Cooke v. United States, 267 U.S. 517 (1925)
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Cooke v. United States
No. 311
Argued March 20, 1925
Decided April 13, 1925
267 U.S. 517
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Syllabus
1. On the day following a trial in the district court in which a verdict had been rendered against his client, in a case in which other necessary proceedings remained pending, and while the court was engaged in trying another case, but during a short recess, an attorney at law addressed a letter, marked "personal," to the district judge and caused it to be delivered to him at his chambers next the courtroom, in which the writer not only advised the judge of the desire of his client to have another judge try four other cases yet to be heard, and of his own desire to avoid the necessity of filing in those cases an affidavit of bias under § 21, Judicial Code, by inducing the judge voluntarily to withdraw, but also evinced his heat over the judge’s conduct in the case lately tried, and characterized it in severe language personally derogatory to the judge. Held that in the latter aspects, the letter was contemptuous. P. 532.
2. When a contempt is committed in open court, it may be adjudged and punished summarily upon the court’s own knowledge of the facts, without further proof, without issue or trial, and without hearing an explanation of the motives of the offender. Ex parte Terry, 128 U.S. 289. P. 534.
3. But where the contempt was not in open court, though constituting "misbehavior in the presence of the court" within the meaning of Rev.Stats. 725, due process of law requires charges and that the accused be advised of them and be given a reasonable opportunity to defend or explain, with the assistance of counsel, if requested, and the right to call witnesses in proof of exculpation or extenuation. P. 535.
4. Where the alleged contumacy was committed by sending a letter to the judge in chambers, and eleven days thereafter an order reciting the facts and adjudging contempt was entered and an attachment thereupon issued under which the accused was arrested forthwith and brought before the court and, upon admitting authorship of the letter, was pronounced guilty because of it and of extraneous facts referred to by the judge as in aggravation, and was forthwith punished, without being allowed to secure and consult counsel, prepare his defense and call witnesses, or to make a full personal explanation, held that the procedure was unfair and oppressive, and not due process of law. P. 537.
5. Where conditions do not make it impracticable and the delay will not injure public or private rights, a judge, in a case of contempt consisting of a personal attack upon himself may properly ask that the matter be heard by a fellow judge. P. 539.
6. In this case, decided that the judge who imposed the sentence reversed should invite the Senior Circuit Judge of the Circuit to assign another judge to sit in the second hearing. P. 539.
295 F. 292 reversed.
Clay Cooke and J. L. Walker were each sentenced for thirty days’ imprisonment for contempt by the United 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:
Fort Worth, Texas, February 15, 1923.
Hon. James C. Wilson
Judge U.S. District Court
Fort Worth, Texas
Dear Sir: In re No. 985, W. W. Wilkinson, Trustee v. J. L. Walker; in re No. 986, W. W. Wilkinson, Trustee v. Mass. Bonding Company et al.; in re 266, Equity, W. W. Wilkinson, Trustee v. J. L. Walker; in re 69, Equity, Southwestern Telegraph & Telephone Co. v. J. L. Walker; in re No. 1001, in Bankruptcy, Walker Grain Company.
Referring to the above matters pending in the District Court of the United States for the Northern District of Texas at Fort Worth, I beg personally, as a lawyer interested in the cause of justice and fairness in the trial of all litigated matters, and as a friend of the judge of this Court, to suggest that the only order that I will consent to your honor’s entering in any of the above-mentioned matters now pending in your honor’s court is an order certifying your honor’s disqualification on the ground of prejudice and bias to try said matters.
You having, however, proceeded to enter judgment in the petition for review of the action of the referee on the summary orders against the Farmers’ & Mechanics’ National Bank and J. L. Walker and Mrs. M. M. Walker, you, of course, would have to pass upon the motion for a new trial in those matters, and also having tried 984, W. W. Wilkinson, Trustee v. J. L. Walker, you will, of course, have to pass upon the motion for a new trial in said cause.
I do not like to take the steps necessary to enforce the foregoing disqualification, which to my mind, as a lawyer and an honest man, is apparent.
Therefore, in the interest of friendship and in the interest of fairness, I suggest that the only honorable thing for your honor to do in the above-styled matters is to note your honor’s disqualification, or, your honor’s qualification having been questioned, to exchange places and permit some judge in whom the defendant and counsel feel more confidence to try these particular matters.
Prior to the trial of cause No. 984, which, as just concluded, I had believed that your honor was big enough and broad enough to overcome the personal prejudice against the defendant Walker, which I knew to exist, but I find that in this fond hope I was mistaken, also my client desired the privilege of laying the whole facts before your honor in an endeavor to overcome the effect of the slanders that have been filed in your honor’s court against him personally, and which have been whispered in your honor’s ears against him, and in proof of which not one scintilla of evidence exists in any record ever made in your honor’s court.
My hopes in this respect having been rudely shattered, I am now appealing purely to your honor’s dignity as a judge and sense of fairness as a man to do as in this letter requested, and please indicate to me at the earliest moment your honor’s pleasure with respect to the matters herein presented, so that further steps may be avoided.
With very great respect, I beg to remain,
Yours most truly,
CLAY COOKE
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:
Therefore, since the matters of fact set forth herein are within the personal knowledge of the judge of this court, and since it is the view of this court that said letter as a whole is an attack upon the honor and integrity of the court, wherein it charges that the judge of this court is not big enough and broad enough to truly pass upon matters pending therein, and wherein it charges in effect that the judge of this court has allowed himself to be improperly approached and influenced and whispered to by interested parties against a litigant in the court, and since it is the view of this court that such an act by a litigant and his attorney constitutes misbehavior, and a contempt under the law, and that the threats and impertinence and insult in said letter were deliberately and designedly offered, with intent to intimidate and improperly influence the court in matters then pending and soon to be passed upon, and to destroy the independence and impartiality of the court in these very matters, it is ordered that an attachment immediately issue for the said J. L. Walker and Clay Cooke, and that the marshal of this court produce them instanter before this court to show cause, if any they have, why they should not be punished for contempt.
The marshal arrested the defendants and brought them to court. The following statement shows in substance what then occurred:
Judge Wilson: At this time, I will call the contempt matter against Clay Cooke and J. L. Walker, attachment having been issued for these respondents.
I have requested Judge J. M. McCormick, of Dallas, to be present and act as a friend of the court in this proceeding, and have also requested the district attorney, it being in its nature a criminal matter, to act.
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:
There is just this question involved, and, as stated by counsel representing the court, these facts are within the personal knowledge of this court. Did you deliver this letter to the judge of this court?
Mr. Clay Cooke: Is your honor asking me?
Judge Wilson: I am stating the question -- and does that, under the law constitute contempt? If you have any defense, you have not suggested any. This court would be glad to give you ample time to file any pleadings pertinent and secure any evidence that might support or tend to support it, but unless you desire now to state that you have some defense you care to file and present, and indicate what that defense is to this charge, then I shall direct that this proceeding go forward, and you are fully protected, since the higher courts are open to you to correct any error, even to the Supreme Court, that the judge of this court might commit here. Now if you have any defense that is pertinent to this order, state what it is.
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 in the letter as to the bias and prejudice of the judge were true.
The Court: That does not constitute any defense.
Mr. Clay Cook: I’ll state, then, something otherwise --
Judge Wilson: Repeating the insult does not constitute any defense.
Mr. Clay Cooke: I am not trying to repeat the insult, if your honor please. . . . I am now stating my good faith.
Judge Wilson: I mean this, that the court is not permitting it stated -- you may, if you regard that as proper, you may state it in your bill of exceptions in concluding the record.
Mr. Clay Cooke: That affiant had heretofore been on friendly relations with said Judge James C. Wilson --
Judge Wilson: That is a matter that is wholly immaterial here; it don’t make any difference how friendly.
Mr. Clay Cooke: I am stating my good faith in writing the letter. And affiant believed in writing said letter that he would relieve the said judge of the embarrassment of filing the necessary statutory affidavits of disqualification, and if said letter --
Judge Wilson: Now the court is not caring anything about your suggesting the disqualification of the court; that is your right before these important trials, but you did not avail yourself of that privilege. You understood as a lawyer how to proceed in order to suggest the disqualification of the judge.
Mr. Clay Cooke: I am going to state why I did not proceed --
Judge Wilson: That does not constitute any defense to this contempt charge.
Mr. Clay Cooke: Can I put that in about writing the letter? Can I put that in later?
Judge Wilson: You may.
Mr. Clay Cooke: That affiant wrote said letter without any intention on his part of incurring contempt proceedings, and without any thought of contempt, and believed that said letter would not be so construed; that affiant has the highest regard for this court as a judge; that affiant believed in good faith the court had heard things concerning --
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.
The letter itself was not carefully read by myself.
Judge Wilson: I would like to know who said reputable counsel are.
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.
You may add -- I have not heard any defense suggested here yet, but you may add any, however, if you think of any later. Read the order, Mr. District Attorney.
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:
Judge Wilson: The findings of fact, all of which are within the personal knowledge of this court, will be made in the order entered:
Now, gentlemen, it is a matter almost of common knowledge that the court may be lawfully criticized, the same as any other branch of the government, and that it is not unlawful or a contempt of the court for any person, including newspapers, to pass criticisms upon the judiciary, including the federal courts and the judges, regardless of their truth or falsity, when those criticisms are concerning past matters not at the time pending in the courts. This law is based upon sound principle. Every branch of the government needs constructive criticism; when it is such, it is wholesome and helpful; no judge, I think, welcomes it more nor fears it less than the judge of this court. But it is altogether a different proposition, and is unlawful and clearly constitutes a contempt of court, for any litigant or attorney to pass such in the presence of the court not in a respectful, but in a contemptuous and slanderous manner, concerning matters then pending and later to be disposed of by the court.
It is obvious upon a reading of this letter that you deliberately designed to improperly influence the court in these pending matters wherein no disqualification is suggested, and you were very careful to suggest that the court was not disqualified in certain matters, and it is the view of the court that it was your thought and aim to destroy the independence and the very impartiality of the court as to those matters.
And I have some more things I should like to remind you gentlemen of, your conduct and course as litigant and as an attorney of this court, in many respects, has been reprehensible. You have filled your pleadings with scandalous charges against trusted officials of this court. You have charged that the referee in bankruptcy, the attorneys for the petitioning creditors, and the trustee in bankruptcy entered into a corrupt conspiracy to do many unlawful things, all to deprive you, J. L. Walker, of your rights in this court. And not only that, but while the jury were deliberating in cause No. 984, and though in charge of the marshal of this court, you, both of you being a party to it, employed a private detective to follow and shadow them, with a view of reporting to you any corrupt conduct on their part, and you, J. L. Walker, after the jury had rendered its verdict of $56,000 against you, you employed this same detective, whose sworn statement I hold in my hand, to follow the foreman of the jury, Mr. E. G. Thomas, an honorable and respected citizen of Tarrant County, stating that you expected him to meet someone and be paid off -- in other words, to receive bribe money for his verdict in said cause. And not only that, but you gave this same private detective to understand that another one of the jurors, an honorable citizen of Parker County, had been improperly approached and influenced as a juror in this case --
Mr. J. L. Walker: Your honor, pardon me, but I would like to state that J. L. Walker did but what he is in position to prove, and I have it in my pocket --
Mr. Marshal, cause this man to desist.
Mr. J. L. Walker: I beg your pardon; I thought I had the right to speak now.
Judge Wilson: No; you haven’t got a right. Your time to reply is passed.
In view of all this, it is not surprising that you men would deliver this letter to the court with the utterly false statement in it that this court had permitted himself to be improperly influenced and whispered to by interested parties against a litigant in this court. It is a simple and easy matter to analyze the character of any man who is expecting every other man to act dishonestly and corruptly.
Your whole course, as I say, has been contemptible, not only in this matter, and it is not surprising that you delivered this letter to the court, and is surprising that you did not state more in the letter, and, of course, you are in contempt; if you are not, you have your remedy, and you, J. L. Walker, I sentence to the Tarrant County jail for 30 days and the payment of a $500 fine --
Mr. McCormick: I doubt whether your honor has the authority to assess both fine and imprisonment. The statute says you may punish by "fine or imprisonment." I believe I would suggest that you visit such fine as you see fit, or such imprisonment, but not both.
Judge Wilson: I assess a punishment of 30 days against each of these respondents.
Mr. Cooke asked that a bond be fixed pending appeal.
Mr. McCormick: An appeal does not lie in such a case. The evidence, gentlemen, if at all, must be reviewed by writ of error, if reviewed at all.
Mr. Clay Cooke: The statement of the court is he will consider a writ of error or appeal. In this case, we will have 60 days --
Judge Wilson: Take these respondents to jail, Mr. Marshal.
Mr. McCormick: If they are going to take the full 60 days on the matter --
Judge Wilson: No; there is not going to be any 60 days; the higher court is going to pass upon this matter at once. . . .
Mr. Dedmon: Did your honor fix the amount of the bond?
Judge Wilson: One thousand dollars. I am not allowing them bond, not releasing the defendants. It is a writ of error bond.
Mr. Dedmon: You mean you are not going to let them appeal from the order adjudging them to spend 30 days in jail?
Judge Wilson: If they perfect this appeal, I might release them from jail -- show that they are going to appeal it, and do it in a hurry.