In Re Dellinger, 461 F.2d 389 (7th Cir.1972)
*391 Leonard I. Weinglass, Morton Stavis, Newark, N. J., James Reif, Center for Constitutional Rights, New York City, William W. Brackett, Thomas M. Haney, Stuart S. Ball, Chicago, Ill., Anthony G. Amsterdam, Stanford, Cal., William M. Kunstler, Center for Constitutional Rights, New York City, James B. Moran, Chicago, Ill., Arthur Kinoy, Rutgers University School of Law, Newark, N. J., Doris Peterson, Center for Constitutional Rights, Helene E. Schwartz, New York City, Thomas P. Sullivan, Chicago, Ill., for appellant.
Charles R. Nesson, Cambridge, Mass., for Wm. M. Kunstler and Leonard I. Weinglass.
James R. Thompson, U. S. Atty., Gary Starkman, Asst. U. S. Atty., Chicago, Ill., for appellee.
Alan S. Ganz, Henry F. Field, Robert J. Vollen, Owen Fiss, Neil Komesar, Chicago, Ill., for amicus curiae.
CUMMINGS, Circuit Judge.
After this Anti-riot Act case against seven of these defendants was submitted to the jury, acting under Rule 42(a) of the Federal Rules of Criminal Procedure, the trial judge summarily convicted them and their two trial attorneys of contempt of court in violation of 18 U.S. C. § 401(1). All nine now appeal from the findings of contempt and the sentences imposed upon them.
In the certificates of contempt, the court found that the 5-month trial was "marred by continual disruptive outbursts in direct defiance of judicial authority by defendants and defense counsel." It found that "throughout this case * * * the behavior of the defendants *392 was aimed at baiting the judge and inciting and harassing the U. S. Attorneys in an attempt to stop the trial." The entire record of the trial was made part of the contempt proceedings.
The contempt sentences ranged from 2 months and 18 days for defendant Weiner to 4 years and 13 days for Attorney Kunstler. Many of the arguments raised by the parties were also raised in the contempt case against Bobby Seale, who was a co-defendant in the Anti-riot case until a mistrial was declared as to him, resulting in his severance. In the interest of brevity, we will incorporate the rulings in our opinion in United States v. Seale, 461 F.2d 345, when dispositive of arguments herein.
Electronic Surveillance as to Seale
[1] Appellants argue that their contempt judgments should be reversed because of the Government's allegedly illegal electronic surveillance as to Seale. As co-defendants and counsel, they have no standing to complain that their Fourth Amendment rights were violated where, as here, their conversations or conversations on their premises were not involved. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176.
We have seen in United States v. Seale, supra, that the only conversation possibly bearing on his contempt is contained in the first paragraph of the earliest of the three logs. There was nothing in any of the logs which could conceivably be deemed an intrusion into councils of the defendants other than Seale. There not only was no "direct intrusion * * * into attorney-client discussions" (Hoffa v. United States, 387 U.S. 231, 233, 87 S.Ct. 1583, 1584, 18 L.Ed.2d 738), but also there was no indirect intrusion, however remote, that could possibly give appellants standing to complain of these logs under the Fifth or Sixth Amendments. Cf. Granello v. United States, 386 U.S. 1019, 87 S.Ct. 1367, 18 L.Ed.2d 458; United States v. Fannon, 435 F.2d 364, 368 (7th Cir. 1970).
If United States v. United States District Court for Eastern District of Michigan, 444 F.2d 651 (6th Cir.), certiorari granted, 403 U.S. 930, 91 S.Ct. 2255, 29 L.Ed.2d 708 (1971), is reversed by the Supreme Court, then under the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. § 2511(3)), the surveillances were lawful and need not be disclosed for this additional reason.
We hold that the Seale logs require neither reversal nor dismissal of the contempt charges against appellants.
Trial Before Another Judge
[2] As a result of the Supreme Court's opinion in Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532, the Government has conceded that the contempt convictions of all of these appellants, except the two trial counsel, should be reversed and remanded for consideration by another trial judge. The convictions of counselors Kunstler and Weinglass are asserted to stand on a different footing. We disagree.
The Government argues that the posttrial summary contempt punishment of the lawyers in this case was proper under Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717. That case involved a trial judge's summary contempt conviction, after trial, of several attorneys who had represented eleven Communist Party leaders convicted of Smith Act violations in the celebrated Dennis trial. [n 1] It is clear that the lawyers' contemptuous conduct in that case included an attack upon the trial judge personally. 343 U.S. at 4- 5, 72 S.Ct. 451 and 343 U.S. at 33-35, 72 S.Ct. 451. (Frankfurter, J., dissenting). [n 2] Nevertheless, *393 the Supreme Court majority upheld the post-trial summary procedure, deciding that "summary" as used in Fed.R.Crim.Pro. 42(a) was not synonymous with "instantly" but rather referred to the informality of the procedure. 343 U.S. at 9, 72 S.Ct. 451. If the trial judge could have cited the lawyers instantly, he was entitled to do so at the end of the trial since "no possible prejudice to them can result from delaying it until the end of the trial if the circumstances permit such delay." 343 U.S. at 10, 72 S.Ct. at 455. Responding to the argument that post-trial summary procedure was inappropriate where the conduct in question included a personal attack on the judge, Mr. Justice Jackson, speaking for the Court, said Rule 42(a) contained "no such limitation" and found any distinction between personally offensive contempts and impersonal contumacies illusory. Predicating the applicability of Rule 42(a) upon such a distinction, he stated, "would nullify, in practice, the power it purports to grant." 343 U.S. at 12, 72 S.Ct. at 456.
n 1. See Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137.
n 2. Dissenting Justices Black and Frankfurter additionally characterized the trial judge's behavior in terms suggesting the embroilment found present in Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11. 343 U.S. at 17, 34, 72 S. Ct. 451; see United States v. Meyer, 149 U.S.App.D.C. -, 462 F.2d 827, 836, n. 16 (1972).
Were Sacher the Supreme Court's latest pronouncement on the subject, we would affirm the trial judge's use of summary procedure in the instant case since, as the Government argues, the factual postures of the two cases are closely akin. However, as Judge McGowan has convincingly elaborated in United States v. Meyer, 149 U.S.App.D.C.-, 462 F.2d 827 (1972), cases subsequent to Sacher have considerably undermined its vitality. [n 3]
n 3. See Comment, Invoking Summary Criminal Contempt Procedures-Use or Abuse? United States v. Dellinger-The "Chicago Seven" Contempts, 69 Mich.L. Rev. 1549, 1568-1569 (1971). Sacher has also met with strong criticism in commentary. See, e. g., Id. at 1565-1568; Goldfarb, The Contempt Power, 228-230 (1971); Note, Summary Punishment for Contempt: A Suggestion That Due Process Requires Notice and Hearing Before an Independent Tribunal, 39 S.Cal. L.Rev. 463 (1966); Comment, Federal Procedure: Effect of Delay in Summary Punishment for Criminal Contempt Under Rule 42(a), Federal Rules of Criminal Procedure: Sacher et al. v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L. Ed. 717 (1952), 37 Cornell L.Rev. 795 (1952).
In Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11, the Supreme Court forbade the use of summary contempt power post-trial by a trial judge who had become "personally embroiled" with the lawyer whom he cited. 348 U.S. at 17, 75 S.Ct. 11. The Court, speaking through Mr. Justice Frankfurter, held under its "supervisory authority over the administration of criminal justice in the federal courts" (348 U.S. at 13, 75 S.Ct. at 13) that a trial judge so embroiled could not proceed summarily after the completion of the trial but must recuse himself to allow another judge to adjudicate the contempt. [n 4] The Court said: "[T]he pith of this rather extraordinary [summary contempt] power to punish without the formalities required by the Bill of Rights for the prosecution of federal crimes generally, is that the necessities of the administration of justice require such summary dealing with obstructions to it." 348 U.S. at 14, 75 S.Ct. at 13. The thrust of the Offutt opinion is that where the trial judge waits until the conclusion of trial to cite for contempt, the necessity to preserve order in the courtroom cannot sanction *394 summary procedure. On the other hand, the "fair administration of justice" (348 U.S. at 17, 75 S.Ct. 11) will not tolerate a judge who has become personally embroiled with trial attorneys to sit in judgment on their conduct, at least after the trial is over, merely because that course is more convenient, more economical and less time consuming than having another judge conduct a hearing. See United States v. Meyer, 149 U.S.App. D.C. -, 462 F.2d 827 (1972).
n 4. In Offutt the Court relied heavily on the pre-Sacher case of Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767.
Cooke was concerned with an indirect contempt by an attorney consisting of a prima facie contumacious letter requesting the judge to recuse himself in further cases involving the attorney's client. The Supreme Court unanimously held summary contempt procedure unwarranted in the case of this indirect contempt. (The decision antedated the advent of the Federal Rules of Criminal Procedure.) However, the Court went further and directed that another judge be assigned to hear the contempt adjudication on remand since the attorney's conduct consisted of a personal attack on the trial judge. Significantly the Sacher majority did not discuss Cooke, ostensibly because it was pre-Federal Rules of Criminal Procedure. See 343 U.S. at 8, n. 14, 72 S.Ct. 451.
In Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921, a witness, who was also a lawyer, in a state criminal trial was held in contempt for his conduct on the witness stand. The trial judge presided over the post- trial contempt proceeding. The witness-contemnor argued this was improper because his remarks were a personal attack on the judge which "necessarily, and without more" disqualified the trial judge from conducting the contempt hearing. 376 U.S. at 583, 84 S.Ct. 841. The Supreme Court rejected the argument and upheld the summary procedure in that case, concluding from its own examination of the record that the witness' conduct "was disruptive, recalcitrant and disagreeable commentary, but hardly an insulting attack upon the integrity of the judge carrying such potential for bias as to require disqualification." 376 U.S. at 584, 84 S.Ct. at 847. Moreover, contrary to the situation in Offutt, the Court found that the trial judge had not become personally involved with the petitioner. 376 U.S. at 585, 84 S.Ct. 841.
In Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532, the Supreme Court required recusal as a matter of due process where the trial judge was the victim of an insulting personal attack by a pro se defendant and waited until the conclusion of the trial to cite for contempt. In that case the Court did not find the judge was an "activist seeking combat" as in Offutt, but on the other hand, could not say from its examination of the record that Mayberry's remarks were merely "disruptive, recalcitrant and disagreeable commentary" as were the remarks in Ungar. Rather the tenor of the bitter, vilifying remarks was such that an inevitable potential for bias was generated. 400 U.S. at 465-466, 91 S.Ct. 499. In the Court's words:
"[A] judge, vilified as was this Pennsylvania judge, necessarily becomes embroiled in a running, bitter controversy. No one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication." 400 U.S. at 465, 91 S.Ct. at 505.
[3] From a distillation of the foregoing authorities, two significant propositions emerge. First, a distinction can and must be made between contumacious conduct generally and contumacious conduct which is "apt to strike 'at the most vulnerable and human qualities of a judge's temperament."' Mayberry v. Pennsylvania, supra at 466, 91 S.Ct. at 505. If, as Mr. Justice Jackson had intimated in Sacher, this distinction was illusory and unworkable, the Court would not have carefully appraised the record in Ungar to conclude "we cannot say there was bias, or such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused." 376 U.S. at 588, 84 S.Ct. at 849. The Court in Mayberry would not have reached an opposite conclusion on examination of the record. And the Court would not in Offutt have stated that it is "important that district judges guard against [the] easy confusion" of "identify[ing] offense to self with obstruction to law." 348 U.S. at 14, 75 S.Ct. at 13. [n 5]
n 5. Some commentators have suggested that Mr. Justice Jackson was correct in concluding that it is realistically impossible to distinguish between personally insulting contempts and those which are not personal affronts, but in consequence argue for disqualification in every case of delayed citation. See The Supreme Court, 1970 Term, 85 Harv.L.Rev. 1, 298-301 (1971); Note, Summary Punishment for Contempt: A Suggestion That Due Process Requires Notice and Hearing Before an Independent Tribunal,
39 S.Cal.L.Rev. 463, 466 (1966). One state intermediate court has so held. People v. Kurz, 35 Mich.App. 643, 192 N.W.2d 594, 602-603 (1971). However, the Supreme Court has not overruled Sacher but rather has consistently refused to "imprison the discretion of judges within rigid mechanical rules." Offutt v. United States, 348 U.S. 11, 15, 75 S.Ct. 11, 14, 99 L.Ed. 11, or to make broad generalizations. Mayberry v. Pennsylvania, 400 U.S. 455, 463, 91 S.Ct. 499, 27 L.Ed.2d 532. It is clearly committed to reviewing the character of the defendant's conduct to determine the necessity for disqualification. Ungar v. Sarafite, 376 U.S. 575, 583-588, 84 S.Ct. 841, 11 L.Ed.2d 921. "It is, of course, not every attack on a judge that disqualifies him from sitting." Mayberry supra, 400 U.S. at 465, 91 S.Ct. at 505.
*395 [4] Second, if the conduct of the defendant includes a personal attack on the trial judge carrying such potential for bias that he is not "likely to maintain that calm detachment necessary for fair adjudication" Mayberry, supra, 400 U.S. at 465, 91 S.Ct. at 505, the trial judge must disqualify himself if he waits to act until the conclusion of the trial. When the trial proceedings have terminated, the need to proceed summarily is not present. In this situation, the possible prejudice to the accused as well as the diminution of the quality of justice in the public eye [n 6] overrides any economy of effort that would be achieved by summary procedure. Insofar as the Court in Sacher saw no need to differentiate between a trial judge's ability to act instantly and his ability to cite for contempt after the trial is ended, even where personal attack is involved, it has since altered its focus. See Mayberry v. Pennsylvania, supra; Harris v. United States, 382 U.S. 162, 164-167, 86 S.Ct. 352, 15 L.Ed.2d 240; Offutt v. United States, supra.
n 6. "Justice must satisfy the appearance of justice." Offutt, supra, 348 U.S. at 14, 75 S.Ct. at 13; Mayberry, supra, 400 U.S. at 465, 91 S.Ct. 499.
The argument is made that Sacher has special vitality where the contemnor is a lawyer. Mayberry was not a lawyer. Certainly the fact that the defendant is an attorney can have no bearing on the need to distinguish between an obstruction to justice and a personal affront which makes bias probable. But the Court in Sacher adverted to the desirability of avoiding instant action against a contumacious attorney because that course "is not unlikely to prejudice his client." 343 U.S. at 10, 72 S.Ct. at 455. In Mayberry the Court recognized that "instant treatment of contempt where lawyers are involved may greatly prejudice their clients," but cautioned that "it may be the only wise course where others are involved," 400 U.S. at 463, 91 S.Ct. at 504, as others were in the case at bar.
In any event, the wisdom of deferring action against a lawyer has nothing to do with the requisites of due process when the trial judge "does not act the instant the contempt is committed, but waits until the end of the trial * * *." Mayberry, supra at 463-464, 91 S.Ct. at 504. That is, while the possible prejudice to the lawyer's clients may counterbalance the need to preserve order in the court through immediate action, this consideration simply has no bearing on whether the trial judge may himself proceed summarily or must call in another judge to take his place when he has already decided to wait. See United States v. Meyer, 149 U.S.App.D.C. -, 462 F.2d 827, 840, n. 21 (1972).
Consequently, all that remains is for us to assess in the light of Mayberry the character of the lawyer's conduct as it appears from the record.
[5] Our study of this record convinces us that under Mayberry the trial judge was disqualified from passing upon the contempt specifications against these lawyers because their attack upon him did carry "such potential for bias as to require disqualification." As in Mayberry, the insults leveled by Messrs. Kunstler and Weinglass against the trial judge were apt to strike "at the most vulnerable and human qualities of a *396 judge's temperament," thus requiring "a public trial before a judge other than the one reviled by the contemnor[s]." 400 U.S. at 466, 91 S.Ct. at 505; see also Cooke v. United States, 297 U.S. 517, 539, 45 S.Ct. 390, 69 L.Ed. 767; Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11. [n 7]
n 7. Therefore, it is unnecessary for us to decide whether the lawyers' conduct had its reflex in the judge so as to require disqualification under the "embroilment" standard.
Here the trial judge was the recipient of numerous and unprecedented attacks and insults by both trial counsel. These attacks would have affected any judge personally. For example, no judge could remain impartial toward Mr. Kunstler after the judge's honesty and integrity were assailed as follows.
"Mr. Kunstler: I want to comment on this, your Honor, because I think what you have just said is about the most outrageous statement I have ever heard from a bench, and I am going to say my piece right now, and you can hold me in contempt right now if you wish to.
"You have violated every principle of fair play when you excluded Ramsey Clark from that witness stand. The New York Times, among others, has called it the ultimate outrage in American justice.
* * *
"I have sat here for four and a half months and watched the objections denied and sustained by your Honor, and I know that this is not a fair trial. I know it in my heart. If I have to lose my license to practice law and if I have to go to jail, I can't think of a better cause to go to jail for and to lose my license for-
* * *
"I am going to turn back to my seat with the realization that every thing I have learned throughout my life has come to naught, that there is no meaning in this court, and there is no law in this court-
* * *
"-and these men are going to jail by virtue of a legal lynching-
* * *
"-and that your Honor is wholly responsible for that, and if this is what your career is going to end on, if this is what your pride is going to be built on, I can only say to your Honor, 'Good luck to you."'
The record abounds with other instances.
Although Mr. Weinglass engaged in lesser attacks upon the trial judge, the need for recusal is also present as to him. For example, Weinglass remarked that "The door in this courtroom seems to swing in one direction [against the defendants]." He also referred to the trial judge as "inhumane," called the judge's action "disgraceful," and possibly accused the judge of "dishonesty." (It is unclear whether he was referring to the judge or to the prosecutors.) Moreover, the trial judge characterized Weinglass' remarks as "insulting," "sarcastic," and on one occasion accused him of making an "invidious comparison between the treatment the court afforded the witnesses called by the defendant as opposed to the treatment afforded witnesses called by the Government." Additionally, it would be artificial to view the conduct of either defense counsel in isolation from that of the other since defense counsel mutually supported each other's activities or, for that matter, in isolation from the concededly disqualifying disrespect of the other defendants since the conduct of all the defendants here was inextricably interwoven. The trial judge himself felt that all the defendants worked in concert at "baiting the judge" and implicated the two lawyers in this nefarious purpose as is evidenced in the common preface of the contempt certificates.
Finally, there is really no necessity to attempt to calculate precisely the potential for bias generated by the conduct of *397 these attorneys. The record reveals that their conduct tended to be productive of actual prejudice toward them on the part of the trial judge. In such a situation it matters not whether the judge's reaction was understandable or not; Mayberry must govern.
[6] Accordingly, while regretting the necessity therefor, we conclude that all 9 contemnors must be tried before another judge. [n 8]
n 8. As in United States v. Seale, supra, the new judge would be chosen by the Executive Committee of the court below, pursuant to its local rules, but it would have to exclude judges who have officially expressed an opinion on this case.
Jury Trial
[7] [8] [9] [10] [11] [12] For the reasons given in our opinion in United States v. Seale, supra, each appellant whose sentences aggregated more than 6 months was entitled to a jury trial. Since defendant Lee Weiner received only a 2 months and 18 days sentence, he is not so entitled. Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522, and Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629. No indictment was required of any individual, even those whose sentences aggregated more than one year. United States v. Bukowski, 435 F.2d 1094 (7th Cir. 1970), certiorari denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809. On remand, the guidelines established in United States v. Seale, supra, will govern. As noted in that companion case, the inferential findings and descriptions contained in the preface and conclusion of the contempt certificate must be deleted in order to avoid the jury's according them undue weight. In addition, in this case the trial judge's observations prefatory to many of the individual specifications present the same potential for prejudice, and therefore they also should not be placed before the jury. However, the judge handling this case on remand shall have authority to precede each specification with an introduction necessary to set out the precise offense alleged in the following excerpt from the transcript and to place the conduct depicted therein in its proper context. If the judge to whom this case is referred for trial decides that the outside limit of a cumulative sentence for any appellant (except Mr. Weiner, who is not entitled to a jury trial by virtue of his short sentence) should be 6 months maximum, a jury trial will not be necessary for him.
Legally Insufficient Specifications
[13] A. Attorneys. As noted in the companion opinion, United States v. Seale, supra, in order for conduct to be punishable under 18 U.S.C. § 401(1), it must "clearly be shown" that the conduct "actually obstructed the district judge in 'the performance of judicial duty."' In re McConnell, 370 U.S. 230, 234, 82 S.Ct. 1288, 1291, 8 L.Ed.2d 434; Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 63 L.Ed. 656. Our opinion in Seale requires, in addition to proof of the requisite wrongful intent, proof that the misbehavior was an "actual and material obstruction." See Seale, supra, 461 F.2d at 369. Where, as here, the conduct complained of is that of an attorney engaged in the representation of a litigant, the search for these essential elements of the crime of contempt must be made with full appreciation of the contentious role of trial counsel and his duty of zealous representation of his client's interests.
[14] In dealing with an attorney's contempt, the Supreme Court noted in McConnell, supra, 370 U.S. at 236, 82 S.Ct. at 1292, "[W]hile we appreciate the necessity for a judge to have the power to protect himself from actual obstruction in the courtroom * * * it is also essential to a fair administration of justice that lawyers be able to make honest good-faith efforts to present their clients' cases. An independent judiciary and a vigorous, independent bar are both indispensable parts of our system of justice. To preserve the kind of trials that our system envisages, Congress has limited *398 the summary contempt power vested in courts to the least possible power adequate to prevent actual obstruction of justice * * *." The appellants interpret this to mean that where an attorney's conduct is involved, good faith is an absolute defense to citation for contempt. As noted in the Seale opinion, we do not believe McConnell supports such a position.
The McConnell opinion cannot be read as a grant of impunity for all conduct undertaken in good faith. On the contrary, the pith of McConnell, when reduced to its essential, is that without an actual obstruction, there can be no contempt. That view is made explicit at page 236, 82 S.Ct. at page 1292 where the Court states, "[T]he arguments of a lawyer in presenting his client's case strenuously and persistently cannot amount to a contempt of court so long as the lawyer does not in some way create an obstruction which blocks the judge in the performance of his judicial duty. The petitioner created no such obstacle here."
[15] While McConnell cannot be read as an immunization for all conduct undertaken by an attorney in good faith representation of his client, it does require that attorneys be given great latitude in the area of vigorous advocacy. Appellate courts must ensure that trial judges (or the jury on remand) are not left free to manipulate the balance between vigorous advocacy and obstructions so as to chill effective advocacy when deciding lawyer contempts. Admittedly, the line defies strict delineation (Goldfarb, The Contempt Power, 172 (1971)), but by our resolving doubts in favor of advocacy, an independent and unintimidated bar can be maintained while actual obstruction is dealt with appropriately.
In delineating the limits of zealous advocacy, we must repeat the instruction of Mr. Justice Jackson in Sacher v. United States, 343 U.S. 1, 9, 72 S.Ct. 451, 455, 96 L.Ed. 717, where he noted:
"Of course, it is the right of counsel for every litigant to press his claim, even if it appears farfetched and untenable, to obtain the court's considered ruling. Full enjoyment of that right, with due allowance for the heat of controversy, will be protected by appellate courts when infringed by trial courts. But if the ruling is adverse, it is not counsel's right to resist it or to insult the judge-his right is only respectfully to preserve his point for appeal."
See also United States v. Schiffer, 351 F.2d 91, 94 (6th Cir. 1965) certiorari denied, 384 U.S. 1003, 86 S.Ct. 1914, 16 L.Ed.2d 1017; MacInnis v. United States, 191 F.2d 157, 160 (9th Cir. 1951), certiorari denied, 342 U.S. 953, 72 S.Ct. 628, 96 L.Ed. 708; Halliman v. United States, 182 F.2d 880, 887 (9th Cir. 1950), certiorari denied, 341 U.S. 952, 71 S.Ct. 1010, 95 L.Ed. 1375.
[16] Many of the contempt specifications against the attorneys arise out of their persistence in continuing argument on motions and rulings after express orders by the trial judge to cease. With respect to these specifications, appellants contend that such persistence was warranted by the trial judge's refusal to hear reasonable argument from the defense prior to ruling. In support of this contention, reliance is placed upon Cooper v. Superior Court, 55 Cal.2d 291, 10 Cal.Rptr. 842, 359 P.2d 274 (1961). In that case the Supreme Court of California accepted the appellant's argument that "[t]he power to silence an attorney does not begin until reasonable opportunity for appropriate objection or other indicated advocacy has been afforded." 10 Cal.Rptr. at 846, 359 P.2d at 278. Although this principle is not without appeal in extreme situations such as Cooper, where the judge sua sponte recalled a deadlocked jury and gave them his comments on the weight of the evidence without informing counsel of his actions or allowing them an opportunity to register objections, it cannot be accepted as a general principle. If a trial judge prejudicially denies counsel an adequate opportunity to argue a point, appellate courts will reverse, and that alone will *399 deter most judges from arbitrarily cutting off argument. United States v. Offutt, 145 F.Supp. 111, 114 (D.D.C. 1956), modified, 101 U.S.App.D.C. 97, 247 F.2d 88, certiorari denied, 355 U.S. 856, 78 S.Ct. 85, 2 L.Ed.2d 64 (1957); see United States v. Sacher, 182 F.2d 416, 430 and 454 (concurring opinion of Frank, J.), affirmed, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717; Hallinan v. United States, 182 F.2d 880, 885 (9th Cir. 1950), certiorari denied, 341 U.S. 952, 71 S.Ct. 1010, 95 L.Ed. 1375; United States v. Bollenbach, 125 F.2d 458, 460 (2d Cir. 1942); Sprinkle v. Davis, 111 F.2d 925, 930 (4th Cir. 1940). And where the judge is arbitrary or affords counsel inadequate opportunity to argue his position, counsel must be given substantial leeway in pressing his contention, for it is through such colloquy that the judge may recognize his mistake and prevent error from infecting the record. It is, after all, the full intellectual exchange of ideas and positions that best facilitates the resolution of disputes. However, this is not to say that attorneys may press their positions beyond the court's insistent direction to desist. On the contrary, the necessity for orderly administration of justice compels the view that the judge must have the power to set limits on argument. We simply encourage judges to exercise tolerance in determining those limits and to distinguish carefully between hesitating, begrudging obedience and open defiance.
[17] A reading of the specifications against the attorneys in this case reveals a pattern in the specifications for refusal to obey a court directive to cease argument. That pattern necessitates a brief comment. The record discloses that the trial judge, when ordering counsel to terminate their argument or sit down, frequently added a rejoinder or coupled the order with a statement which called for a response by the attorneys. In such situations, it is our view that an invited, additional response cannot subsequently be viewed as a contemptuous violation of the order.
[18] Appellants, relying on In re Abse, 251 A.2d 655 (D.C.Mun.Ct.App. 1969), also argue that an attorney may with impunity defy a court order to refrain from reply where the judge has charged him with professional misconduct. The court in Abse held that an attorney charged by the trial judge with unprofessional conduct may insist upon being heard in his own defense so long as his response is respectful. We agree that there is in this limited situation cogent reason for permitting such response since appellate review is not available to vindicate an attorney who is erroneously charged with unprofessional conduct. To require him to remain silent in the face of such a charge is, as the court said in Abse, to render him "helpless." Of course, it bears repeating that Abse affords only an opportunity to answer the charge respectfully. Even if the judge's accusation be unfounded or ill- tempered, it does not protect counter-misbehavior, for as the court noted in United States v. Offutt, 145 F.Supp. 111, 114 (D.D.C.1956), "[T]wo wrongs do not make a right, and misconduct cannot obliterate other misconduct."
[19] Yet another frequent charge against the attorneys is that they failed to aid the court in maintaining order. While this charge was often coupled with the additional assertion that they actively encouraged their clients in their disruptions, for purposes of remand it is necessary to distinguish between the two situations. An attorney has no affirmative obligation to restrain his client under pain of the contempt sanction, although we do not express an opinion as to the breach of professional ethics that may be involved in this situation. Indeed, compelling an attorney to control the conduct of his client under threat of the contempt sanction might well destroy the confidence in the attorney-client relationship which is necessary to a proper and adequate defense. However, where an attorney encourages disruptive behavior by a client or fans the flames *400 of existing frictions, he cannot find immunity from punishment for such conduct. As the Court said in United States v. Landes, 97 F.2d 378, 381 (2d Cir. 1938),
"Counsel should not obtrude upon the court the passion, the prejudice, or the unreason of his client. These must be left outside the courtroom door. The controversy that crosses the threshold should be a controversy sifted by the intelligence and shaped by the conscience of the lawyer, not the turmoil of personal dispute."
[20] [21] Finally, as was noted in Seale, mere disrepect or insult cannot be punished where it does not involve an actual and material obstruction. This is particularly true with respect to attorneys where the "heat of courtroom debate" may prompt statements which are ill-considered and might later be regretted. In re Hallinan, 71 Cal.2d 1179, 81 Cal.Rptr. 1, 459 P.2d 255 (1969). Substantial freedom of expression should be tolerated in this area since "[J]udges are supposed to be men of fortitude, able to thrive in a hardy climate." Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546. However, as also noted in Seale, although it is elusive, there is a line beyond which disrespect becomes obstruction. When the remarks create an imminent prejudice to a fair and dispassionate proceeding, that line has been crossed.
The presence or absence of contempt may turn upon no more than how the remark was made. [n 9] For example, where the insult or disrespectful remark is shouted, the insult itself may not amount to an obstruction of the judicial process, but by the manner in which it was made it may. This was made clear in In re Little, 404 U.S. 553, 92 S.Ct. 659, 31 L.Ed.2d 708 (1972), where the Supreme Court reversed a contempt conviction for disrespectful conduct but in doing so noted, "[T]here is no indication, and the State does not argue, that petitioner's statements were uttered in a boisterous tone or in any wise actually disrupted the court proceeding." Moreover, if an entirely unnecessary and not insignificant delay is occasioned by insulting remarks which serve, for instance, only to vent the speaker's spleen, a material obstruction would exist.
n 9. See Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183, 264 (1971).
[22] With respect to the question of intent, we said in Seale that the minimum standard is one of a voluntary action known by the actor to be wrongful or one that he reasonably should have been aware was wrongful. Attorneys have a right to be persistent, vociferous, contentious, and imposing, even to the point of appearing obnoxious, when acting in their client's behalf. An attorney may with impunity take full advantage of the range of conduct that our adversary system allows. Given this extreme liberality necessary to a vital bar and thus the effective discovery of truth through the adversary process, an attorney possesses the requisite intent only if he knows or reasonably should be aware in view of all the circumstances, especially the heat of controversy, that he is exceeding the outermost limits of his proper role and hindering rather than facilitating the search for truth.
[23] Thus, as we did with the contempt specifications in Seale, we have carefully examined those against the attorney appellants and have determined that some do not, as a matter of law, charge conduct which rises to the level of an "obstruct[ion] [of] the administration of justice." 18 U.S.C.A. § 401 (1). Again, it bears repeating that those specifications which are remanded for trial are not thereby found to be obstructions, nor do they necessarily show misbehavior or the requisite intent. The jury will determine the issues of misbehavior, obstruction, and intent for all specifications not found insufficient as a matter of law. Those specifications deemed legally insufficient are (by appellant and number): Weinglass, Nos. 1, 2, 3, 5, 6, 7, and 8; Kunstler, Nos. 1, 2, 5, 11, 12, 13, 14, 15, 16, the first part of *401 17, 18 and 19. However, the jury may consider the conduct described therein in connection with the factual questions to be resolved with respect to the valid specifications. See United States v. Seale, supra.
[24] As we made clear in United States v. Seale, impropriety on the part of the trial judge cannot justify or excuse contemptuous conduct. However, judicial (or prosecutorial) provocation is to be considered by the new hearing judge in extenuation of the offense and in mitigation of any penalty to be imposed.
[25] B. Non-lawyers. With respect to the non-lawyer defendants who were cited for contumacious conduct, it is manifest that the standards regarding the essential elements of the offense set forth in United States v. Seale, shall apply to the trial upon remand. It is equally clear that litigants not even making a pretense of self-representation are not to be afforded the same latitude of speech and action as an attorney. Judge Breitel stated in Katz v. Murtagh, 28 N.Y.2d 234, 240, 321 N.Y.S.2d 104, 109, 269 N.E. 2d 816, 820 (1971), "[T]he court is not a public hall for the expression of views, nor is it a political arena or a street. It is a place for trial of defined issues in accordance with law and rules of evidence, with standards of demeanor for court, jurors, parties, witnesses and counsel." This Court pointed out in United States ex rel. Robson v. Malone, 412 F.2d 848, 850 (7th Cir. 1969), that in courtrooms "there must be silence, except as the orderly conduct of business calls for speech." Thus where there is legally adequate representation and no pressing need for the litigant to interject himself into the proceedings, this Court is hesitant to find as a matter of law that any such interjection did not rise to the level of an obstruction. We believe that question is better left for the jury in this situation.
[26] Brief mention, however, must be made concerning those specifications which deal with the appellants' refusals to stand when court was convened and recessed. It is our opinion that such symbolic acts, when not coupled with further disturbance or disruption, sometimes might not rise to the level of an actual and material obstruction of the judicial process. In United States ex rel. Robson v. Malone, supra, we expressed "some doubt about the power of the court to require spectators to perform purely ceremonial or symbolic acts." While the per curiam opinion in Malone concluded that a court "may require such rising" and while we reaffirm that conclusion as to rising at the beginning of a session and end of a recess, we believe on remand some of the failures to rise here could be found nonobstructive. Such symbolic acts as cited here, when tested by the actual and material standard, do not necessarily alone amount to obstructions punishable as criminal contempt. [n 10] Of course, where such an act is accompanied by some disturbance, disorder or interruption, an obstruction may exist.
n 10. See Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 181, 204 (1971).
It is decided, therefore, that all specifications against non-lawyer appellants be remanded for trial by jury.
After careful consideration of the arguments of appellants and amici curiae, in our judgment, except as to those legally insufficient, none of the charges merits dismissal "in the interests of justice." [n 11] In the words of Mr. Justice Cardozo, "Justice, though due to the accused, is due to the accuser also." [n 12] Therefore, the contempt convictions of appellants are reversed and remanded for further proceedings not inconsistent herewith.
n 11. Of the amici curiae, the Americans for Effective Law Enforcement, Inc. opposed whereas the remaining amici favored dismissal.
n 12. Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674.
*402 APPENDIX
Number of Contempt Specifications and Sentences Thereunder
DAVID T. DELLINGER
32 Specifications; 2 year, 2 month, 9 day sentence.
Specification 1. (Sentence: 6 months)
2. (1 month)
3. (7 days)
4. (3 days)
5. (7 days)
6. (1 day)
7. (7 days)
8. (1 month)
9. (1 day)
10. (1 day)
11. (7 days)
12. (1 day)
13. (2 days)
14. (4 days)
15. (4 days)
16. (3 days)
17. (6 days)
18. (2 days)
19. (6 days)
20. (4 days)
21. (3 days)
22. (3 days)
23. (5 days)
24. (6 months)
25. (7 days)
26. (4 months)
27. (2 days)
28. (2 days)
29. (7 days)
30. (5 months)
31. (7 days)
32. (7 days)
RENNARD C. DAVIS
23 Specifications; 2 year, 1 month, 19 day sentence.
Specification 1. (Sentence: 2 days)
2. (1 day)
3. (1 day)
4. (1 day)
5. (1 day)
6. (2 months)
7. (1 day)
8. (1 day)
9. (14 days)
10. (7 days)
11. (7 days)
12. (1 day)
13. (7 days)
14. (2 months)
15. (2 months)
16. (6 months)
17. (3 months)
18. (14 days)
19. (7 days)
20. (2 months)
21. (5 months)
22. (14 days)
23. (1 month)
THOMAS E. HAYDEN
11 Specifications; 1 year, 2 month, 14 day sentence.
Specification 1. (Sentence: 2 days)
2. (1 day)
3. (1 month)
4. (1 day)
5. (1 day)
6. (1 day)
7. (3 months)
8. (4 months)
9. (1 day)
10. (7 days)
11. (6 months)
ABBOTT H. HOFFMAN
23 Specifications; 8 month sentence.
Specification 1. (Sentence: 1 day)
2. (7 days)
3. (1 day)
4. (7 days)
5. (1 day)
6. (1 day)
7. (1 day)
8. (2 months)
9. (1 day)
10. (7 days)
11. (1 month)
12. (14 days)
13. (14 days)
14. (7 days)
15. (1 day)
16. (withdrawn)
17. (42 days)
18. (14 days)
19. (7 days)
20. (2 days)
21. (4 days)
22. (5 days)
23. (6 days)
24. (7 days)
JERRY C. RUBIN
15 Specifications; 2 year, 1 month, 23 day sentence.
Specification 1. (Sentence: 1 day)
2. (1 day)
3. (1 day)
4. (1 day)
5. (4 months)
6. (1 day)
7. (1 day)
8. (1 month)
9. (6 months)
10. (2 months)
11. (6 months)
12. (6 months)
13. (7 days)
14. (7 days)
15. (3 days)
LEE WEINER
7 Specifications; 2 month, 18 day sentence.
Specification 1. (Sentence: 1 day)
2. (1 day)
3. (1 day)
4. (1 day)
5. (1 month)
6. (14 days)
7. (1 month)
JOHN R. FROINES
10 Specifications; 6 month, 15 day sentence.
Specification 1. (Sentence: 1 month)
2. (1 day)
3. (1 day)
4. (1 day)
5. (1 month)
6. (1 month)
7. (14 days)
8. (14 days)
9. (2 months)
10. (14 days)
WILLIAM M. KUNSTLER
24 Specifications; 4 year, 13 day sentence.
Specification 1. (Sentence: 1 month)
2. (14 days)
3. (3 months)
4. (14 days)
5. (14 days)
6. (3 months)
7. (3 months)
8. (6 months)
9. (21 days)
10. (14 days)
11. (7 days)
12. (14 days)
13. (14 days)
14. (1 month)
15. (21 days)
16. (2 months)
17. (4 months)
18. (1 month)
19. (1 month)
20. (6 months)
21. (6 months)
22. (4 months)
23. (1 month)
24. (2 months)
LEONARD I. WEINGLASS
14 Specifications; 1 year, 8 month, 5 day sentence.
Specification 1. (Sentence: 2 days)
2. (4 months)
3. (14 days)
4. (14 days)
5. (1 month)
6. (1 month)
7. (14 days)
8. (1 month)
9. (1 month)
10. (3 months)
11. (1 month)
12. (5 months)
13. (1 month)
14. (21 days)
*404 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN
DIVISION
United States of America ex rel. Judge Julius J. Hoffman
vs.
David T. Dellinger [et al.]
No. 69 CR 180
CERTIFICATE OF CONTEMPT [n *]
n * This Certificate preceded the individual specifications of contempt with regard to each defendant and the two trial attorneys. It is hereinafter omitted to avoid repetition.
In conformity with Rule 42(a), Federal Rules of Criminal Procedure, 18 U. S.C., I hereby certify that the series of criminal contempts set forth below were committed in the actual presence of the court and were seen or heard by the court during the trial of the case of United States of America v. David T. Dellinger, et al., 69 CR 180, which commenced on September 24, 1969.
This was a case marred by continual disruptive outbursts in direct defiance of judicial authority by the defendants and defense counsel. I will specify here the instances of conduct of record which I consider to have been contemptuous, but I also make the entire record of the case of United States of America v. David T. Dellinger, et al., 69 CR 180, a part of this proceeding.
Much of the contemptuous conduct in this case does not show, of record. The constant murmurs and snickering emanating from the defense table were not captured on the printed page. No record, no matter how skillfully transcribed, can adequately portray the venom, sarcasm, and tone of voice employed by a speaker. No record, no matter how skillfully transcribed, can adequately reflect the applause, the guffaws, and other subtle tactics employed by these contemnors in an attempt to break up this trial. I have not focused on these cheap theatrics, histrionics, and affectations. I note them for the record lest my silence be construed as approval. But for the sake of the citations of contempt in this case, I limit myself to that conduct which is clearly and adequately portrayed in the record.
This was a long trial. The behavior of the defendants and defense counsel was prepared with direct and defiant contempt for the court and the federal judicial system as a whole. Here is a record of exceptional circumstances which were disruptive of the proceedings. It has been my considered judgment throughout this case that the behavior of the defendants was aimed at baiting the judge and inciting and harassing the U. S. Attorneys in an attempt to stop the trial. I would have been derelict in my duty as a Federal District Judge if I were to permit such base and unethical tactics to succeed. Consequently, I have waited until this trial was concluded before making a final determination of contempt. The exigencies of such a complex and difficult case compelled me to follow that course.
DAVID T. DELLINGER
I.
On October 15th when the Judge entered the courtroom, Mr. Dellinger was standing and the following colloquy occurred:
"Mr. Dellinger: Mr. Hoffman, we are observing the moratorium.
The Court: I am Judge Hoffman, sir.
Mr. Dellinger: I believe in equality, sir, so I prefer to call people mister or by their first name."
The Court: Sit down. The clerk is about to call my cases.
Mr. Dellinger: I wanted to explain to you we are reading the names of the war dead.
The Marshal: Sit down.
*405 Mr. Dellinger: We were just reading the names of the dead from both sides.
The Marshal: Sit down."
Official Transcript Page 2425A.
Subsequently the jury was brought into the room. When the jury was seated, the defendant Dellinger once more rose and the following colloquy occurred:
"Defendant Dellinger: Before the witness resumes the stand, we would like to propose-
Mr. Schultz: If the Court please-
Mr. Foran: Your Honor. If the Court please, may the marshal take that man into custody? Defendant Dellinger: A moment of silence-
Mr. Schultz: Your Honor, this man-
The Court: Mr. Marshal, take out the jury."
(The following proceedings were had in open court, out of the presence and hearing of the jury:)
"Defendant Dellinger: We only wanted a moment of silence.
Mr. Foran: Your Honor, this man has announced this on the elevator coming up here that he was intending to do this.
Defendant Dellinger: I did not. It doesn't matter, I would have been glad to, but I did not.
Mr. Foran: Your Honor, I object to this man speaking out in court.
The Court: You needn't object. I forbid him to disrupt the proceedings. I note for the record that his name is-
Defendant Dellinger: David Dellinger is my name.
The Court: You needn't interrupt my sentence for me.
Defendant Dellinger: You have been interrupting ours. I thought I might finish that sentence.
The Court: The name of this man who has attempted to disrupt the proceedings in this court is David Dellinger and the record will clearly indicate that, Miss Reporter, and I direct him and all of the others not to repeat such occurrences." Official Transcript Pages 2429-30.
II.
When the witness Salzberg left the witness box in order to identify the defendant Hayden, the defendant Dellinger said to him, in a voice loud enough for the jury to hear:
"Mr. Dellinger: Quite a let down. I am really disappointed in you." Page 3770.
III.
On October 22nd, after the defendant Seale had defied a judicial order by speaking out again and again, after being told to stop, the defendant Dellinger rose and addressed the court:
"Mr. Dellinger: I think you should understand we support Bobby Seale in this- at least I do." Page 3642.
IV.
On October 27th, during the testimony of the witness Frapolly, the defendant Dellinger made the following comment:
"Mr. Dellinger: Mr. Foran, do you believe one word of that?
Mr. Foran: Your Honor, may the record show the comment from the defendant Dellinger, your Honor?
The Court: Yes. Mr. Dellinger has made several comments from time to time. The record may indeed show-
Did you get the comment of Mr. Dellinger? Mr. Dellinger: Yes. I asked Mr. Foran if he could possibly believe one word of that. I don't believe the witness believes it. I don't believe Mr. Foran believes it.
The Court: And continue to take his words, and I admonish you, sir, not to interrupt this trial by your conversation or your remarks. You have a *406 very competent lawyer representing you. You are not permitted to speak while he represents you." Page 4372.
V.
On October 28th, the following occurred:
"Mr. Kunstler: Your Honor, the defendants, with whom I have consulted, every one except Mr. Seale, have requested me to just make one question-ask one question of your Honor before they give me their decision, and the question would be: Is the price of my doing the compromising or waiving by Mr. Seale of his constitutional assertion that I am not his lawyer and he wants to defend himself?
The Court: You don't expect me to answer a question put to me that way, do you?
Mr. Dellinger: Why not? You expect us to answer a question." Page 4395.
VI.
At the close of the court session on October 28th, 1969, the defendant Dellinger refused to rise in the customary manner when the court left the room. Pages 4618-19.
VII.
On October 28th in the afternoon session, after the court had engaged in a colloquy with Mr. Seale concerning his right to cross examine witnesses, Mr. Dellinger rose and stated the following:
"Mr. Dellinger: And all the defendants support Bobby Seale's right to have a counsel of his choice here and affirm that he has been denied that right." Page 4638.
VIII.
On October 29th, Mr. Dellinger engaged in a physical struggle with one of the marshals who was attempting to restrain the defendant Bobby Seale, and when the court called a recess, Mr. Dellinger refused to rise in the customary manner. Pages 4724-4729.
IX.
On October 29th, in the afternoon session, when the court was compelled to call a recess, the defendant Dellinger again refused to rise in the customary manner. Page 4763.
X.
On October 30th, at the beginning of the court session, the defendant Dellinger again refused to rise in the customary manner. Page 4801.
XI.
On October 30th, after the defendant Hayden had engaged in a colloquy with the court, the defendant Dellinger commented aloud from the defense table:
"Mr. Dellinger: What about the motion? There was a motion. The motion was for voir dire of the jury. He hasn't ruled." Page 4844.
XII.
On October 30th, when the court again called a recess, Mr. Dellinger once more refused to rise in the customary manner. Page 4849.
XIII.
On November 12th, during the direct examination of the witness Bock, the defendant Dellinger laughed at the court as the court made an observation and Mr. Dellinger said aloud so that the jury could hear:
"Mr. Dellinger: We are not ashamed to laugh." Page 6258.
The conduct was repeated a few moments later during the testimony of Mr. Bock and the following occurred:
"Mr. Schultz: Mr. Kunstler is laughing so he can influence the jury with the impression that this is absurd. That is why he is laughing aloud because he-if Mr. Dellinger would stop talking when we are addressing the court-
Mr. Dellinger: I am trying to tell something to my lawyer. It is absurd. It is-he is a vaudeville actor." Pages 6288-89.
*407 XIV.
On November 19th, during the cross examination of the witness Bock, the following occurred:
"Mr. Schultz: Objection. That has no bearing, no probative-if Mr. Dellinger will stop talking to me when I am trying to address the court-
Mr. Dellinger: I don't talk to you.
Mr. Schultz: And mumble to me every time I am trying to make an objection-
Mr. Dellinger: Don't go making up things, Richard Schultz. I didn't talk to you. I don't mind your making all of these phony objections, but when you start lying about me, too, I think that is disgusting.
The Court: Mr. Dellinger-
Mr. Dellinger: I didn't say a word to him, Judge.
The Court: You just said enough to make me admonish you not to make any more remarks like that.
Mr. Kunstler: Your Honor, you ought to admonish the U. S. Attorney not to make remarks-
The Court: He may not speak out here. He has a lawyer.
Mr. Dellinger: He just lied about me.
Mr. Schultz: I am sitting next to Mr. Dellinger and he is mumbling under his breath to me. He has been doing this for the last-
Mr. Dellinger: I said 'Ah' when he asked a bad question. I didn't say a word-
The Court: You have competent lawyers to speak for you, sir, and I shall not permit you to speak for yourself. Mr. Kunstler: Then your Honor, I would ask your Honor to direct the U. S. Attorney not to take comments that are made here at the table to me or any other member of this table as remarks always addressed to him.
Mr. Foran: Your Honor, I was sitting here, too. I overheard the remark.
Mr. Dellinger: You're adding a lie to his lie, and I say that on my word.
The Court: I see that you are not accepting my admonition, sir, and I ask the reporter to make note of that." Pages 7341-43.
XV.
On November 20, after the Court had made a ruling refusing to grant a writ of habeas corpus ad testificandum, the following colloquy took place:
"Mr. Dellinger: Aw Jesus-fascist-
The Court: Who is that man talking Mr. Marshal?
Mr. Dellinger: That is Mr. David Dellinger and he is saying that that is an arbitrary denial when you say who is key to our defense. We know who is key to our defense and we want to put on our key defense witness.
The Court: Mr. Marshal, ask that man to sit down.
The Marshal: Sit down, Mr. Dellinger.
Mr. Dellinger: I think that is acting like a fascist court like Mr. Seale said when you make decisions of that kind and deprive us of our witnesses. Because he has already been persecuted in one court, now you are persecuting him and us in another court." Page 8078.
XVI.
On November 26th, the day before Thanksgiving, after the Court determined that it would be unable to permit the sequestered jury to return home for the Thanksgiving Holiday, the following occurred:
"Mr. Dellinger: We move-
Mr. Kunstler: Your Honor, we move-
Mr. Weinglass: It's true. It's a true comment.
The Court: Who was that man who said he moved that is not a lawyer?
*408 Mr. Dellinger: I am telling our lawyers we move the jury not have to be sequestered so they can be home.
The Court: Mr. Marshal, will you have that man-
Mr. Dellinger: You asked about it, and I am telling you.
The Court: Let him sit down.
Mr. Dellinger: I was telling the lawyer before.
The Court: He has a lawyer." Page 8610.
XVII.
During the testimony of the witness Meyerding, the following occurred:
"The Court: I note for the record that certain of the defendants, Dellinger particularly-
Mr. Dellinger: I did not.
The Court: -made noises. Mr. Dellinger: I beg your pardon, I did not utter a single noise. When I have noises, [sic] I stand up and say so.
The Court: I heard you, sir.
Mr. Dellinger: I did not sigh; I did not utter a single noise, absolutely not.
The Court: And the man sitting next to you did also.
Mr. Dellinger: You mean to say you are calling me a liar? If so, you are a liar. I did not utter a single noise.
The Court: And make a note of that last statement.
Mr. Dellinger: I have called this a fascist court before and I think he is trying to prove it. It is absolutely irresponsible on your part.
The Court: Make a note of that last statement.
Mr. Dellinger: Absolutely irresponsible.
The Marshal: Sit down, please.
Mr. Dellinger: And dishonest.
The Court: Make a note of that last statement.
Miss Reporter, have you all of Mr. Dellinger's comments? Have you?
The Reporter: Yes." Official Transcript, Pages 10,086-87.
XVIII.
On December 11 during the cross examination of the witness Ochs, the following occurred:
"Mr. Dellinger: He answered. You don't have to keep asking that.
Mr. Schultz: I don't know how many lawyers there are at that table.
Mr. Dellinger: I am consulting with my lawyer.
Mr. Schultz: I don't know whether an objection is being made or what?
The Court: The Court notes that-
Mr. Kunstler: Your Honor, Mr. Dellinger has made a remark to me that he doesn't have to keep asking the same question.
The Court: Will you let me finish my observation?
Mr. Kunstler: Oh, go ahead. I thought you had.
The Court: Mr. Dellinger made a loud remark which provoked Mr. Schultz to say: 'I don't know how many lawyers there are,' and I think that was a good inquiry. Mr. Dellinger has done that sort of thing before and I merely wanted to identify the person, that is all, for the record." Pages 10,628-29.
XIX.
On December 15, when the Court was compelled to request the marshal to remove Mr. Stuart Ball, Jr., the following occurred:
"The Court: Mr. Marshal, take Mr. Ball out.
Mr. Dellinger: That is an injustice.
Mr. Kunstler: That is a lawyer who is part of our defense team.
The Court: He is not a lawyer admitted to practice in this court.
Mr. Kunstler: You are removing a lawyer from the defense table. *409 The Court: No, he is not a lawyer admitted to practice here.
Mr. Kunstler: That doesn't matter, your Honor. He is-
Mr. Dellinger: He wasn't laughing." Pages 11,179-80.
A few moments later, the following colloquy occurred:
"Mr. Kunstler: But he didn't laugh, your Honor. If he laughed, that is one thing, perhaps, but two defendants have admitted laughing.
The Court: My eyesight is good and my hearing is good.
Mr. Kunstler: You were wrong about Mr. Dellinger. You thought he made a noise. We have submitted an affidavit as to that.
The Court: I suppose I didn't hear him call me a liar in open court.
Mr. Kunstler: That is a different matter, your Honor.
The Court: Oh-
Mr. Dellinger: I said if you said I was talking that that was a lie, that you were calling me a liar.
The Court: You didn't-you said 'You are a liar.'
Mr. Kunstler: No. Read the transcript.
Mr. Dellinger: You accused me of being a liar and I said that was a lie.
The Court: Will you sit down?
Mr. Dellinger: And you are very prejudiced and unfair and I state that in open court. It is not a fair trial and you have no intention of giving us a fair trial and when I speak throughout the country, I say that you are the assistant prosecutor or maybe the chief prosecutor and it is true and the people of this country will come to learn that about you and about some other judges in this court.
A Spectator: Right on.
Mr. Davis: That's why we were laughing."
(There was disorder in the courtroom.)
"A Spectator: Right on, boys.
Mr. Hoffman: You said you were doing it for us.
The Court: Have you got all those remarks, Miss Reporter?
Mr. Dellinger: Now one of our legal staff you have falsely accused and that is why I speak up.
The Court: Now, if you will permit me-
Mr. Kunstler: Your Honor, what is happening? The marshals are taking people out.
A Spectator: Why don't you clear the whole courtroom?
The Court: Will you-
Mr. Dellinger: You see, we are interested in the truth and you are not and the government is not and that is what the conflict is here." Official Transcript, Pages 11,182-85.
XX.
On December 30, during the direct examination of the witness Hoffman, the following occurred:
"Mr. Marshal: Mr. Dellinger-
Mr. Dellinger: I am a little upset by the dishonesty of the court's process- yes, my name is David Dellinger.
The Court: That man's name is Dellinger, Miss Reporter.
Mr. Dellinger: They are not interested in the truth. They just want one side of things to go in, even made up things, but they won't allow the real things, the real truth.
The Court: Mr. Dellinger is continuing to speak, Miss Reporter.
Mr. Dellinger: Darned right. I hope the jury understands that, too.
Mr. Schultz: Your Honor, this is a deliberate attempt to make it appear-
Mr. Dellinger: What do you-
Mr. Schultz: -that because the defendants don't follow-
The Court: Mr. Schultz-
Mr. Kunstler: Oh, your Honor-unfair to the government.
*410 Mr. Dellinger: The government will go to jail for ten years, I suppose.
Mr. Schultz: Your Honor-
The Court: Just a minute, sir. Now, Mr. Schultz, don't underestimate anybody's intelligence. Anyone knows that has been in a courtroom before that a defendant represented by counsel doesn't speak out. Mr. Dellinger: Even when he's being railroaded he doesn't speak out.
The Court: I hope, Miss Reporter, you get those remarks.
Mr. Kunstler: Your Honor, there comes a time when every human being feels the necessity to speak out and Mr. Dellinger-
The Court: I didn't ask you to philosophize.
Mr. Kunstler: I am not philosophizing, I am defending a client.
The Court: There comes a time when courtroom decorum must be observed.
Mr. Dellinger: Decorum is more important than justice, I suppose.
The Court: I have never sat in a trial over the many years where a defendant has spoken up on his own when-
Mr. Froines: Perhaps you can give him four years like you gave Bobby Seale.
Mr. Dellinger: We just walk politely into jail." Official Transcript, Pages 12,913-16.
And very slightly later:
"The Court: And I direct you to sit down or I will have the marshal-
Mr. Kunstler: Mr. Schultz says-
The Court: Please ask this lawyer to sit down.
Mr. Kunstler: I have a right to stand and talk in defense of my client.
Mr. Dellinger: That's why we have to speak up, because you won't let our lawyers have a fair chance." Page 12,916.
XXI.
On January 9th, after the court directed Mr. Rubin to remain in the courtroom and use the washroom facilities in the adjoining lock-up if he needed to go to the bathroom, the following colloquy occurred:
"Mr. Rubin: I want to go to the bathroom.
Mr. Dellinger: Convicted us already.
Mr. Davis: Guilty until proven innocent." Page 14,716.
XXII.
On January 9th, when the court reiterated its order concerning the use of the washroom facilities, the following occurred:
"The Marshal: Mr. Dellinger-
The Court: Let the record show that after I requested the Marshal to keep Mr. Dellinger quiet he laughed right out loud again. Out loud. The record may so indicate.
Mr. Dellinger: And he is laughing right now, too." Page 14,824.
XXIII.
On January 12th the court made an evidentiary ruling and the following occurred:
"The Court: The objection of the government to Defendants' Exhibit 279 for identification will be sustained.
Mr. Dellinger: Oh, ridiculous.
The Court: Who said 'ridiculous'? Mr. Dellinger: I did. It was ridiculous. I stand on that fact. You don't want us to have a defense.
The Court: I just wanted to know who said that.
Mr. Dellinger: You don't want us to have a defense. You are a hypocrite.
The Court: Did you get all those remarks?
Mr. Dellinger: I stand by them, too. You earned them. It really brings the whole system of justice under discredit when you act that way. What *411 Mayor Daley and the police did for the electoral process in its present form you are now doing for the judicial process.
The Court: Mr. Marshal-
Mr. Davis: We want a fair trial.
Mr. Dellinger: You don't think it is a fair trial, do you?
Mr. Marshal: Just be quiet, Mr. Dellinger.
Mr. Dellinger: You are being paid by the same company but you ought to be able to think for yourself a little bit.
The Court: Bring in the jury.
Mr. Weinglass: If your Honor please, before the jury comes in, I have a motion to make on behalf of the defendants. Prior to the jury leaving the court and while they were still here in the room and pursuant to my request for a five minute adjournment, your Honor made a statement in open court in the presence of the jury that it was your attitude that this case should be 'gotten rid of.'
The Court: I didn't say that.
Mr. Dellinger: You did.
A Defendant: You did so.
The Court: I said we shouldn't be wasting time. You got more than a five minute recess. I waited here.
Mr. Dellinger: You said 'get rid of the case.'
Mr. Weinglass: As far as I'm concerned-
The Court: Mr. Marshal, will you tell that man to remain quiet?
The Marshal: Mr. Dellinger-
Mr. Weinglass: I most respectfully dispute the Court's recollection. Your Honor did use the words 'get rid of.'
The Court: Whether you are respectful or not, the evidence of the respect with which the court is treated has been demonstrated by one of the defendants.
Mr. Dellinger: I didn't say anything you didn't deserve.
The Court: I will say to you, Mr. Weinglass-
Mr. Dellinger: I only speak the truth." Official Transcript, Pages 15,139-41.
XXIV.
On January 14th the following occurred:
"The Court: Mr. Marshal, I am not here to be laughed at by these defendants, patricularly Mr. Rubin. Mr. Marshal: Mr. Dellinger, also, will you refrain from laughing?
Mr. Dellinger: That is a lie. And it wasn't Mr. Rubin. We laugh enough and you can catch us when we do but you just happened to get the wrong one.
Mr. Kunstler: Your Honor, I don't think the record should constantly have these references to chuckles.
The Court: I think the record should show that and I see that the record does. I don't share your view.
Mr. Kunstler: The Court has made a sally before and the room laughed and you didn't put that on the record.
The Court: I will not sit here-and you must know it by now, certainly-and have defendants laugh at my rulings, sir. And I will not hear you on that.
Mr. Kunstler: You don't mind if they laugh at me or if they laugh at someone else.
The Court: I will ask you to sit down.
The Court: Will you sit down? I saw Mr. Dellinger talking. If anybody else did-
Mr. Dellinger: You did not see me talking. My lips were not moving. That is not the first time you have lied in this courtroom. My lips were not moving.
The Court: Did you get those last remarks?
Mr. Schultz: It was the defendant Hoffman.
*412 Mr. Dellinger: If you can make an honest mistake, that's all right, but to lie about it afterwards and say you saw me talking when you didn't, that is different.
The Court: Will you ask that man to sit down.
Mr. Dellinger: You will go down in infamy in history for your obvious lies in this courtroom, of which that is only the most recent one.
Mr. Marshal: Sit down, sir.
Mr. Dellinger: It is absolutely true what I am saying.
Mr. Marshal: Will you-
Mr. Dellinger: Absolutely true.
The Court: Mr. Marshal, will you ask that man to be quiet?
Mr. Dellinger: You will be ashamed of that for the rest of your life, if anything can shame you.
Mr. Schultz: Your Honor, it was the defendant Hoffman sitting immediately behind Dellinger who made those remarks.
The Court: Let the record show-
Mr. Dellinger: Thanks for telling the truth, Mr. Schultz.
Mr. Kunstler: Mr. Hoffman attempted to clarify the record. He was the one responsible. He took the blame for it. It was not Mr. Dellinger or anyone else, or Mr. Rubin.
The Court: Oh, I heard Mr. Rubin and saw him.
Mr. Kunstler: Your Honor-
The Court: Will you please sit down? I will make the rulings here.
The record will be what it is.
Mr. Kunstler: I want the record-
The Court: It can't be any more clear.
Mr. Dellinger: I want to make the record clear. Mr. Rubin did not laugh. You are standing there saying you heard it. That is why I called you a liar. He did not laugh. I was sitting next to him.
The Court: Mr. Marshal-
Mr. Dellinger: And you made it up. It is about time this got out into the open so everyone could know what you are doing here. It is one thing to be prejudiced, it is another thing to be a liar.
The Court: Mr. Marshal, I ask you to restrain that man.
The Marshal: Be quiet.
Mr. Kunstler: He is trying to clarify the record.
The Court: He has got a lawyer.
Mr. Kunstler: I am his lawyer and I represent-
The Court: That is right, and we have had enough of this.
Mr. Kunstler: But the record must be crystal clear that it was not Mr. Dellinger, it was not Mr. Rubin. Mr. Hoffman-
The Court: Mr. Dellinger said enough.
Mr. Kunstler: Mr. Hoffman has taken the blame. The Court: I have never sat in fifty years through a trial where a party to a law suit called the judge a liar.
Mr. Dellinger: Maybe they were afraid to go to jail rather than tell the truth, but I would rather go to jail for however long you send me than to let you get away with that kind of thing and people not realize what you are doing.
The Court: Mr. Marshal, do I have to tell you again, sir." Official Transcript, Pages 15,585-91.
XXV.
Throughout the trial the defendant Dellinger has commented on the evidence and the witnesses presented by the prosecution. On January 16th during the cross examination of the witness Goodwin the following incident occurred:
"Mr. Kunstler: Then I think-
Mr. Dellinger: Now he is going into his imagination.
*413 Mr. Foran: Your Honor, there is testimony concerning this exact statement from Mr. Dellinger on August 28th between 10:30 and noon at 407 South Dearborn Street.
Mr. Dellinger: Yes, police agents, but you made it appear as if it was from my article. It is just Bill called the attention-
The Court: Whose are those last words? Did you get the words of Mr. Dellinger, Miss Reporter?
The Reporter: Yes. Mr. Kunstler: He was just pointing our, your Honor, that there had been no shift from-
The Court: I heard. I heard. I don't need your advice on that, Mr. Kunstler.
Mr. Foran: I shifted, your Honor, when Mr. Kunstler complained that I was talking about his article. I will go back and ask him another question." Official Transcript, Page 16,201.
XXVI.
On January 23, during the direct examination of the witness Davis, the court indicated that argument on a mistrial motion had been completed, and ordered Mr. Kunstler to sit down. After Mr. Kunstler flaunted the court's orders and continued to argue, the defendant Dellinger rose from his place at the defense table, and the following incident ensued:
"Mr. Kunstler: You haven't even heard the motion.
Mr. Rubin: You haven't heard it yet.
The Court: For a mistrial.
Mr. Kunstler: Yes, but I would like to argue it.
The Court: Oh, there is no ground for a mistrial.
Mr. Kunstler: Your Honor knows you have referred to the question of defendants taking the stand. You have committed the cardinal error of a court with reference-
The Court: I direct the marshal to have this man sit down. Mr. Kunstler: Every time I make a motion am I going to be thrown in my seat when I argue it?
The Court: You may sit down.
Mr. Dellinger: Force and violence.
Mr. Kunstler: If that is the ruling of the court, that we cannot argue without being thrown in our seats-
Mr. Dellinger: The judge is inciting a riot by asking the marshal to have him sit down.
The Court: That man's name is Dellinger.
Marshal Joneson: Will you be quiet, Mr. Dellinger.
Mr. Dellinger: After such hypocrisy I don't particularly feel like being quiet. I said before the judge was the chief prosecutor, and he's proved the point.
The Court: Will you remain quiet. Will you remain quiet, sir.
Mr. Dellinger: You let Foran give a foreign policy speech, but when he tries to answer it, you interrupt him and won't let him speak.
There's no pretense of fairness in this court.
The Court: Mr. Marshal, will you go to that man and ask him to remain quiet.
Mr. Dellinger: No pretense of fairness. All you're doing is employing a riot- employing force and violence to try to keep me quiet-
Marshal Joneson: Be quiet, sir. Mr. Dellinger: -just like you gagged Bobby Seale because you couldn't afford to listen to the truth that he was saying to you. You're accusing me. I'm a pacifist.
Marshal Joneson: Sit down, please, and be quiet.
Mr. Dellinger: I employ nonviolence, and you're accusing me of violence, and you have a man right here, backed up by guns, jails, and *414 force and violence. That is the difference between us.
Marshal Joneson: Will you sit down.
(Applause.)
The Court: Will you continue, please, with the direct examination of this witness.
Mr. Dellinger: There goes the violence right there.
Mr. Kunstler: That's the government in operation, your Honor, as it has been throughout this trial.
The Witness: Your Honor, that's my sister they are taking out of the courtroom.
The Court: Even your sister-
Mr. Kunstler: Nobody but the government has employed violence in this courtroom-with Bobby Seale, with spectators." Official Transcript, Pages 17,371-17,373.
At this point, the marshals found it necessary to remove several of the spectators from the courtroom for disorderly conduct. Mr. Kunstler made some remarks about the removal of the spectators, and Mr. Foran rose to defend the way the trial was being conducted. This precipitated the following outburst from Mr. Dellinger:
"Mr. Foran: Your Honor, traditionally in American law, cases are tried in a courtroom by the participants in the trial, not the audience, not spectators, not relatives of the defendants, but by witnesses and by the court and by the jury, not by shouting and screaming and voluntary statements from counsel, or from the defendants shouting out in courtrooms, because that is the American judicial system, and it's worked very well for two hundred years, and it's not going to change now for these people.
Mr. Dellinger: Yes, kept the black people in slavery for two hundred years and wiped out the Indians and kept the poor people in problems and started the war in Viet Nam which is killing off at least a hundred Americans and a thousand Vietnamese every week, and we are trying to stop it.
Marshal Joneson: Sit down.
Mr. Dellinger: And you call that ranting and raving and screaming because we speak the truth.
Marshal Joneson: Mr. Dellinger, sit down, please.
Mr. Foran: Your Honor, in the American-
Mr. Dellinger: And that judge won't let that issue come into the trial, that's why we are here.
Mr. Foran: Your Honor, in the American system there is a proper way to raise such issues and to correct them.
Mr. Dellinger: That was the proper way with Fred Hampton, wasn't it?"
Mr. Kunstler made several more remarks, and Mr. Schultz rose to answer him, and Mr. Dellinger interjected a comment again:
"Mr. Schultz: We complied with the rules of this court. We have made no statements to the press, to any press, since this case was indicted. Mr. Kunstler, on a regular basis, has been falsifying to the press, violating the rules of the court prohibiting every attorney in this case from making press conferences, and he has been doing it and he stands before this court and says the Government has.
Mr. Dellinger: And they have rules like that in Nazi Germany." Official Transcript, Pages 17,374 through 375.
XXVII.
On January 24, once more the testimony of the defendant Davis was interrupted. Mr. Foran was responding to an argument by Mr. Kunstler, when Mr. Dellinger interjected his remarks once more:
"Mr. Foran: In this case, your Honor, we have heard these people adopt or attempt to adopt Dr. King, attempt to adopt Senator McCarthy, Robert Kennedy, both of whom were better friends of mine than they ever were of theirs. Mr. Dellinger: Oh, my God.
*415 Mr. Foran: Mr. Kennedy appointed Mr. Schultz, your Honor.
Mr. Kunstler: Oh, your Honor-
Mr. Dellinger: Reverend Abernathy was the co-chairman of the Mobilization and I worked intimately with Martin Luther King and Ralph Abernathy.
Mr. Foran: Robert Kennedy appointed this young man as an Assistant United States Attorney.
The Court: Mr.-young man, will you have Mr. Dellinger sit down, and, Miss Reporter, did you get Mr. Dellinger's remarks?"
Mr. Dellinger did not sit down at the direction of the marshal and very slightly later the following ensued:
"The Court: Mr. Marshal, ask that man to sit down.
Mr. Dellinger: There has to be some way of speaking the truth. We have to speak the truth some way. If you won't allow it to come in other ways, we have to stand up and tell it because it is true.
The Court: Mr. Marshal-
Mr. Dellinger: Ralph Abernathy was the co-chairman and close worker-
The Court: Have that man sit down, Mr. Marshal, or do we have to have three marshals?" Official Transcript, Pages 17,808-17,811.
XXVIII.
At the end of the court session on January 24, while the court was attempting to instruct the jury prior to recess, Mr. Dellinger made several loud remarks at the defense table, which were easily overheard throughout the courtroom. The incident is reported as follows:
"The Court: With that, Mr. Foran, I think we will recess tonight until Monday morning.
Ladies and gentlemen-
The Marshal: Will you please keep quiet? Sit down. Sit down.
The Court: Ladies and gentlemen of the jury, we are about to recess until tomorrow morning.
Mr. Dellinger: -hear a pig talk about civil disobedience-
The Marshal: Mr. Dellinger-
Mr. Dellinger: I was just talking to my friend.
The Court: I will wait." Official Transcript, Page 17,860.
XXIX.
On January 30, the court was required to instruct the marshals concerning the behavior of disorderly spectators. Mr. Dellinger made the following sarcastic comment after that instruction:
"The Court: I direct the jury to disregard the applause of each and every person who participated in it and the marshals will exclude from the courtroom any spectators who applauded after the witness left the stand.
Mr. Dellinger: Thanks a lot. Thanks, fellows." Official Transcript, Page 19,032.
XXX.
On February 4, the incident occurred which finally led the court to revoke Mr. Dellinger's bail. During the testimony of the witness Riordan, Mr. Dellinger rose from his place at the defense table and interjected the following remark:
"Mr. Dellinger: Oh, bull shit.
The Court: Did you get that, Miss Reporter?
Mr. Dellinger: That is an absolute lie.
The Court: Did you get that, Miss Reporter?
Mr. Dellinger: Let's argue about what I stand for and what you stand for, but let's not make up things like that.
The Court: All those remarks were made in the presence of the court and jury by Mr. Dellinger."
*416 After a brief argument about the propriety of these remarks, the court determined to excuse the jury momentarily, and the following incident occurred:
"The Court: I will have to excuse you, ladies and gentlemen of the jury, with my usual orders.
Mr. Dellinger: You're a snake. We have to try to put you in jail for ten years for telling lies about us, Dick Schultz.
Marshal Joneson: Be quiet, Mr. Dellinger. Mr. Dellinger: When it's all over, the judge will go to Florida, but if he has his way, we'll go to jail. That is what we're fighting for, not just for us, but for all the rest of the people in the country who are being oppressed.
A Spectator: Damn right. Assert ourselves.
Voices: Right on.
The Court: Take that man into custody. Mr. Marshal, take that man into custody.
Voices: Right on, right on.
Mr. Schultz: Into custody.
The Court: Into custody.
Voices: Right on.
Mr. Davis: Go ahead, Dick Schultz, put everybody in jail.
Mr. Dellinger: Dick Schultz is a Nazi if I ever knew one.
Mr. Schultz: Your Honor, will you please tell Mr. Davis to walk away from me?
Mr. Dellinger: Put everybody in jail."
* * *
"Mr. Schultz: Your Honor, we have 3500 material. We have 3500 252-A-1 and 252-A-2.
The Court: I would like to make a note of those if you will go slowly, please.
Mr. Schultz: 3500 252-A-1 and 252-A-2. -A-1, your Honor, is the complete