THE COURT CALLS RETREAT

...The power is at an end when the need for its use is ended...

...These lawyers could have been allowed to enjoy all their constitutional rights, and if they were guilty, they would eventually have been punished...

...Any other judge would have had to reach the same result Judge Medina did...

...Of course immediate action was proper to restore order in the chaotic courtroom the Terrys left behind them...

...One to four months had gone by since the last time the various lawyers had misbehaved...

...Justice Black and Mr...

...On the same day the following appeared, buried in a long list of orders of the Court announced by the Chief Justice: "Sachet et al...

...Denied...

...But what was needed to restore order there may not be necessary in another case, and if the summary power isn't needed it may not be used...

...Grant, too, that there seems to be no chance that anything they might say at a hearing, or any evidence they might introduce, could possibly justify their behavior...

...But if the killer is captured alive, the policeman may not then get revenge by shooting the prisoner...

...a hearing on the contempt charge would not have interfered with it...

...Mr...

...And this, the Court murmured further, isn't even important enough for the Supreme Court to be bothered hearing the case...

...If a killer starts shooting, a policeman may shoot back, and he may shoot to kill...

...Justice Field finished reading the opinion and immediately sentenced the Terrys for contempt...

...This is the evil of concentration camps...

...The Court had whispered so softly that not even trained newspaper men caught what it was saying...

...Had it shouted boldly what it was doing, it might have awakened many who have been asleep thus far to the tragic way in which fear of Communism is causing us to short circuit our own liberties...

...The kind of case where this sort of action is proper is illustrated by the most famous case where it was used...

...Justice Douglas are of the opinion certiorari should be granted...

...v. United States...

...The dope peddler is entitled to his day in court before being convicted, though he may have committed his crime in broad daylight under the eyes of half the polica force...

...For it becomes extremely difficult, in today's hysterical atmosphere, to represent a defendant of this sort without acting in a way which the judge may think improper...

...The right to a hearing, of course, is not ended by this case...

...The only result achieved by following the other course, and shortcutting the usual and desirable procedures of the law, was to provide fodder for the mill of Communist propagandists...

...It was frequently marred by heated arguments between the judge and the lawyers, and by other, even more serious, disturbances...

...Instead the criminal must be given a trial before he may be punished for his misdeeds...

...But the lawyer who is asked to appear before one who is, can practically count on being found in contempt, sentenced to jail, and disbarred...

...Under those circumstances, the lawyer is most likely to have trouble if the judge happens to be hoping for promotion to a higher court, or anxious to see his name in newspaper headlines...

...This, then, is what the Supreme Court allowed to happen when it refused to consider the case of Sachet v. United States...

...This he did in the following way: As soon as the jury had brought in its verdict against the Communist leaders, and had been discharged...

...And Justice Black hastened to warn: "The right to be heard in open court before one is condemned is too valuable to be whittled away under the guise of 'demoralization of the court's authority.' " III Would the court's authority have been demoralized if the lawyers for the Communists had been given a hearing before another judge...

...The trial had been brought to an end...

...There is an exception to due process, known as the "summary contempt power," which permits a judge to act without a hearing...

...When a marshal tried to remove her from the courtroom, her husband knocked the marshal down, and reached for a gun...

...And it is well that it is so...

...Though he has no lawyer and cannot subpoena witnesses, the man who is given a fair hearing before being punished has some protection against the whim of a despot...

...The lawyers had behaved better in the closing months of the trial...

...There is a connection between these two cases disposed of in such varying ways June 4. For Harry Sacher, and the five other persons whose appeal the Court refused to hear, were the lawyers for the eleven Communists whose conviction under the Smith Act the Court upheld with such a mighty roar...

...Terry...

...Already other judges have used it to justify sending other lawyers to jail without letting them be heard...

...On the other hand, the right to a hearing could stand by itself, without these added refinements...

...And so they have...

...But if the newspapers had run an account of what the Court had done, and what it meant, I have no doubt the average reader would have said: "Good, they got what they were asking for...

...The summary contempt power is sensible enough...

...In five separate opinions, running to more than 100 pages, the Court shouted the news that the Smith Act is constitutional, that the Constitutional guarantee of freedom of speech is no protection for those who would conspire to teach and advocate the overthrow of the government by force and violence...

...Judge Medina said, "Now I turn to some unfinished business...

...Here the right of the individual to be heard is made to give way to the right of all to have an orderly system of courts...

...The summary power is, after all, nothing more than a weapon which the courts are given to use in their own defense, and the need for the court to defend itself must be clear before the weapon may be used...

...If those in authority could say who may have a hearing and who may not, they would have that most arbitrary power against which "due process of law" was intended to guard...

...Indeed it may well be that the only lawyer who will escape conviction for contempt when he is representing someone accused of a political crime will be the lawyer who does a poor job for his client...

...After he had been led out of the room, he drew a knife and forced his way into the office where the marshal was keeping Mrs...

...Surely order had been restored to the courtroom since then...

...But this case does have consequences beyond the fate of these six men which are important...

...The Supreme Court will not allow the execution of a murderer without a trial merely because it allowed the imprisonment of these lawyers without a hearing...

...It is because this right to a hearing is so fundamental that we guarantee it even to those we think guilty, no matter how much the delay may be resented by a public outraged by the crime...

...He called the lawyers to the front of the court, read a lengthy document charging them with some 40 acts of contempt of court, immediately found them guilty, and sentenced them to jail...

...These reactions miss the point...

...It was the appeal from these sentences which the Supreme Court refused even to consider...

...Most judges, of course, are not of this sort...

...As Judge Clark put it, in dissenting in the Court of Appeals, "the law must both appear and be inexorable rather than vindictive...

...And much was to be lost...

...Public pressure is high, the verdict of the jury is nearly a foregone conclusion, and the lawyer must fight hard at every turn if his client is to have any chance...

...The excellent mid-Western newspaper I read carried no mention of the Supreme Court's refusal to hear the appeal...

...On June 4 of this year the Court both shouted and whispered...

...It is unfortunate that it spoke in a whisper...

...This is the evil of the lynch mob, that it decides for itself that its victim is so guilty that he need not be tried before being punished...

...The Supreme Court has repeatedly told judges that in punishing for contempt they are to use "the least possible power adequate to the end proposed...

...As every newspaper reader knows, the trial was something of a running battle between Judge Harold Medina and the counsel for the accused...

...They were as guilty of contempt as anybody could be...

...It permits a judge to act to restore order when there have been breaches of courtroom etiquette so serious as to prevent the court from functioning...

...Clearly Judge Medina could have had these lawyers punished without using the most drastic power a judge has—the one narrow exception to the requirements of due process of law...

...Under these circumstances nothing was to be gained by depriving these lawyers of their right to be heard...

...The fact remains that due process of law requires that a hearing be given to those who are clearly guilty, as well as those who may be innocent...

...Terry, was a woman of low morals...

...Terry stood up and started shouting names at Justice Field...

...Judge Medina's firm warnings to the lawyers throughout the trial were well known, and the editorialists of the nation applauded when he carried out his threats by sentencing them to prison...

...The man who is not allowed even to speak in his own defense has none...

...All of this was spelled out by Justice Hugo Black, speaking for a unanimous Supreme Court a few years ago, when he said that the summary power is to be used only "where immediate punishment is essential to prevent 'demoralization of the court's authority' before the public...

...Justice Field was reading an opinion which implied that one of the parties, a Mrs...

...The Supreme Court in recent years has been alert to strike down any limitations on these rights, and it has been wise to do so...

...apparently Judge Medina's warnings had convinced the lawyers not to toy with the authority of the court...

...Even the more sophisticated reader, mindful of the Sixth Amendment's guarantee of "the right to a speedy and public trial," would probably have said: "What good would a trial have done them...

...Unlike the alarm clock, the Court sometimes does both at once, and then one must listen very closely, lest what the Court has whispered be drowned out by the shouting...

...Grant that the conduct of the lawyers during the trial was, as Judge Charles E. Clark has called it, "abominable...

...CHARLES ALAN WRIGHT, a graduate of the Yale Law School— "where Fred Rodell taught me that it is possible to write about law without sounding like a lawyer"—is now an assistant professor of law at the University of Minnesota...

...For no liberty is more important in marking the difference between a police state and a free country than the right of a person accused of a crime to be heard in his own defense...

...I think not...

...It is the same way with the summary contempt power...

...II The other safeguards with which the Constitution surrounds the prosecution of criminals—the jury system, the right to have a lawyer, the right to be confronted with opposing witnesses and to compel the presence of friendly witnesses—are important and desirable...

...Petition for writ of certiorari to the Court of Appeals for the Second Circuit...

...What the Supreme Court whispered in those few lines is that a man may now be sent to jail, on the order of a judge prejudiced against him, without even first being heard in his own defense...

...And when the appeal of these lawyers came before the Court of Appeals for the Second Circuit, in New York, two of the members of that court thought that Judge Medina's action fell within this power...

...Those who are familiar with the ways of courts may say: "This is all very well, but judges have always had the power to punish for contempt without any hearing or any due process of law...

...But all of these assume the fundamental right to be heard, and without it they would be meaningless...

...They weren't hurt by not having a hearing...