Merrill E. Otis, of St. Joseph, Mo., for the United States.

    [267 U.S. 517, 532]  

    Mr. Chief Justice TAFT, after stating the case as above, delivered the opinion of the Court.

    The first objection to the sentence of the court, made on behalf of the petitioner, is that the letter written to the judge is not a contempt of the court. Section 21 of the Judicial Code (Comp. St. 988) contains the following:

    It is said that all that the petitioner intended to do by this letter was to advise the court of the desire of his client to have another judge try the four cases yet to be heard, and of his own desire to avoid the necessity of filing an affidavit of bias under the above section in those cases by inducing the regular judge voluntarily to withdraw. Had the letter contained no more than this, we agree with the Circuit Court of Appeals that it would not have been improper.

    But we also agree with that court that the letter as written did more than this. The letter was written the morning after the verdict, in the heat of the petitioner's evident indignation at the judge's conduct of the case and the verdict. At least two weeks would elapse before it was necessary to file an affidavit of bias in the other cases. 1 The letter was written and delivered pending further necessary proceedings in the very case which aroused the writer's anger. While it was doubtless intended to notify the judge that he would not be allowed to sit in the other cases, its tenor shows that it was also written to gratify the writer's desire to characterize in severe language, personally [267 U.S. 517, 534]   derogatory to the judge, his conduct of the pending case. Though the writer addressed the judge throughout as 'your honor,' this did not conceal, but emphasized, the personal reflection intended. The expression of disappointed hope that the judge was begenough and broad enough to overcome his personal prejudice against petitioner's client, and that the client would have the privilege of rebutting the whispered slanders to which the judge had lent his ear, and the declaration that his confidence in the judge had been rudely shattered, were personally condemnatory and were calculated to stir the judge's resentment and anger. Considering the circumstances and the fact that the case was still before the judge, but without intending to foreclose the right of the petitioner to be heard with witnesses and argument on this issue when given an opportunity, we agree with the Circuit Court of Appeals that the letter was contemptuous.

    But, while we reach this conclusion, we are far from approving the course of the judge in the procedure or absence of it adopted by him in sentencing the petitioner. He treated the case as if the objectionable words had been uttered against him in open court

    To preserve order in the courtroom for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court, when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court's dignity and authority is necessary. It has always been so in the courts of the common law, and the punishment imposed is due process of law. Such a case had great consideration in the decision of this court in Ex parte Terry, 128 U.S. 289 , 9 S. Ct. 77. It was there held that a court of the United States, upon the commission of a contempt in open court, [267 U.S. 517, 535]   might upon its own knowledge of the facts, without further proof, without issue or trial, and without hearing an explanation of the motives of the offender, immediately proceed to determine whether the facts justified punishment and to inflict such punishment as was fitting under the law.

    The important distinction between the Terry Case and the one at bar is that this contempt was not in open court. This is fully brought out in Savin, Petitioner, 131 U.S. 267 , 9 S. Ct. 699. The contempt there was an effort to deter a witness in attendance upon a court of the United States in obedience to a subpoena, while he was in a waiting room for witnesses near the courtroom, from testifying and the offering him money in the hallway of the courthouse as an inducement. This was held to be 'misbehavior in the presence of the court,' under section 725, R. S. ( now section 268 of the Judicial Code [Comp. St. 1245]). The court, speaking by Mr. Justice Harlan, said (page 277 [9 S. Ct. 702]):

    We think the distinction finds its reason, not any more in the ability of the judge to see and hear what happens in the open court than in the danger that, unless such an open threat to the orderly procedure of the court and such a flagrant defiance of the person and presence of the judge before the public in the 'very hallowed place of justice,' as Blackstone has it, is not instantly suppressed and punished, demoralization of the court's authority will follow. Punishment without issue or trial was so contrary to the usual and ordinarily indispensable hearing before judgment constituting due process that the assumption that the court saw everything that went on in open court was required to justify the exception; but the need for immediate penal vindication of the dignity of the court created it.

    When the contempt is not in open court, however, there is no such right or reason in dispensing with the necessity of charges and the opportunity of the accused to present his defense by witnesses and argument. The exact form of the procedure in the prosecution of such contempts is not important. The court, in Randall v. Brigham, 7 Wall. 523, 540 (19 L. Ed. 285), in speaking of what was necessary in proceedings against an attorney at law for malpractice, said:

    Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed. See Hollingsworth v. Duane, 12 Fed. Cas. 359, 360; In re Stewart, 118 La. 827, 43 So. 455; Ex parte Clark, 208 Mo. 121, 106 S. W. 990, 15 L. R. A. (N. S.) 389.

    The proceeding in this case was not conducted in accordance with the foregoing principles. We have set out at great length in the statement which precedes this opinion the substance of what took place before, at, and after the sentence. The first step by the court was an order of attachment and the arrest of the petitioner. It is not shown that the writ of attachment contained a copy of the order of the court, and we are not advised that the petitioner had an exact idea of the purport of the charges until the order was read. In such a case, and after so long a delay, it would seem to have been proper practice, as laid down by Blackstone (4 Commentaries, 286), to issue a rule to show cause. The rule should have contained enough to inform the defendant of the nature of the contempt charged. See Hollingsworth v. Duane, 12 Fed. Cas. 367, 369. Without any ground shown for supposing that a rule would not have brought in the alleged contemnors, it was harsh under the circumstances to order the arrest.

    After the court elicited from the petitioner the admission that he had written the letter, the court refused him time to secure and consult counsel, prepare his defense, and call witnesses, and this, although the court itself [267 U.S. 517, 538]   had taken time to call in counsel as a friend of the court. The presence of the United States district attorney also was secured by the court on the ground that it was a criminal case.

    The court proceeded on the theory that the admission that the petitioner had written the letter foreclosed evidence or argument. In cases like this, where the intention with which acts of contempt have been committed must necessarily and properly have an important bearing on the degree of guilt and the penalty which should be imposed, the court cannot exclude evidence in mitigation. It is a proper part of the defense. There was a suggestion in one of the remarks of the petitioner to the court that, while he had dictated the letter, he had not read it carefully, and that he had trusted to the advice of his partner in sending it; but he was not given a chance to call witnesses or to make a full statement on this point. He was interrupted by the court, or the counsel of the court, in every attempted explanation. On the other hand, when the court came to pronounce sentence, it commented on the conduct of both the petitioner and his client in making scandalous charges in the pleadings against officials of the court, and charges of a corrupt conspiracy against the trustee and referee in bankruptcy, and of employing a detective to shadow jurymen while in charge of the marshal, and afterwards to detect bribery of them, in proof of which the court referred to a sworn statement of the detective in its hands, which had not been submitted to the petitioner or his client. When Walker questioned this, the court directed the marshal to prevent further interruption. It was quite clear that the court considered the facts thus announced as in aggravation of the contempt. Yet no opportunity had been given to the contemnors even to hear these new charges of the court, much less to meet or explain them before the sentence. We think the procedure pursued was unfair and oppressive to the petitioner. [267 U.S. 517, 539]   Another feature of this case seems to call for remark. 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. United States (C. C. A.) 299 F. 283, 285; Toledo Co. v. United States, 237 F. 986, 988, 150 C. C. A. 636.

    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. We think, therefore, that when this case again reaches the District Court, to which it must be remanded, the judge who imposed the sentence herein should invite the senior Circuit Judge of the circuit to assign another judge to sit in the second hearing of the charge against the petitioner. [267 U.S. 517, 540]   Judgment of the Circuit Court of Appeals is reversed, and the case is remanded to the District Court for further proceedings in conformity with this opinion.


    [ Footnote 1 ] The next term of the court at Fort Worth would have been the second Monday in March (Judicial Code, 108 [Comp. St. 1095], so that the affidavit required by section 21 for disqualification need not have been filed before March 2d. The letter was written February 15th.

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