LEVINE v. UNITED STATES

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Argument of Myron L. Shapiro

Chief Justice Earl Warren: Number 164, Morry Levine, Petitioner, versus United States.

Mr. Shapiro.

Mr. Myron L. Shapiro: Mr. Chief Justice, may it please the Court.

This is certiorari to review the petitioner's conviction in the Southern District of New York for criminal contempt in refusing to answer certain questions before a district judge in a grand jury.

This is a companion case Emanuel Brown versus the United States decided by this Court at its last term and as a matter of fact, Mr. Brown and Mr. Levine are business partners.

The issue in this case is one which was not considered in the Brown case and that is the effect of the secrecy of the proceedings in which Levine was found guilty and convicted of criminal contempt by the district judge.

The issue is whether in such a proceeding has approved by this Court in Brown versus United States held in secret, the district judge can summarily, without trial or hearing, convict the man -- convict the grand jury witness of criminal contempt.

As in Brown, the petitioner here --

Justice William O. Douglas: Is that the one difference between this and Brown, the -- the secrecy?

Mr. Myron L. Shapiro: In fact, the one factual difference, Mr. Justice Douglas, is the fact that the record in this case unlike Brown is clear that on the second time when the petitioner was brought down to the District Courtroom before the district judge by the Assistant of United States Attorney with the grand jury there, the courtroom was cleared at the direction of the Court and remained cleared throughout the proceeding until the petitioner was admitted to bail after sentence.

Justice Mr. Justice Stewart:: This was a limited grant of certiorari, wasn't it?

Mr. Myron L. Shapiro: That's right, Mr. Justice Stewart, it was limited to -- to these two questions which are -- which appear in my -- in my brief at page 2, the two questions presented and on which certiorari was allowed.

As in Brown, the petitioner appeared before the April 1957, regular grand jury in the Southern District pursuant to a subpoena which stated that it was investigation under the Motor Carrier Act.

His counsel was present while he was in the grand jury room.

He refused to answer the same six questions as Brown on the ground of possible self-incrimination.

Brown had already been convicted.

The petitioner was brought down before the District Judge Levet in room 318 of criminal part of the Southern District Court.

And there, the hearing was had on his obligation to answer the questions whether the immunity statute applied or not.

And the district judge directed the petitioner to answer the six questions.

This was on a Friday.

He was directed to -- directed to appear on Monday at 11:30 before the grand jury and to answer the questions.

He appeared on the Monday at 11:30 with his counsel, counsel was in the anteroom while he was before the grand jury.

And their petitioner refused to answer the questions on the ground of possible self-incrimination.

The petitioner and his counsel were then directed to proceed to the courtroom of District Judge Levet.

When counsel -- when petitioner and counsel arrived there along with the grand jury and the Assistant U.S. Attorney, the district judge directed that the courtroom be cleared which was done and the record notes that.

On page 30 of the record, it is clear and the Government does not, in this case, disagree with the statement that the courtroom was cleared and that it continued cleared throughout the entire proceeding.

Proceedings then occurred as they did in the Brown case with petitioner's counsel requesting that notice and specification of charges and hearing in accordance with due process and Rule 42 (b) be have.

This was denied.

I will not refer to other matters that were raised as they are not within the petition -- within the grant of certiorari here.

Then the grand jury stenographer was put on the stand and testified as to what had happened in the grand jury room, that is the refusal of the petitioner to answer the six questions.

The district judge, over the objection of counsel, directed that -- then directed that the petitioner take the stand.

Request was made that the proceeding be had in accordance with Rule 42 (b) and the district judge overruled that request and stated that this was a proceeding, a contempt proceeding pursuing at the Rule 42 (a), thereby, in granting among -- in -- in our opinion, a new type of contempt proceeding on the rule.

The petitioner took the stand and the district judge put each question, refused by him to be answered to him over objection and in each case, the petitioner refused to answer on the ground of possible self-incrimination.

At the end of the putting of these questions, he was also asked by the district judge at the request of the Assistant U.S. Attorney as to whether he would answer the questions and sent back to the grand jury room which he stated, he would not do.

The district judge then directed him to stand down and stated that he would listen to any reason as to why he should not be held in contempt.

At this point again, request was made that the proceeding be in accordance with due process and with Rule -- Rule 42 (b) that there be a notice, specification of charges and a hearing.

This was denied.

There was argument as to whether he should be adjudicated in contempt, what the sentence should be and the petitioner received the sentence of 12 months.

He was adjudicated in contempt and received the sentence of 12 months.

He was admitted to bail and is still on bail.

It is the petitioner's contention that the secrecy of these proceedings from the time at least that he was put on the stand in the courtroom to the time of the adjudication and sentence made these proceedings bad that it was not in accordance with due process that -- and the due process prohibits in a secret proceeding such as this, the summary adjudication of contempt by the district judge without notice, without hearing and without charges.

In this connection, the prime case is Cooke versus United States, 267 U.S.via 17.

In that case, Chief Justice Taft said that due process in criminal contempt requires notice, specification of charges and hearing except in one situation only and that is where some contumacious act is committed in the presence of the Court in the actual view of the Court while the Court is open in open court.

Otherwise, unless that it is public, unless it is a public act of contumacious conduct, there must be notice, specification of charges and hearing.

The point that Mr. Chief Justice Taft made in the Cooke case as to the reason why this exception, to the requirements of due process is permitted to -- in cases of contumacious conduct in open court is -- that it is necessary to vindicate the dignity of the Court, prevent demoralization of the Court's authority in public.

But where has here, the contempt -- the contempt occurs in a secret proceeding such as this, then there can be no demoralization of the Court's authority.

There can't be no need to vindicate the Court's dignity.

The normal due process proceedings, the notice hearing and specification of charges will serve and must serve because that is what the petitioner is entitled to.

Now, this Court in the Oliver case which followed a number of years later, reinforced and reiterated that rule.

That case was, as Your Honors know, a state court case that arose in the State of Michigan.

It involved the one-man grand jury.

In that case, Oliver was questioned by a circuit judge acting as a one-man grand jury.

He made answers which this one-man grand jury considered false and untrue.

This proceeding have been going on in secret without opening the courtroom, without opening the proceeding to the public, this one-man grand jury convicted Oliver of criminal contempt and sentenced him to the penitentiary, I believe for 60 days.

This Court reversed Oliver's conviction, held that it was a denial of due process in that case for the man to be held guilty of criminal contempt where the proceeding was had in secret.

The fact that the Oliver case arose under the Fourteenth -- Fourteenth Amendment requirement of due process should not affect this case because it arises under the Fifth Amendment.

Because then, we will have a situation where a state court defendant in a criminal contempt case would have less rights, less protection than the one in a federal criminal -- criminal contempt case where -- especially in the case of a -- the counsel to a grand jury witness.

Now, the contention is made that this wasn't entirely secret that there was just some sort of secrecy.

The -- this position is based upon the fact that the petitioner's counsel was present in the courtroom while these proceedings were had.

But the cases, it seems to me, are quite clear that the mere presence of counsel does not convert a secret proceeding into a public proceeding.

A public proceeding means the presence of the public, not the entire public or some opponents of this idea would urge in order to reduce it to an absurdity but to those members of the public who might be interested enough to attend and hear the proceedings.

At least there must be that access to the proceedings which would enable those members of the public interested who would come in here.

In this case, there was no such access to the public.

The mere fact that counsel was there does not make it anymore public.

He is not a representative of the public.

He is merely an arm of the witness, of the defendant, the petitioner here.

As a matter of fact, whatever burdens the defendant in this type of case would -- may bear because of the secrecy of proceeding.

Counsel bears them just as well because if he is too aggressive or too militant, he may face some kind of censure or -- or trouble with the judge in the -- in such a proceeding because there is no public there to observe the conduct and behavior of the Court.

It may also be contended that there was a waiver of this right to a public hearing in this criminal contempt case.

The fact is that no specific objection was made to the closing of the courtroom and it is not contended that specifically, counsel stated that he objected to the closing of the courtroom or the continued secrecy of the proceeding.

The fact is also nevertheless true that a number of times during these proceedings in the District Court, the counsel for petitioner did object to those proceedings as not consistent with due process and not in accordance with Rule 42 (b).

And this, it is -- I respectfully submit is sufficient to put -- to have put the Court and the Government counsel on notice of what the situation is.

Chief Justice Earl Warren: We'll recess now.

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Argument of Myron L. Shapiro

Mr. Myron L. Shapiro: Mr. Chief Justice.

Chief Justice Earl Warren: Proceed.

Mr. Myron L. Shapiro: May it please the Court.

At the time of the recess, I was discussing the question of whether there was any waiver by the petitioner so as to prevent this Court from considering the question.

And I pointed out that while no specific objection was made before it had been raised time and time again during the proceedings as to due process and the effect of Rule 42 (b).

But in any event, petitioner's position is that this is a constitutional right and while it may not be the rule in this Court that this right cannot be waived.

Nevertheless, there must be an express conscious waiver as in the case of a trial by jury.

This Court held in the cases which involved the question of waiver of trial by jury that it must be an express conscious waiver.

And as a matter of fact, in the Rules of Criminal Procedure promulgated by this Court, there is a requirement of an express conscious waiver.

No such express conscious waiver occurred in this case.

Request --

Justice John M. Harlan: Do you question the clearing of the courtroom while the question was being put by the judge to this witness?

Mr. Myron L. Shapiro: I do, Your Honor.

No, I do not.

But I say that that question has to be determined by how the proceeding ends.

If it ends, first of all, with the questions being answered, there's -- that's of no consequence.

But ends perhaps with the man being given a coercive sentence, that is being given into the custody of the marshall until he answers the questions, then perhaps it's not improper.

But if it ends in a conviction for criminal contempt, then the -- that clearing of the courtroom becomes improper.

Now, I say that that's not -- also, I say that this is not basically an important question because the only propriety which can be ascribed to it arises out of the secrecy of grand jury proceedings.

But in this case, the Government contends that he -- petitioner was not prejudiced because what transpired before the judge in putting these questions was immediately recorded and immediately transcribed and given to the public anyway.

So that the question of propriety would have nothing to do with it as far as I can see because for a further reason, that is that this was a -- a proceeding which the district judge described as one under 42 (a), to determine whether this man was going to be held in criminal contempt or not.

It was therefore then in the nature of a criminal proceeding and it have to public.

In that aspect of it, I say that that order was improper.

Justice John M. Harlan: Supposing the judge has gone to the grand jury room, in the whole proceeding including the holding of him for contempt in taking the place in the grand jury room.

Mr. Myron L. Shapiro: Well I would say in that situation that that would be error too because that would be a denial of due process and there would be a further complication which we don't have in this case and that is that the petitioner would not then have had counsel because certainly, counsel would not have been permitted into the grand jury room.

And I say that the fact that it's held in the grand jury room, in the judges' chambers or in the courtroom makes no difference.

If it results of a criminal conviction for criminal contempt, then the proceedings have to be public.

It is only, I say, where the contumacious act has occurred in open court before the judge and in the view of the judge that he can summarily adjudicate the man in criminal contempt, otherwise, he must proceed in accordance with the usual requirements of due process.

Now, this may seem to impose an unnecessary burden while you take the view of the case as the Government does that there is no issue of fact.

But Chief Justice Taft in the Cooke case points out that there are always issues of fact.

Maybe no issue of intent as there was in the Cooke case.

That issue may not be present here but there is an issue of mitigation, an issue of extenuation and other issues which may arise in the nature of the case.

And in that situation, there certainly should be a hearing, should be notice and a specification of charges because that is what due process requires.

Now, I have not spent any time on the question of the Sixth Amendment but it would seem to me that once you arrive at the answer that due process requires a trial of a hearing, then the Sixth Amendment applies and there -- there must be a public trial because the Constitution to some extent, maybe not to the extent that other -- some people would like to see it.

The Constitution must, to some extent, apply to criminal contempt proceedings.

At some point, the inhibitions and prohibitions of the Constitution must apply to a situation where a man is held in criminal contempt.

He has no right to trail by jury.

He has less rights than the ordinary defendant in a criminal case.

And I say that's certainly one of the rights that he must have under due process and under the Sixth Amendment is the right to a public trial.

Now, it is also clear, I submit, that since this is a constitutional right, the petitioner did not have to show -- does not have to show prejudice while there are some few -- some cases which hold that the defendant and where the public has been excluded in the show of prejudice.

There are other cases and more authoritative cases which hold that he need not show prejudice.

And that's especially true here because with -- we are concerned with a constitutional right, the depravation of a constitutional right.

And this Court has consistently, in the main held that where a constitutional right, such as the right to a public trial of due process is concerned, there need be no showing of prejudice.

And this record does not disclose any showing of prejudice but we submit that this is not a bar to reversing this conviction.

One of the important questions in this case is, when did the right to a public trial or public hearing or to the admission of the public whether you want to call at a trial or a hearing or some other kind of proceeding.

When did that right accrue?

It is petitioner's position that that right accrued when he was called to that stand in the courtroom by the district judge and the questions were put to him.

This was as the district judge said, a contempt proceeding pursuant to rule 42 (a).

This was a proceeding to determine whether he was in contempt of court.

He was therefore in jeopardy.

He was in jeopardy of his liberty at that point and it would seem to me that is, at the point where in the nature of proceeding the witness or the defendant is put in jeopardy that it becomes a trial or proceedings which must be public.

And therefore, we say that the right to a public trial accrued at the time that he was put on the stand.

The questions that we have raised here on the issue of public -- of a hearing in this type of case are, I respectfully submit, very important.

It may not be so apparent on the face of this case but the fact is that endorsing such secret proceedings in federal criminal investigatory practices can lead to many oppressive occurrences.

For example, a witness could be served early in the morning, what they forthwith, the subpoena to appear before a grand jury.

But to appear before that grand jury and refuse to answer be taken down before the judge, directed to answer, take him back to the grand jury, refuse to answer again and then be adjudicated in contempt, convicted of a crime all in secret and possibly be in the penitentiary or prison within the day.

This sort of thing can lead to abuses in addition to the fact that it is a claim and clear depravation of due process of law and denial of the rights under the Sixth Amendment of the Constitution.

Thank you.

Chief Justice Earl Warren: Mr Monahan.

Argument of Philip R. Monahan

Mr. Philip R. Monahan: Mr. Chief Justice, may it please the court.

In the Brown case of last term, this Court held that where a witness has been directed by a judge to answer a question or group of questions before the grand jury and the witness refuses before the grand jury, to obey the judge's order, the judge while he may, in his discretion, institute a proceeding by notice and hearing under Rule 42 (b) in which hearing, since the contempt did not occur.

In present of the judge, there would have to be adduced proof of the fact that the witness refused to obey the judge's instruction.

But that on the other hand, the judge in his discretion could give the witness another chance.

In effect, perhaps waive the completed contempt before the grand jury and give the witness another chance, a -- a locus poenitentiae, I think it was the -- this Court put it.

In a new proceeding in the presence for the grand jury presided over by the judge in which the judge personally propounded the questions to the witness.

And then if the witness again refused, the contempt since it occurred in the presence of the court and under the eye of the judge, could be summarily punished under Rule 42 (a).

Now, the essence of a summary proceeding under Rule 42 (a) is precisely that there is no hearing, there is no trial because there's nothing to try.

The judge thought the contempt happened.

Therefore, I think that it is apparent that the constitutional guarantee of the Sixth Amendment toward speedy in public trial which is granted to all accused just have no applicability.

It's not an exception, it just has no applicability to a proceeding under Rule 42 (a).

Now, counsel had referred to the Oliver case.

It seems to me that the Oliver case has very little -- very little in common with this case.

That was a case where the contempt -- where the offense, although denominated contempt, actually was allegedly perjurious testimony before the judge grand jury.

And the reason why the judge thought that the testimony was false was that another witness would appear before the judge, had given a different version of the events.

And the judge without any trial, without according the witness counsel or giving him any of the incidents of a trial, adjudicated him in contempt.

And this Court held that that could not be reconciled with due process.

Well, in this case, the most important distinction is that there was nothing to try.

As I said before, the contempt occurred in the eye -- under the eye of the court.

I think that's the most important distinction.

Another distinction is that here, the most important member of the public, the petitioner's counsel, was concededly present throughout the proceedings vigorously asserting the witness' interest every step of the way.

It seems to me, that far cry from the situation of the Oliver case, entirely apart from the other distinction that I mentioned a moment ago.

Now, the question might arrive, and that should before the court.

How about the adjudication itself?

Should that have been (inaudible).

Now, I'm -- I'm distinguishing now between adjudication of contempt and a trial.

As I point out a moment ago, there was no right to a trial.

But should the judge, after the witness had disobeyed the judge's order to answer the questions right in the presence of the judge, should he then have opened the doors to the public?

The -- the session at that time was properly closed in the public since it was an essence of grand jury proceedings.

Should he then have opened the doors to the public?

Possibly so but I think that particularly in view of the fact that the judge asked counsel for the -- for the witness to -- to give him any reason why he should not pronounce the witness then and there in contempt.

And neither the witness nor his counsel nor anyone present suggested to the judge, “Your Honor, remember this is still close to the public.

Before you adjudicate this man in contempt, you should reopen the -- the courtroom to the public.”

If that had been done, I'm sure -- I'm sure the judge would have had no hesitancy in doing that, but it was not done.

In other words, there was no objection made and it has elementary that the purpose of an objection is to avoid a situation where a judge is, so to speak, trapped into committing error.

Now, it seems to me that there just -- is no (Voice Overlap) --

Chief Justice Earl Warren: Is that entrapment?

Do you claim entrapment here?

Mr. Philip R. Monahan: Oh, no sir.

No, I mean -- not entrapment in the -- in the legal sense of that term sir, I didn't mean that, no.

Chief Justice Earl Warren: Well, what -- what term that says should mean it?

Mr. Philip R. Monahan: I mean in the sense of asking the witness and his counsel to give him any reason why he should not then and there pronounced the witness in contempt.

And then the -- neither the witness nor his counsel object to the fact that the proceeding is still closed to the public.

Chief Justice Earl Warren: Do you have any authority to say that he must do that?

Mr. Philip R. Monahan: Is that the judge?

Chief Justice Earl Warren: No that the -- that the defendant or his counsel must do that.

Mr. Philip R. Monahan: I think (inaudible) the general authority that if there is anything that a party or his counsel finds objectionable about any action that the judge takes or proposes to take that just out of -- out of fairness, it should be called to the judge's attention.

So that he can correct his mistakes or his imminent mistake if it would be a mistake.

Chief Justice Earl Warren: Have you found any -- any cases that are contrary to that so far as -- so far as public trial is concerned?

Mr. Philip R. Monahan: It -- oh, it is -- it is clear that in the matter of plain and prejudicial error that a court, an -- an appellate court, may sua sponte of its own volition in the interest of justice, correct an error even though it was not called to the judge's attention, even though no objection was taken.

Chief Justice Earl Warren: Have you found --

Mr. Philip R. Monahan: -- and see that.

Chief Justice Earl Warren: -- any cases that there on -- on this subject, the right to a -- the right to a public trial as to whether it's an obligation of the -- of the defendant to insist the -- the public?

Mr. Philip R. Monahan: No, I have not, sir.

Chief Justice Earl Warren: There are not neither way?

Mr. Philip R. Monahan: I'm not sure whether there are any on a matter of a true public trial but remember, I -- I made a point a moment ago, sir, that there was no right to a trial here.

The only question --

Chief Justice Earl Warren: You have a point, yes but -- but assume there was a trial here.

Mr. Philip R. Monahan: Oh, I think that if there was a right to a trail, then even though the counsel failed to -- to demand one or to object to the failure to give one, I would concede that an appellate court in its discretion could correct that error even though the object was not made.

But this is an entirely different case, Mr. Chief Justice, if I may suggest so, there was no right to a trial here.

But solely, the only question I'm addressing myself to now is whether or not possibly he may have been entitled to have the adjudication at -- it was really a formality, sir.

Chief Justice Earl Warren: Well, do you have any -- any authority to the fact that -- that a conviction of criminal contempt is not a trial?

Mr. Philip R. Monahan: Yes, sir.

Chief Justice Earl Warren: What case?

Mr. Philip R. Monahan: A conviction of criminal contempt under Rule 42 (a).

Chief Justice Earl Warren: No.

The conviction -- any conviction for a criminal contempt is not a trial.

What -- what authority do you rely on?

Mr. Philip R. Monahan: Well, I -- I must distinguish, sir, between a 42 (a) conviction and a 42 (b) conviction.

Chief Justice Earl Warren: Well, let me put it to you this way.

Does this man stand convicted of criminal contempt?

Mr. Philip R. Monahan: Yes, sir.

Chief Justice Earl Warren: Alright.(Voice Overlap)

Do you have any --

Mr. Philip R. Monahan: Summary -- summary of criminal contempt.

Chief Justice Earl Warren: Do you have any -- do you have any authority that says that a man can be convicted of criminal contempt without a trial?

Mr. Philip R. Monahan: Yes, sir.

Chief Justice Earl Warren: What is it?

Mr. Philip R. Monahan: Ex parte Terry.

Chief Justice Earl Warren: Ex parte Terry.

What does it say?

Mr. Philip R. Monahan: It says in a -- in a summary -- a summary contempt proceeding, there is no right to a trial.

Chief Justice Earl Warren: Alright.

But what --

Mr. Philip R. Monahan: It's -- it's cited in our brief, sir.

Now --

Chief Justice Earl Warren: But isn't that in a public -- in a public way that he must -- he must commit contempt?

Mr. Philip R. Monahan: The --

Chief Justice Earl Warren: Was -- was not contempt be committed in front of the public?

Mr. Philip R. Monahan: The -- the court did not in -- in that case it happened that the contempt was committed in a -- an open court.

Chief Justice Earl Warren: Do you know of anywhere it was committed in secret?

Mr. Philip R. Monahan: No sir.

Chief Justice Earl Warren: Do you believe that makes any different?

Mr. Philip R. Monahan: I don't think so, sir.

I think that as long as it's committed under the eye of the court, so that there is -- so that there is nothing to try, then it should not make any difference.

Chief Justice Earl Warren: So a man then could be brought into a secret proceeding and that what it's suppose to be a contempt --

Mr. Philip R. Monahan: A properly --

Chief Justice Earl Warren: -- and walk -- and walk right out to the penitentiary --

Mr. Philip R. Monahan: A properly a secret proceeding.

Chief Justice Earl Warren: -- without any -- without any trial of any kind.

Mr. Philip R. Monahan: A -- a proper -- a properly secret proceeding.

If he -- if he commits contempt in a properly secret proceedings, I would agree with -- with your observation, sir.

Now, in this case, not only has there been no prejudice but the point was untimely raised.

I think there was -- there was a -- even -- even if there was prejudice, there was a further point that this was not raised until the Court of Appeals.

And so for all these reasons, we submit that the judgement appealed from is correct.

Justice Potter Stewart: The Court of Appeals (Voice Overlap) didn't -- didn't deal with this precise question did they, in their opinion?

The Court of Appeals didn't discuss this matter of -- of the courtrooms having been cleared.

Am I right about that?

Mr. Philip R. Monahan: I think that it said that the point was -- was implicitly decided by the Brown case.

The opinion, it's a per curiam opinion -- opinion, sir on page 46 of the record.

Justice Potter Stewart: I didn't see that they discussed it, as I see it.

Mr. Philip R. Monahan: I think that you are right, sir.

I think that it's not discussed.

Justice Potter Stewart: Of course, has been the final sentence of their opinion is attached also as they could use -- and I suppose this question, if it was raised there, was disposed of by that sentence but there is not any specific discussion of this point.

Mr. Philip R. Monahan: That's right.

I think that the point is that the Brown decision --

Justice Potter Stewart: Yes.

Mr. Philip R. Monahan: -- implicitly decided this point too, I'm mean -- I mean implicitly.

Justice John M. Harlan: (Inaudible)

Mr. Philip R. Monahan: Oh, yes.

But I mean the Brown decision decided everything that is pertinent to a disposition of this point, is my point.

Chief Justice Earl Warren: Where do you suggest, Mr. Monahan, that he should have raised this first, this point?

Mr. Philip R. Monahan: When, Judge Levet, after excusing the witness from the witness stand and when he said, "I will listen to any reason why I should not pronounce this witness in contempt."

Then with the time for -- for the point to be raised that the adjudication should be made in public, if ever.

Chief Justice Earl Warren: And you believe if he didn't do it then, he is out for all time.

Mr. Philip R. Monahan: Well, I -- I think that -- yes, in the absence of any showing of prejudice.

Chief Justice Earl Warren: Well, let's -- let's keep the absence suppress this out.

There might be a difference of opinion on that but let's just leave the question of prejudice out.

Is that the last time, last opportunity he'd have to raise it?

Mr. Philip R. Monahan: Well, I think the -- possibly, he could do it next day.

Chief Justice Earl Warren: In -- in what kind of proceeding?

Mr. Philip R. Monahan: Just after the judge to resentence him publicly.

Chief Justice Earl Warren: Is there procedure for that?

Mr. Philip R. Monahan: Oh, I think that -- I'm quite sure that it -- a District Court has the power to vacate its own order of a cause shown and to -- and to re-adjudicate a resentence, yes.

Chief Justice Earl Warren: Well, is that something that a man would miss doing at his peril.

Mr. Philip R. Monahan: Well, when you say as his peril, sir, I think that --

Chief Justice Earl Warren: Well, in his peril means in jail for a year.

Mr. Philip R. Monahan: I think that --

Chief Justice Earl Warren: That's what I mean by that.

Mr. Philip R. Monahan: I think that an appellate court -- this Court may if it thinks that that adjudication should have been made publicly.

Then -- and nothing about the trail now, the adjudication could sua sponte in its own discretion despite the failure of counsel in the District Court to -- to raise the point, could order that this case be remanded for resentencing, re-adjudication.

However, I don't think there's any necessity for it because there has been no showing of prejudice.

Justice Hugo L. Black: Suppose he had been tried for larceny before the judge without a jury?

Judge sat immediately before he started and said, "I want nobody here and put everybody out of the courtroom.”

And tried him, sentence into a year, would you say that it was necessary when the judge called him up to sentence him, to raise the question of a public trial?

Mr. Philip R. Monahan: I would say that was a case of plain prejudicial error, sir.

And -- and --

Justice Hugo L. Black: The difference you draw is that this is contempt.

Is it?

Mr. Philip R. Monahan: Summary, a properly summarily disposed of a contempt proceeding were there is no trial.

Justice Hugo L. Black: And if that --

Mr. Philip R. Monahan: That's my contention.

Justice Hugo L. Black: That's a reason in your judgment for a man being tried for contempt by a judge, contempt of the judge to have a public trial and commend it was not?

Mr. Philip R. Monahan: You -- you say -- you say tried for contempt.

That's where I have to stop, sir.

There was no trial here and there should not.

And there -- and this Court held in the Brown case that there properly was no trial.

Thank you.

Chief Justice Earl Warren: Mr. Shapiro.

Rebuttal of Myron L. Shapiro

Mr. Myron L. Shapiro: I just wanted to take a minute or two of this Court's time, if Your Honor please.

On the Terry case, Mr. Chief Justice Taft in the Cooke case said -- he affirmed Terry.

It was there held that a court of the United States upon a commission of a contempt in open court might act summarily without trial.

The important distinction between the Terry case and this case that is the Cooke case and having some at bar is that this contempt was not in open court, this was brought out in -- in the sentence.

So that the -- this Court's understanding to now on the Terry case has been because on its facts, it was a contempt committed in open court that it dealt with contempts committed in open court.

I also wanted to call Your Honors attention to the Sacher case, the contempt proceeding there 343 U.S. 1.

In that case Mr. Justice Jackson answering an argument of the petitioner's counsel there that (Inaudible) could have taken the lawyers out of the hearing of the jury and up to the bench and convicted him there for contempt each time they overstep the line, said that this is not possible.

I'm not quoting him exactly, he said, "In the Oliver case, we held that the contempt conviction must be public and therefore, it cannot be done in that way."

And I might also call Your Honors attention to the fact that the Cooke case was a contempt committed in chambers because the letter which cast as versions upon the district judge was delivered by an agent of the attorney who was held to be in contempt to the judge in chambers during a ten-minute intermission for rest and refreshment as to before it says.

And the Chief Justice Taft said that this is the mistake of the Court of Appeals and the district judge.

They considered this a contempt committed in open court, it was not committed in open court, and therefore, the procedure in the Cooke case was held to be bad and I respectfully submitted that the procedure here should be bad on the ground of secrecy.

Justice Potter Stewart: Mr. Shapiro, did you raise this question in the -- in the Court of Appeals?

Mr. Myron L. Shapiro: Yes I did, unfortunately I don't have my brief here but I did raise it.

(Voice Overlap) --

Justice Potter Stewart: But it doesn't appear anywhere in the record.

I mean that -- that we have nothing before us to indicated the --

Mr. Myron L. Shapiro: No, but I have -- I checked my bag and I have my brief I believe, I could submit it to Your Honors but -- but I did raise it.

The Court of Appeals, as Your Honor noted in the per curiam, did not make any reference to this in -- in the omnibus or catch-all as far as at the end, it said, “He raises no other point to the merit on this appeal.”

And I suppose in their opinion, this is one of those that was included.

Justice Felix Frankfurter: Was this case already argued before the Court of Appeals?

Mr. Myron L. Shapiro: Yes it was.

Justice Felix Frankfurter: Did you argue the Cooke case there?

Mr. Myron L. Shapiro: I don't believe that I mention the Cooke case in the court.

I relied there mainly on the Oliver case because these briefs in the Court of Appeals were written before the Brown case.

It was --

Justice Felix Frankfurter: Before the what?

Mr. Myron L. Shapiro: There -- the -- the briefs in the Levine case were written sometime ago and I did not refer to the Cooke case in the Court of Appeals but I did refer to the Oliver case which in a large measure is based on the Cooke case.

Justice Hugo L. Black: Did you file the petition there to --

Mr. Myron L. Shapiro: I beg your pardon?

Justice Hugo L. Black: Did you file the petition for rehearing?

Mr. Myron L. Shapiro: No, I did not sir.

Justice Hugo L. Black: Although they didn't come in as to the issue.

Mr. Myron L. Shapiro: No, I did not.

I thought the view of the statement at the bottom and I -- did not serve any purpose by doing so.

Chief Justice Earl Warren: Very well.