HOLDER v. BANKS
Legal provision: Writ Improvidently Granted
Argument of Karl J. Stipher
Justice William O. Douglas: We'll now hear number 73-841, Holder versus Banks.
Mr. Karl J. Stipher: Mr. Justice Douglas.
Justice William O. Douglas: Mr. Stipher?
Mr. Karl J. Stipher: May it please the Court.
21 other lawyers and I am from the State of Indiana represent the petitioner in this case.
The Honorable Cale J. Holder, Judge of the United States District Court for the Southern District of Indiana.
The general question presented to the Court today involves the correctness of the order of Judge Holder prohibiting William Kunstler from representing a criminal defendant Arthur Banks in the case pending in the Southern District of Indiana.
On December 14, 1972, Banks an inmate of the Federal Penitentiary of Terre Haute was charged with the assaulting a guard at the institution.
Thereafter on March 21, Kunstler an out-of-state lawyer, who was submitted to practice in New York, filed an application for leave to appeal on behalf of Banks.
At the request of the Government, a hearing was held and Judge Holder denied the application of Kunstler to represent Banks.
Kunstler then filed the mandamus action against Judge Holder in United States Court of Appeals for the Seventh Circuit which order Holder to vacate his order and to permit Kunstler to represent Banks.
A petition for rehearing in the Banks case was denied by the Seventh Circuit by a vote of four to three, and then this case came to this Court.
Judge Holder denied Kunstler the right to represent Banks in this case because of numerous delays in the trial caused by Kunstler and because Kunstler after being retained as counsel for Banks, made statements to public audiences, and news media in violation of the rules of ethics of the American Bar Association and in violation of Rule 27 of the District Court.
The following statements were made by Kunstler to public audiences and news media while this case was pending in the Southern District of Indiana.
Kunstler said that his client Banks was assaulted by the prison guards, that the charge against Banks is purely reiterative.
A cheap little way of getting back at him in being for being a troublemaker and I am, if you want to look at our brief on Page 6, I am referring to the statements where they are contained.
Kunstler was ascertain that Banks was brutalized by the guards.
That it was a common cover up tactic in order to protect the guards to file charge against Banks.
That all the evidence is inside the prison walls under the control of the authorities who brought the charges against Banks.
The word of the guard is always taken over that of an inmate.
That Banks got into all this trouble because he does not act like most to the black inmates who Uncle Tom it inside, but there is a lot of antagonism against Banks because his wife is White.
That Attorney Kunstler urged students at Terre Haute to organize demonstrations and supported Banks and to fill of Courtroom with sympathetic spectators during the trial.
That anything they can do to call attention to the trial will be welcome.
I am not asking them to blow up the Courthouse by that certainly would draw attention.
Of course he was quited as being proud to be associated with Mr. Banks as he represents the finest of the pacifists of anti war movement.
That Mr. Banks is a black man who was sent to jail for his beliefs in the value of human life and the dignity of all the people at a time when many who have much more to defend choose alternatives to incarceration.
That Mr. Kunstler sees this indictment as a political attack by the Prime, by the prison administration on an individual who firmly stands for his beliefs, who was articulate and spokesman for the black liberation of pacifism, and therefore a threat to the smooth running of suppression that is so much a part of prison life in this country today.
That Mr. Kunstler has reported has saying “This case typifies the strategy used to quiet dissent among the inmates for the case as such, that due process is virtually an impossibility.
The moment, he Banks, went into prison he was doomed.
The only successful way to defend yourself against charges such as those against Banks is by creating a complete support group around the trial that includes demonstrations and making sure every court session has a full house and listing celebrities who are interested in the case and Kunstler had a comment concerning draft evaders in granting of amnesty.”
Those were the statements that were made by Mr. Kunstler while this case is pending for trial in the Southern District of Indiana.
Justice Potter Stewart: Made at various times and places, were they?
Mr. Karl J. Stipher: They where to -- some of the statements were made at the meeting at Indiana State University at Terre Haute where the case was pending.
Some of the statements were made in there and they are so indicated in our brief at the Indianapolis Law School in Indianapolis before the Law students.
Other statements were made at Press Conferences held by Mr. Kunstler in Indianapolis.
Others were statements made on the radio concerning this case and the ones that I’ve gone over.
Justice Potter Stewart: There they are all made in public, were they?
Mr. Karl J. Stipher: Oh, yes.
Justice William O. Douglas: And during what period?
Mr. Karl J. Stipher: They were made prior to April 1, 1972 when there was a hearing before Judge Holder to determine whether or not this man should be permitted to represent the defendant.
Justice William O. Douglas: The incident in the prison occurred in December of 1971?
Is that correct or the --
Mr. Karl J. Stipher: August of 1971, 1972, Your Honor.
Justice William O. Douglas: And then when was the charge brought against in the internal judge?
Mr. Karl J. Stipher: December 14, 1972.
Justice William O. Douglas: December 1972, that was the charge and then there are some difference of opinion as to when Mr. Kunstler was retained, isn’t it?
Mr. Karl J. Stipher: Yes.
So, there are some argument on the record, but we’ll stand on a record as we have recited it and the defendants in this case, Banks indicated.
At the hearing under oath that he had retained Mr. Kunstler a month before December 1942, which will be November of 1972, November 1972.
There are some statement in the record as to when he actually filed in his appearance but the evidence we believe will support the idea that Kunstler had been retained by the defendant in November 1972.
Justice Potter Stewart: Before the charge was brought?
Mr. Karl J. Stipher: Right.
Justice Potter Stewart: And these statements, these various statements, remained you say they are all made in public?
Mr. Karl J. Stipher: Yes, in public before the groups that I’ve been indicated to you.
If all the case was pending and prior to the hearing on April 1, 1972 when all these matters were brought out at the hearing and did it --
Justice Potter Stewart: I see, so they are -- and when was the earliest statement they ever made?
I’m just trying to get the --
Mr. Karl J. Stipher: Well, I think the statements were made generally from the first of the year up until the January until April 1972.
Justice Potter Stewart: Now, due to Indiana audiences?
Mr. Karl J. Stipher: Yes, audiences in Indianapolis and in Terre Haute.
After Judge Holder ruled against Kunstler and while the case was pending in the Seventh Circuit on mandamus, Kunstler made the following statements at a speech at Indiana University Law School at Indianapolis.
On a personal level, I was deeply shocked by it because if the pending case involving respondent Banks was the first time in any federal case that I have ever heard a United States District deny an attorney the right to represent the person who desires his services.
It was done in a cold and in criminal manner by a Judge Holder, who in doing so committed a crime.
He violated the Civil Rights of a defendant.
Under any ordinary set of circumstances, if a law was just an honest he should be indicted for what he did.
He violated his oath of office.
He violated his oath as a member of the profession and he violated every tenant of human decency of doing it.
Write a letter to the Judge, write a letter to a newspaper, pick up the Courthouse do anything that will contribute to the issue.
There is a committee here for Arthur Banks and anyone that was any information about that can reach the committee through the law offices Barnhart Nelson.
Then following that there was a taped interview in which Mr. Kunstler made the further remarks about Judge Holder, who was presiding Judge at this District where the trial would be held and has not yet been held.
The Judge here, Judge Holder has said that he is not going to permit me to appear in his Court which means that I can’t represent Arthur Banks which means that I am disbarred as far as this Court is concerned and he has doing it for no good reason whatsoever other than his own in a prejudice against me.
It would seem to me any lawyer worth his or her salt would be writing to the editor, writing to the Bar Association, writing to the Judge, writing to the Court of Appeals to Seventh Circuit and saying “Look here we may or we may not agree with William Kunstler, but that is not the issue before us.
The issue is are we going to rape the Constitution by allowing a Federal Judge to do what the constitution says he should never do and that’s to deprive the defendant of his right to an Attorney of this choice.”
I do not think anyone should respect the law, not certainly as it's practiced in America.
If the law is neither fair nor just because it is manipulated and utilized and in it is own procedures and practices is unfair as well deal in deliberately.
I think into the system, I think the best use is to distrust it, strip it up all of its mysticism, to demonstrate to fill Courtrooms to confront it.
We would thinking nothing peculiar at all about picking Congress or picking a White House, why not pick up to Court?
I think that the only answer in all these systems is confrontation, physical confrontation.
Justice Potter Stewart: Now by the content of those statements you just read, they apparently were made after Mr. Kunstler was denied the right appear for --
Mr. Karl J. Stipher: That is correct, Your Honor.
They were made after --
Justice Potter Stewart: So they couldn’t been the reason for the denial?
Mr. Karl J. Stipher: But I believe that they are relevant pertinent in this case because the action of mandamus that was filed in the Court of Appeal was the original action.
All of this information that I’ve just read to you including the remarks concerning Judge Holder where part of the record.
And in addition to that Your Honor, the findings of Judge Holder not only found with respect to what had happened, what was happening but what was going to happen in the future and Kunstler indicated the night to give the record reference to it, that he intended to make further statements in the future.
Justice William O. Douglas: Well, I suppose Judge Holder’s findings were, his prediction was what will happen to the future if he allowed Mr. Kunstler to represent Mr. Banks not if you denied the right.
Mr. Karl J. Stipher: Well, I think that was further basis for his findings.
I know he has looked at the crystal ball, but what had been done would indicate to him that a further reason for him denying the right to appear with what he was his going to do in the future.
Now after that was done, Banks then filed a habeas corpus proceeding in the same case before another the Federal Judge in our District, Judge Dillon and this case was still pending in the Court of Appeals for the Seventh Circuit involving Holder and Dillon.
Dillon denied the habeas corpus because he felt that it had been made of proper and so forth and so on.
And Kunstler then under took to make these further statement in public about Judge Dillon.
I think it is a frightful thing that has been done to him by the Government of United States, the American Bar Association and the reason he is complaining about that is American Bar Association has filed a amicus brief in the Court of Appeals for the Seventh Circuit.
21 of the so called prestigious Indiana Lawyers who filed against him and I guess I am one of those, a United District Judge by the name of Dillon who has being sought to be impeached because integration decree in Indiana and while I would oppose his impeachment on those grounds, I would whole heartedly support it for what he his done to the black man in Terre Haute.
He has violated his oath of office and he has denied this man the most fundamental of rights.
I am reading from the brief, he has ignored his, Page 9, he has ignored his habeas corpus, he has succeeded installing his case long enough for the government to catch up with Judge Rehnquist in Washington and to put his case in Limbo where he cannot move and those who say to American citizens trust in the system and do adopt alternative methods may some day remember this case along with others when people refused to trust the system.
It is about the worst instance in the career, in my career of some 25 years that I have ever seen Judge Hoffman pales into insignificance when you compare him to Judge Dillon because Judge Hoffman was at least honest.
Judge Dillon is a fraud and I think he has done an enormous to justice to Arthur Banks and he probably has done it because he is trying to avoid the anger of the citizens of Indiana for his integration decree and so he is to decided destroy Arthur Banks in order to get back on the establishment's bandwagon.
It is a very sad and desperate thing I think that a Federal Judge would violate his oath of office in this fashion but I guess it is not unexpected since President of the United States does it regularly.
Well, in this case it is in alliance between the United States Government and the American Bar Association, and the Indiana Bar of what they called prestigious man of the Indiana Bar and the Federal Judges in this District, Judge Holder, Judge Dillon and the others and it is vicious cycle, one feeds in to the other.
It is a criminal conspiracy to subvert the constitution and these men like Dillon and Holder are criminals and it is just too bad that the American people do not recognize who the real criminals are in their midst.
They are not in the terrible prison.
Now, admittedly those statements he made attacking our Federal Judges in the Southern District of Indiana occurred after Judge Holder’s hearing, but keep in mind that this man, his trial has not yet taken place and one of these days there is going to be a trial and I think all these matters should be -- were before the Court of Appeals and should be before this Court in making a determination as to whether or not Mr. Kunstler will be able to represent this man during the trial. Other reasons for denying of course the right to participate in this trial represent have to do with delays.
We’ve covered that in our brief and I won’t bother you that with that.
But at issue here today in addition, to the correctness of Judge Holder’s ruling is the validity of Rule 27 in the Canon of Ethics of the American Bar Association.
Justice Byron R. White: Now, is it your position that or would your position be the same if the Judge had refused to permit a member of the Indiana Bar to represent Mr. Banks?
Mr. Karl J. Stipher: That’s it, Your Honor, I think we’re all to be treated the same oneness.
All I’m saying is that I would stand up with my last gasp of breath --
Justice Byron R. White: Do you think as a matter of -- just as a matter of however a District Judge has a power to eject from his Courtroom an attorney who violates the Canon of Ethics over the objection of his client?
Mr. Karl J. Stipher: Yes, I do Judge and let me say the way --
Justice Byron R. White: And so that the Sixth Amendment right to counsel was conditioned upon the counsel of his choice complying with the Canons of Ethics
Mr. Karl J. Stipher: That is right and we have got cases that support it.
Justice Byron R. White: That case is not the issue.
Mr. Karl J. Stipher: That is -- well that’s one issue and then other issue about these statements whether or not they are in the violation of the Fifth Amendment?
Justice Byron R. White: The Court of Appeals answered that question the other way?
Mr. Karl J. Stipher: Yes, and we think Court of Appeals was wrong and here we think that Court of Appeals was wrong in the Oliver case.
We think that Court of Appeals is wrong to Chase v. Robson.
We think the correct law is the law that was stated by this Court in Sheppard v. Maxwell in which this Court said after all the publicity that was had in that case is.
There the Court says and this is Justice Clark speaking, this Court.
“The Courts must take steps by rule and regulation that will protect their processes from prejudicial anxiety of interferences.
Neither Prosecutors, Counsel for Defense, the accused, witnesses, Court staff, Law Enforcement Officers coming under the jurisdiction court should be permitted to frustrate its function.
Collaboration between counsel and press as to information affecting the fairness a criminal trial is not only subject to regulation, but it is highly sensible and worthy of disciplinary measures.
And then, the Court gets more specific and says “More specifically the Trial Court might well have prescribed extra judicial statements by any lawyer, party witnesses or court official which devotes prejudicial manner such as review.
Justice Byron R. White: It may be so but it didn’t in -- that case didn’t suggest that if a lawyer violated an order against making statements about a case, that the lawyer could be disqualified from representing the defendant.
Mr. Karl J. Stipher: I think what the case means to me and you will have to write on it to see what it means, but I’ll tell you what it means to me Judge.
It means to me that this Court was saying in that case that the District Courts have got the right to adopt a general rule which will set down the guidelines for the law -- for the conduct of the lawyer.
Justice Thurgood Marshall: What did Judge Holder do other than to say that this man couldn’t represent him?
Did he issue any order of any kind?
Mr. Karl J. Stipher: At a hearing Judge to determine whether or not he had violated Rule 27.
Justice Thurgood Marshall: Well, you say that Sheppard says you had protect the crowd, prevent publicity etcetera.
Did he issue any order about that?
Mr. Karl J. Stipher: No, just because our rule does that?
Our rule 27, very specifically in our brief on page --
Justice Thurgood Marshall: But did he at anytime say anything to Mr. Kunstler other than you can’t come in?
Mr. Karl J. Stipher: He had a hearing Judge and as a result of this hearing --
Justice Thurgood Marshall: I know you had a hearing --
Mr. Karl J. Stipher: Right.
Justice Thurgood Marshall: It's concluded from the hearing that the best way to stop this is to kept this man up.
Mr. Karl J. Stipher: No, there were no other orders issued with respect to this.
Justice Thurgood Marshall: Well, he could have, couldn’t it he?
Mr. Karl J. Stipher: Yes, Your Honor but--
Justice Thurgood Marshall: But he didn't.
Mr. Karl J. Stipher: He did not.
Justice Thurgood Marshall: Look at this way and while I interrupted with you, so far as you know is he still Mr. Banks choice, as his lawyer?
Mr. Karl J. Stipher: Judge, I don’t know.
You’ll have to ask the lawyer I suppose --
Justice Thurgood Marshall: Well, do you know if there is any change in the situation?
Mr. Karl J. Stipher: I do not --
Justice Thurgood Marshall: So far as you he is still there?
Mr. Karl J. Stipher: Right.
Justice Thurgood Marshall: Now, what happens to the Constitution which says that he is entitled to the lawyer of his choice?
Mr. Karl J. Stipher: Well, I do not think the Constitution has the words of his choice Judge.
I think the constitutional provision I have before --
Justice Thurgood Marshall: You think you find some decisions that are --
Mr. Karl J. Stipher: Alright maybe so.
But all I am saying is that we have covered that in our brief where we say that you are not entitled, you do not have a constitutional right to a lawyer of your choice.
You have a right to a lawyer alright, but if the lawyer violates the Canons of Ethics as was done in the State v. Kevnon case, a New Jersey case, he maybe removed and that -- it had to do with Mr. Avery Bailey because of the antics he had engaged in that case and we’ve covered that in the brief.
I think my position on that is --
Justice Thurgood Marshall: Well, I don’t -- that binds me, the decision in New Jersey binds me?
Mr. Karl J. Stipher: Well, I think it is a very good decision and besides that Judge, I think we have other cases that we’ve cited in here.
Justice Thurgood Marshall: We also had the Seventh Circuit?
Mr. Karl J. Stipher: In this case?
Justice Thurgood Marshall: Yes.
Mr. Karl J. Stipher: Which I think is wrong.
The reason I think its wrong is that it went off mainly on the question of waiver.
And then, it also applied in erroneous test that the statements that are made have to present a clear and present danger to prejudice of a fair trial and in administration of justice.
And it is our position that that is not correct test at all.
The correct test was supplied in the Severino case and other decisions is that there must be a reasonable likely and that suggests it was contained in the rules of the American Bar Association with which went to through Rearden Committee which went to the Judicial Conference of this Court and were approved by the Federal Judges around United States.
Justice Thurgood Marshall: Is that has been approved by this Court?
Mr. Karl J. Stipher: The rules well, only insofar as the Judicial Conference had approved.
Justice Thurgood Marshall: It's persuasive, that is all, right?
Mr. Karl J. Stipher: I want to make my position clear.
It is our position here that under on the Sheppard case, this Court said after they reviewed all the evidence in that case, “The Courts must, they didn’t say should, must make rules to cover the situation.”
Then they went on to specify what kind of rules they are talking about.
Those that have to do with commenting on the merits of the case it is over.
Unknown Speaker: (Inaudible)
Mr. Karl J. Stipher: And we made our rule -- it is the same rule made by Federal District Court in the United States.
And it was result of the study by the American Bar Association after 20 minutes of the a 20 -- 20 months of the Rearden Committee and after a study by the Judicial Conference of this Court and approval by the Judicial Conference and this rule, I think identically is enforced every District Court of the United States.
Unknown Speaker: (Inaudible)
Mr. Karl J. Stipher: Alright, all I’m saying is what were asking you to do here today is to tell these Federal District Judges, what about this rule?
And as I say and I do not, I’m sorry to repeat these things started in this Court under the Sheppard case.
This Court said “You must adopt rules.”
They did and here is this rule and as I said it's substantive to say in very federal district court in United States, and if it's in violation of the Sixth Amendment about the -- which were or rather the First Amendment, I think this Court ought to say so.
And if it isn't violation of the First Amendment so that there is some guidance that will be given to these Federal Judges throughout the United States that are all vitally interested in this question.
Justice Potter Stewart: Mr. Stipher in response to a question from my brother White I understood you to say that is wholly insignificant and irrelevant in this case that Mr. Kunstler was an out-of-state lawyer, you’d be making precisely the same argument, just as strong if you were in Indiana --
Mr. Karl J. Stipher: I would absolutely.
Justice Potter Stewart: Thank you.
Justice William O. Douglas: Mr. Banks has since been released by some other Judge, hasn’t he?
Mr. Karl J. Stipher: They would be in a much better position to tell you that, but it's my understanding that he has been -- he was transferred from the Terre Haute prison to the Federal Penitentiary in Sandstone, Minnesota and there while Mr. Kunstler was out there in the Wounded Knee case, he made a presentation to a Federal Judge and had this -- got this man released on bond on this particular charge but that a mandamus action has been filed.
Justice William O. Douglas: On this particular charge?
Mr. Karl J. Stipher: Yes.
Justice William O. Douglas: The very charge?
Mr. Karl J. Stipher: Yes.
Justice William O. Douglas: Against Holder?
Mr. Karl J. Stipher: Yes and no trial of course has been held, but that mandamus action has been filed by the Government before the Court of Appeals out there to contest the validity of this District ruling.
Justice William H. Rehnquist: But that's just an action enlarging him on bail?
Mr. Karl J. Stipher: Well, I can;t give you all the details Justice Rehnquist because I’d rather get it from them but that is my general understanding, that the man is out of there, as matter of fact I think he is here today.
What the details are are on that, I can’t tell you, you have to ask him.
I’ll save five minutes for rebuttal.
Justice William O. Douglas: Mr. Stavis it is just about time to recess for luncheon, so why don't we start your argument at 1 o'clock.
Argument of Morton Stavis
Mr. Morton Stavis: Thank you very much Your Honor.
Justice William O. Douglas: Mr. Stavis?
Mr. Morton Stavis: Mr. Justice Douglas, may it please the Court.
In the answer I’d like to settle a few of the questions that arose in the course of my adversary’s argument.
Answer to the question of Mr. Justices Rehnquist and Brennan, Banks is here, seated in front row.
He was released on bail by United States District Court in Minnesota in a habeas corpus proceeding.
We start with questions as to incarceration based upon his prior conviction as well as certain questions which dealt with the question of his present indictment.
Justice William O. Douglas: The underlying question Federal protection.
Mr. Morton Stavis: That is right, sir.
That Mr. Kunstler was his attorney in that matter and in view of the fact the Government of United States brought a habeas, brought a mandamus before the Eighth Circuit.
Judge Lord in that case, questioned Mr. Kunstler to represent him as a respondent from the mandamus proceeding.
Mr. Kunstler is now representing Judge Lord before the Eight Circuit and an order has been handed down by the Eight Circuit on the date of April 19, 1974, requiring filing of briefs and setting a hearing there on June 10, 1974 at which you will get -- at which Mr. Kunstler expects to represent Judge Lord.
Justice Potter Stewart: What is the issue without going into detail?
Mr. Morton Stavis: The issue was among other things with respect to the prior incarcerations, Mr. Banks had been kept in solitary confinement for approximately 18 months.
Justice Potter Stewart: But the issue has not in a deal with Mr. Kunstler representation there, hasn’t he?
Mr. Morton Stavis: None whatsoever.
Justice William J. Brennan: His involvement Mr. Stavis has no bearing on the issue we haven't decided here?
Mr. Morton Stavis: I don’t believe -- I don’t believe they do accepting with respect to one question.
It was also as to which my adversary indicated they didn’t know the answer and that is that Mr. Kunstler indubitably represents Mr. Banks.
I spoke to Mr. Banks during the luncheon recess, but I didn’t really have to.
He has said that the last thing in the world that he intends to do is to alter his relationship with Mr. Kunstler the man to whom he now owes his freedom.
I’d like now to turn to some of the questions that Mr. Justice Stewart asked and some of the rather confusing answers that I thought have been given in response to those questions.
Mr. Kunstler was not retained until February 9, 1973.
That was the first time that was Mr. Kunstler ever meet Mr. Banks and whatever the record may show as to prior statements by Mr. Banks that he had retained Mr. Bloomberg to whom he paid a fee and also Mr. Kunstler in some secondary capacity to Mr. Bloomberg.
The fact of the matter is the first time Mr. Kunstler met Mr. Banks and accepted to retain, it was on February 9.
Secondly, there was not a continuous range of statements from January 1st up until April 1, 1973.
All of the statements which appeared in the record, all of them are attached to our brief and they consist of the following.
Number one, an interview sought out by a newspaper reporter in Indianapolis, Indiana had a cocktail party which Mr. Kunstler attended, the result of which was an item appearing in the Indianapolis Star on February 10 on Page 31.
There was not a shred of proof that that newspaper was distributed in Terre Haute, Indiana, 95 miles away and moreover and we think it's of particular important, Terre Haute has separate jury rules from the Indianapolis.
Justice Potter Stewart: They are different Districts, Judicial Districts?
Mr. Morton Stavis: Different divisions within Districts —
Justice Potter Stewart: Different divisions of the same District?
Mr. Morton Stavis: That is right and separate jury laws and we refer to that if we cited enough --
Justice Potter Stewart: You’re not talking about Exhibit A on Page 1a of your Appendix to your brief?
Mr. Morton Stavis: That’s right.
That’s the statement.
That’s the interview at the cocktail party.
The second item is a press release issued at the organization in New York on the same day, February 9 with no proof whatsoever that it ever got anywhere near Terre Haute, Indiana.
The third item is a one minute statement by a TV reporter, who does not report accurately to call Mr. Kunstler and which refers to a speech that Mr. Kunstler made again on February 9.
The last item was an item which appears on Time Magazine on the date of February 26, 1973, which contains a one sentence harmless statement by Mr. Kunstler.
It has a whole paragraph of a statement by Mr. Carlson, the Director of the Federal Bureau of Prisons within the Department Justice stating the Government’s view of the case against Arthur Banks.
Now, it’s all there is.
There had not been statements from January 1 to April 1.
There were these particular statements and none other.
Justice Potter Stewart: Exhibit B was published where?
Mr. Morton Stavis: I’m sorry sir --
Justice Potter Stewart: It's alright.
Exhibit B on Page 2A?
Mr. Morton Stavis: Yes.
Justice Potter Stewart: Where was that published?
Mr. Morton Stavis: There’s no proof as to where it was published.
It was issued by the New York -- by a committee having its office in New York.
It was a fund raising committee on behalf of Arthur Banks.
Justice Potter Stewart: There is no --
Mr. Morton Stavis: There is no proof whatsoever in this record that a copy of this in ever got into Terre Haute, Indiana or that any portion of this ever got to a newspaper which is published in Terre Haute Indiana.
Justice Potter Stewart: How do they get in the record?
Mr. Morton Stavis: The Judge said “I’ve got this and hand it to the Government counsel.
Judge never explained how he got it.
Now you were also told by my adversary, without reference to the record, that Mr. Kunstler threatened or promised to continue to make statements.
We are here to find that in the record.
There’s nothing of that sort in the record and that of course gets us to the question which Mr. Justice Marshall asks which is, “Did the Judge issue any other order, other than debarring Mr. Kunstler” and the answer is “no”.
The hearing of April 1 consisted of the introduction of these items, mostly furnished by the Judge to counsel for the Government and then the Judge put the axe down and said to Banks, “You can’t have Kunstler as your lawyer.”
At no time did the Judge said, “I want you to know Mr. Kunstler that is the rule in this District and if you’re going to come in this court, you are not going to have abide by those rules.”
In fact, there was a discussion on the record with respect to the law of the Seventh Circuit at that time as expounded in the case of Chase against Robson in which my colleague for the Cunningham was counsel in that case and it was clearly enunciated by the Seventh Circuit that a rule prescribing speech by counsel could not be adopted unless and until there had been a finding that such a rule was necessary in that case in order avoid interfering with the processes of the Court.
Now, Mr. Kunstler said to the Judge, that as I understand it is the rule in the Circuit and said he felt bound by Chase against Robson and he indicated that if the Judge felt, made a finding, then at least the parties could then proceed to litigate at the matter in the Seventh Circuit which is exactly what they had done in Chase against Robson.
There is not anything in the record from which it could be concluded that Mr. Kunstler said, I’m going to continue to make those statements even if you impose such a prohibition based upon a finding” or even if the Judge had said, “Well, the Seventh Circuit said you could contrary not withstanding” I say that you shall not make statements.
Nothing in the record to indicate that Mr. Kunstler ever would have violated such an order.
Now, we --
Justice Potter Stewart: Further there was a rule 27, is that number of the rule?
Mr. Morton Stavis: Yes, there was a rule 27.
Justice Potter Stewart: And we were told earlier by counsel that that rule has a counterpart in every District Court?
Mr. Morton Stavis: I believe that to be the case.
Justice Potter Stewart: In the contrary --
Mr. Morton Stavis: I believe that’s to be the case.
Justice Potter Stewart: And presumably a lawyer whose even if he hadn’t practice before in this District Court would know about that rule, wouldn’t he?
Mr. Morton Stavis: Yes!
The lawyer practicing in the Seventh Circuit would also would know that the Seventh Circuit dealt with precisely that problem and make its adjudication which was in fact binding on all of the District Courts in the Seventh Circuit that the implementation or application of such a rule would have to await a finding by the Court that it was necessary in the particular case.
Now also I point out Your Honor that the District Court had adopted not only Rule 27 but also Rule 29 which we printed in our own brief because Rule 29 is the Rule which provides in fact for a mechanism and a procedure for the Court making a finding in a particular case that a prescription is necessary, and then tailoring the prescription to the needs of that case.
Justice William J. Brennan: Mr. Stavis, just submission that Rule 27 is not operative without this advanced finding in the Seventh Circuit?
Mr. Morton Stavis: That is our submission and that was the finding in holding of the Seventh Circuit both in Chase against Robson and again repeated by its holding in this particular case.
Justice Potter Stewart: You referred to a colloquy between I think I understood to this that you referred to a colloquy between Mr. Kunstler and judge Holder about that Seventh Circuit case --
Mr. Morton Stavis: Oh, yes.
Justice Potter Stewart: That’s in your brief, somewhere I think?
Mr. Morton Stavis: Oh, yes.
Justice Potter Stewart: Find it out, I remember reading it when I have think about that --
Mr. Morton Stavis: But I think you will find it on page 19.
Justice Potter Stewart: Thank you.
Mr. Morton Stavis: It starts from the bottom of Page 18.
There was actually two colloquies on this.
One of them is set forth beginning at the bottom of Page 18 and going over to the top on Page 19 and the other appears in the footnote on Page 19.
Justice Potter Stewart: Thank you.
Mr. Morton Stavis: Now, hang up with those questions, I would like at this point to turn, turn other aspect of our argument and that is that two days after the -- Mr. Banks filed this petition for writ of mandamus with the Seventh Circuit.
And one day after Judge Holder, filed a responsive pleading to that, he filed it actually a day after the mandamus was filed.
The Seventh Circuit ordered that he file with it the transcript of the entire proceeding which is actually had been held before Judge Holder.
That was done and it was based upon a study of that transcript, the Seventh Circuit decided this particular case.
One of the difficulties that I think in fact been had in this case is the petitioner’s brief and its argument this morning, completely ignores the existence of that transcript because it is only there that one begins to find out the reality of what this case was about.
And it’s because of our conviction of the decisive nature of the content of that transcript that we called to be Xeroxed filed with clerk of the Court deliberately to each of the Justices a copy of that transcript.
Because it’s to that particular point, it is at that particular point that you begin to see that what the case involved was far beyond different from the statements of my adversary as to this innumerable statements which finally boil down to a series of statements on February 9th.
The issue which emerged in that particular transcript was there was an extraordinary colloquy between Judge Holder and Mr. Kunstler.
Judge Holder forced Mr. Kunstler to disclose his views on number of matters having nothing to do with this particular case, matters having to do with the draft, amnesty and questions of that sort.
Having forced to disclosure of these views in open court, Judge Holder then turned to Mr. Banks and said, do you want a monkey on your back?”
The monkey being, Judge Holder’s estimate of Mr. Kunstler’s views and a rather eloquent statements which appears in the transcript.
Mr. Banks made absolutely clear that he carried many monkeys on his back before.
That he knew exactly what Mr. Kunstler’s views were and he wished him to be his lawyer.
Following that, Judge Holder decided that Mr. Banks was not to have Mr. Kunstler as his lawyer, but rather another present selected by Judge Holder whom he described as having proclivities and operations with which I agree.
Banks said, he was going to stand mute.
He wanted the lawyer of his choice.
It is pretty obvious to us, the lawyer of the defendant’s choice is not a lawyer of the Judges’ choice and the fact that the Judge may find another lawyer in the Indianapolis or Terre Haute, whom he would like to have represent Mr. Banks can’t be allowed to pass in the face of the Sixth Amendment Right to Counsel.
Justice William J. Brennan: Excuse me Mr. Stavis, does the record show anything of the practice either in Judge Holder’s Court or generally in that District Court of admission to the Attorney’s pro hac vice?
Mr. Morton Stavis: There is nothing in the record with respect to that.
Although the rule provides for routine admission pro hac vice.
That rule is quoted in our brief and provides for routine admission.
Unknown Speaker: (Inaudible)
Mr. Morton Stavis: I’m sorry --
Justice William H. Rehnquist: Do you have the Page citation?
Mr. Morton Stavis: I think it’s 45.
Justice William J. Brennan: It's that the footnote, isn’t it?
Justice Potter Stewart: I think it is in footnote on Page 45?
Mr. Morton Stavis: That is right.
Those are in the Page 46, it’s the last portion of C.
An attorney admitted to practice in many of the United States Court may on application to this Court be granted leave to appear on specific action and there's nothing in the record though which suggests any practice with respect to this matter.
Now, it seems to us that based upon this record, and of course that is what the Seventh Circuit looked at, when they [Attempt to Laughter] made their decision and they say that, “In view of the Court, Judge Holder’s indication that he claimed concern for Mr. Banks’ interest, that there was no basis for overriding Mr. Banks’ expression of desire that he be represented by counsel of his choice, regardless of Judge Holder’s disagreement with his views.”
Of course, none of that is indicated in the brief or the argument of our adversary, but it’s fully and entirely and completely laid out in our brief and we had no choice but to file the extended and detailed statements of effect in order that the Court would get the entire picture on this case.
Having made it clear on the record why Mr. Banks was denied Mr. Kunstler’s services, the following day Judge Holder entered what he called “an entry,” in which he purported to give reasons why he denied Mr. Banks' the right to have Kunstler as his counsel.
He gave a series of reasons.
One is the possibilities of delay in the trial with actually no foundation for it whatsoever.
There was no indication whatsoever that had this case been heard in May as had been specified that Mr. Kunstler, May of 1973 that is, Mr. Kunstler as his lawyer, and it was clear on the record on April 1st that Mr. Barnhart was then full co-counsel with Mr. Kunstler, actually nothing to indicate that Mr. Kunstler would not have proceeded to try that case en banc or if for some reason the counsel were not available, the case might not have proceeded with Mr. Barnhart alone, particularly if Judge Holder said “I’ll let you in, but if your not here the case is going ahead anyhow,” absolutely nothing to support any indication of delay.
Justice Byron R. White: What do you think the issue here is at stake?
Mr. Morton Stavis: It is a simple issue of the Sixth Amendment Right to Counsel.
I think that is the whole case.
Justice Byron R. White: What -- we're reviewing the judgment of the Court of Appeals --
Mr. Morton Stavis: That is right.
The judgment of Court of Appeal was Sixth Amendment Right to Counsel transcended all the other matters in this case and they direct it on this particular record and that Mr. Banks --
Justice Byron R. White: I wondered you think we have a -- if it's the factual question then we're just going to be reassessing the Court of Appeals that might be one matter, but if we have an issue of law here with some kind, that might be another -- do you think there's an issue of law here?
Mr. Morton Stavis: Well, one of the issues of law I felt though it was passingly conceded this morning, namely the -- any suggestion that there was anymore of a court with respect to out of District Counsel then there was with respect in this --
Justice Byron R. White: Let me ask you this, is there any -- is there a contention in the case that a Judge must permit a lawyer to continue to represent a client if the lawyer stood up in open Court and said I know the rules of the Court, I can see their validity, but I have no intention of following them.
Is that an issue here?
Mr. Morton Stavis: No, I don’t think that’s an issue here because it seems to me that there isn't any question that the court's reserve and have the power to discipline counsel for violation of rules.
Justice Byron R. White: And then despite the Sixth Amendment --
Mr. Morton Stavis: Well, I suppose the Sixth Amendment --
Justice Byron R. White: That’s my question, is it not?
Mr. Morton Stavis: Yes, I understand.
Justice Byron R. White: The Court gets up or the Attorney gets up and says you told me to do something I'm not going to do it here.
I know the rule of Court, I’m not going to obey it.
Would the Sixth Amendment require the Court to permit him to continue?
Mr. Morton Stavis: That might depend because the Court might decide that the gar election by the lawyer in that particular case did not merit immediate suspension.
Justice Byron R. White: But there could be circumstances that were, I suppose were -- would override the Sixth Amendment Right to Counsel?
Mr. Morton Stavis: It could be to this extent, Sixth Amendment is your right to counsel, it doesn’t give you right that counsel.
Justice Byron R. White: That is right.
Mr. Morton Stavis: Well, I suppose --
Justice William J. Brennan: Well, I suppose getting back to Justice White’s original question what's before us?
Now, what’s before us is an order of the Court of Appeals granting mandamus.
Mr. Morton Stavis: That is right.
Justice William J. Brennan: And if I read this correctly and I have not read the application for the writ, the only question submitted was alleged prejudicial publicity as the basis upon which of the order of the District Court rested and that ought to suffice.
And if I read the short opinion of the Court of Appeals, it says that in some way we believe that defendant Banks has waived any right to object to attorney Kunstler’s pre trial publicity as denying him the Sixth Amendment Right to a fair and an impartial of jury.
Mr. Morton Stavis: That’s right.
Justice William J. Brennan: And accordingly the mandamus is granted.
Well, that is rather now issue that would the --
Mr. Morton Stavis: And we’ve never thought.
Justice William J. Brennan: (Voice Overlap) doesn’t it?
Mr. Morton Stavis: That’s right and we never --
Justice William J. Brennan: Do we have to get into all these far reaching questions that appearing --
Justice Byron R. White: It does not have to.
On that approach the rules of court aren't implicated at all?
Mr. Morton Stavis: I agree and we do not believe that this Court need go any further there.
A simple determination that on this record as found by the Seventh Circuit --
Justice Byron R. White: Mandamus properly was granted?
Mr. Morton Stavis: That is right and Banks was entitled to counsel of his choice.
Justice Byron R. White: Unless I think it the Judge or the petitioner here would be entitled to support his order and to defend the mandamus here now, on any ground that would sustain the judgment of the District Court?
Mr. Morton Stavis: That I don’t think he can.
I think that the record is made by the --
Justice William J. Brennan: Ordinarily by the time the case gets here, it maybe that the loser below can defend it here on other grounds, the order before us to review.
But we don’t go all the way back to the original order and apply that principle.
Mr. Morton Stavis: I don't think there is any question that the decision here can be most limited in nature.
Limited to the order of the Seventh Circuit which was on this particular record, Mr. Banks was entitled to have counsel of his choice and if there was any question in the Judge's mind that counsels conduct might have adversely effected the Banks’ chance, that Banks had waived it and the --
Justice Byron R. White: Were you in the before Seventh Circuit?
Mr. Morton Stavis: No, I was not.
It was not orally argued.
Justice Byron R. White: Well, how about the petition for rehearing?
Mr. Morton Stavis: It was not orally argued.
Justice Byron R. White: I know but what was presented in the --
Mr. Morton Stavis: Well, in the petition for rehearing, Judge Holder tried to blatantly issue.
Justice Byron R. White: And what other issue, did he put in the interest of the Government interfere --
Mr. Morton Stavis: That is right.
He got into this whole question of Rule 27.
Justice William J. Brennan: But did he -- was the issue ever presented to the Court of Appeals that Judge Holder was entitled to disqualify this attorney for violation of outstanding court rules?
Mr. Morton Stavis: Yes, I think that the issue that was sought to be presented by the petitioner for rehearing.
Justice Byron R. White: I see.
Mr. Morton Stavis: And which the court --
Justice Byron R. White: And the Court said, it’s too late?
Mr. Morton Stavis: No.
Justice Byron R. White: What did it say?
Mr. Morton Stavis: Said, it hadn’t been brought up before, but its not too late, we‘ll take a look at it anyhow.
And looking at that question, and looking at that question they then said, repeated their basic approach that they had enunciated in Chase against Robson.
Justice Byron R. White: So that we do have here the before us the issue, a little broader issue?
Mr. Morton Stavis: Yes.
But coming from the petition for rehearing which was --
Justice Byron R. White: Which they actually entertained and decided?
Mr. Morton Stavis: That’s right.
That’s right and may that will be.
Justice William J. Brennan: May I suggest they have some truthfully (Inaudible) I’m looking at Page 46, in the last paragraph in which the Court of Appeals said, in considering the broader issue we conclude that before a Trial Court may properly limit defendant's right to a chosen counsel, there must be sufficiently supported and specific findings of fact that the conduct of the defendant’s attorney creates a serious and eminent threat of “significant prejudice to the defendant himself” which was the precisely the issue considered in the original opinion or of both disruption of the orderly processes of justice and reasonable under the circumstances of a particular case.
So, if they treated with another issue besides that of prejudice the defendant himself that was limited for the second disruption of the orderly process.
Mr. Morton Stavis: That is correct.
Justice Byron R. White: I suppose then we -- the validity of that standard and the factual underpinnings for -- at least are here?
Mr. Morton Stavis: It could be, it could be but candidly as we stated in our brief, we do not believe that the Court need to go to that point in deciding this case.
For the following reason, among others, this would be a very inappropriate case we would think to deal with the effort to make rather radical, broad and sweeping changes in the whole question about the relationships between members of the bar and the media.
The sort of problems that were originally suggested in Sheppard against Maxwell that were covered in the Rearden Committee report and again in the Kaufman Committee Report and while it may very well be that these rules have been adopted in all District Courts as Mr. Justice Marshall points out, they’ve never been passed on by this Court.
That would effect a most significant change in the history of a 150 years that goes back to the impeachment trial of Judge Peck and a series of cases determined by this Court following that Craig against Harney, Bridges against California, and right down in the last month when it decided the case of Ethan against Tulsa.
I simply suggest that if the Court is to enter into a consideration of the extraordinarily complicated First Amendment issues that were involved there, it ought to do so in a case which is so related with Sixth Amendment questions.
Because nobody had ever direct that any procedure that a Court might employ to control expressions by counsel will be enforced by any means other than the discipline of counsel.
And to have that issue come before this Court for the very first time in a case which is so easily determined on the issue of right of counsel, I would suggest would be most unfortunate.
Justice Potter Stewart: Do you suppose a defendant in a Federal case in a State Court in Ohio has a constitutional right to have a lawyer who is a member of the Bar of California, only?
Mr. Morton Stavis: But I would think in the question in the State Courts would be quite different or might be quite different than the question in the Federal Courts.
And I don’t think the Court in deciding this case in respect to its supervisory power of the Federal Courts would have to adjudicate any question with respect to State Courts.
Justice William J. Brennan: In another words, the Bailey decision of the Jersey Supreme Court maybe right.
Mr. Morton Stavis: It could be wrong on the --
Justice Potter Stewart: In the Federal Court.
Mr. Morton Stavis: But the Bergamo decision at the Third Circuit, Sakura’s decision in the Second Circuit would indicate that at least in the Federal system, particularly because of the unitary nature of Federal system --
Justice Potter Stewart: And this is a prosecution not of course under Federal statute of --
Mr. Morton Stavis: In a Federal Court--
Justice Potter Stewart: In the Federal Court and Mr. Kunstler is always a member of the Bar of this Court?
Mr. Morton Stavis: A Member of the Bar of this Court, a member of Bar Seventh Circuit and it had a certain absurdity about it.
Mr. Kunstler can represent Mr. Banks.
He might have argued the case here before you today were it not for the fact that he has been so overwhelmed and wounded knees that he asked Father Cunningham and myself to take over this responsibility for him.
Justice Byron R. White: Mr. Stavis is the petition for rehearing in the court of -- in the court below in a record?
Mr. Morton Stavis: The petition for rehearing.
Yes, I believe it is.
Justice Byron R. White: The order?
Mr. Morton Stavis: Oh, the order was printed in the petitioner for writ of --
Justice Byron R. White: But the record there is a --
Mr. Morton Stavis: There is a record.
There is a record.
Justice Potter Stewart: The original record was logged.
Mr. Morton Stavis: Yes, the original record that.
Thank you very much.
Rebuttal of Karl J. Stipher
Mr. Karl J. Stipher: May it please the Court.
I think I have got five minutes, but I would like to urge you if I may to pass on all these questions that had been raised.
Rule 27 --
Justice William J. Brennan: Lawyers come here all the time and ask this or ask on all the broad questions of the universe.
We’d never do anything to (Inaudible)
Mr. Karl J. Stipher: But in this case we do have this Rule 27 and it has quite a history to it and as I mentioned before it was set down in the Sheppard case that the Courts ought to adopt the Rules.
Rule 27 is now before this Court and mainly the Court did not permits Mr. Kunstler to come in because he felt he had violated Rule 27.
Justice Byron R. White: Did you -- I don’t see that the Court of Appeal has said or even held that it is proper improper to disqualify attorney for violating Rule 27?
Mr. Karl J. Stipher: Well --
Justice Byron R. White: Was that a reason given by (Voice Overlap) --
Mr. Karl J. Stipher: That was part of the finding, parts of his findings that Kunstler had violated Rule 1F which incorporates the Canons of Ethics of the American Bar and Rule 27.
Justice Byron R. White: But that doesn’t seem to be the issue that the Court of Appeals thought was presented to them?
Mr. Karl J. Stipher: Well, we thought that the Court of Appeals tried to dodge the issues in the case to be very frank and tried to put the first opinion as they did purely on the matter of waiver.
And when we filed our petition for rehearing we raised these other questions and then they saw fit to find us -- to file a supplemental opinion in which they spoke about it.
Justice Byron R. White: And they still didn’t face up the issue you -- that you say you are really representing?
Mr. Karl J. Stipher: Well, I think not, but all I’m saying is that we believe the issue was in the case and they dodged it and I think, it is in the record in this case, and I think the two important constitutional questions here about violation of the Sixth Amendment or whether you're entitled to a lawyer of your own choice by Sixth Amendment in violation of the First Amendment are involved in this case and I would ho --
Justice William J. Brennan: Let me go Mr. Stipher with the last paragraphs of the opinion on the rehearing.
This goes for the disruption of the orderly processes of the justice and so forth.
Our independent review of the record reveals that the hearing did not include this broader issue within its focus.
The evidence with respect to the statements which could be deemed improper will not support such a conclusion.
Mr. Karl J. Stipher: Well, we disagree with Court of Appeals on that.
We think when you look at the record in this case that you’ll find that the findings are supported by the evidence and that the issues that we talked about are involved.
Justice Byron R. White: Now, if we -- I suppose to -- we must disagree with them on this record than to reverse?
Mr. Karl J. Stipher: I think you’re going to have to look at the record to see whether the questions that we raised are presented by the record.
The only other thing I would like to suggest is with respect to the whole question here that we are talking about generally about the lawyer and what his function is and his obligation to me dealt with the ethical requirements of the profession.
I call your attention to the -- a quote from Frankfurter's opinion in Ray Sawyer when he sought to sum up this whole situation and said, “Certainly Courts are not and cannot be immune from criticism and lawyers of course may indulge in criticism.
Indeed they’re under special responsibility do exercise fearlessness in doing so.
But when a lawyer goes before a public gathering and fiercely charges that the trial in which is a participant is unfair that the judge lacks integrity, the circumstances under which he speaks now only sharpen what he says but he imports to his attack inflaming and warping significance.”
He says that the very Courtroom in which he walks to plead his cases a travesty.
That the procedures and reviews established to protect his client from such conduct to a sham.
No matter how narrowly conceive this rule maybe has been betrayed by a lawyer who has engaged in kind of conduct here found by the Hawaiian Court.
Justice Harry A. Blackmun: Was that the prevailing opinion Mr. Stipher?
Mr. Karl J. Stipher: No, it was a dissenting opinion.
Certainly this Court, the Supreme Tribunal charged with maintaining the rule of law should be the last place in which these attacks on the fairness and integrity of a Judge and a conduct should find constitutional sanction.
Justice William O. Douglas: Thank you gentlemen.
The case is submitted.