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October 11, 1956

Dorsey K. OFFUTT

The opinion of the court was delivered by: WILKIN

This cause has had an extended history in the courts. It originated in the trial of the case of United States v. Peckham, Criminal No. 579-52 in this Court. 105 F.Supp. 775. At the conclusion of that trial, the presiding judge cited the defendant here, Offutt, who had served as trial counsel for Peckham, for contempt of court, and filed twelve separate charges based on Offutt's conduct during the trial. The Court found the respondent guilty of all the charges, and ordered him committed for ten days to the custody of the United States Marshal.

The Court of Appeals affirmed the trial judge as to four of the twelve findings of contempt and reduced the punishment to commitment for a period of 48 hours. Offutt v. United States, 1953, 93 U.S.App.D.C. 148, 208 F.2d 842. On appeal, the Supreme Court, under the authority of Cooke v. United States, 1925, 267 U.S. 517, 45 S. Ct. 390, 69 L. Ed. 767, and in the exercise of the Court's supervisory authority over the administration of criminal justice in the federal courts, held that the charges should be tried before a judge other than the one before whom the contempt was alleged to have originally arisen. Offutt v. United States, 1954, 348 U.S. 11, 75 S. Ct. 11, 99 L. Ed. 11.

 In compliance with that decision, the United States Attorney filed in this court an application for an order to the defendant herein to show cause why he should not be adjudged in criminal contempt. In re Dorsey K. Offutt, Miscellaneous No. 3-55. Subsequently, a hearing was held before another judge, in accordance with the mandate of the United States Supreme Court, on the charges contained in the order to show cause (which were identical with the charges which had previously been affirmed by the Court of Appeals). Respondent was then found guilty on two of the four charges.

 The case was again appealed. It should be noted that while on appeal, the United States was made a party plaintiff by order of the Court of Appeals, and the respondent was denominated 'defendant.' That court then reversed and remanded the cause to the District Court as a result of the failure of the trial judge to receive evidence outside of the record, in mitigation or exculpation of the acts of the defendant. Offutt v. United States, D.C.Cir.1956, 232 F.2d 69.

 Defendant appealed the action of the Court of Appeals, however, and the United States Supreme Court denied certiorari on June 11, 1956. Offutt v. United States, 351 U.S. 988, 76 S. Ct. 1049. A petition for rehearing of that action has been overruled.

 'Summary of Evidence

 This case came on for trial on two of the four charges presented in the hearing on the rule to show cause. They were I and III.

 'I. On numerous occasions, he made insolent, insulting and offensive remarks to the court, and was guilty of gross discourtesy to the court. * * *

 'III. On several occasions, he asked of witnesses questions that were highly prejudicial to the witness and for which there was no foundation. * * *'

 Counsel for the plaintiff, in support of the two charges, offered in evidence and read excerpts from the transcript of the Peckham trial. Plaintiff then rested.

 Counsel for defendant, after an opening statement, called eleven witnesses and proffered other witnesses for cross examination whose testimony would have been cumulative. The defendant then rested.

 Counsel for the plaintiff then called two rebuttal witnesses who had served as jurors in the Peckham trial, and proffered two more witnesses for cross examination whose testimony was said to be cumulative.

 The witnesses called by the defendant were lawyers who had been present in court during part or all of the Peckham trial. They testified as to conduct of the judge and the attorney for the defendant during that trial. They detailed statements and conduct of the trial judge which they thought had provoked the challenged acts and statements of the defendant in this case. They testified that in their opinion the defendant had been respectful and proper. On cross examination some of them admitted that the defendant's conduct at times had 'not been exemplary,' and that he had been 'persistent,' but they thought the conduct of the trial judge caused the acts of counsel. One witness referred to the altercations between judge and counsel as a 'conflict of personalities.' They also said that Offutt had consulted them about the case and they had advised him that it would be necessary for him to state for the record the grounds for his objections to conduct of the judge, and Offutt himself testified that that was why he made statements in open court regarding the judge.

 The two witnesses called in rebuttal said that Offutt had disobeyed orders and directions of the judge, and that in their opinion such conduct was the occasion of the apparent friction between judge and counsel. They admitted that at times the judge had shown anger by facial expression, tone of voice and gesticulations, but they thought such anger had been provoked by trial counsel.

 Effect of Evidence

 Except for the testimony of the defendant Offutt, the oral evidence does not vary the record of the Peckham trial or the impressions created by a reading of the transcript. The testimony of defendant Offutt disclaims evil or contumacious intent. It tells why Offutt did the things now charged or cited as contumacious, and what the basis or reason was for certain questions alleged to have 'no foundation.'

 A consideration of all the oral testimony confirms the effect created by a mere reading of the transcript and record of the Peckham case. After giving due regard to the testimony of Offutt regarding his intention, purpose, and the factual basis of his conduct, the question remains, Does his conduct as revealed by the record constitute contempt of court?

 Analysis of Former Decisions

 In answering that question, this Court is at once confronted by the decisions and opinions of the Court of Appeals and of the Supreme Court, cited by counsel on both sides of this case. The Court of Appeals, 93 U.S.App.D.C. 136, 210 F.2d 693, 702, reversed the conviction in the Peckham case because of conduct of the trial judge which it concluded 'demonstrated a bias and lack of impartiality.' In determining the first appeal of Offutt from the finding of contempt, the Court of Appeals (93 U.S.App.D.C. 148, 208 F.2d 842, 843) said that the petitioner's conduct could not 'be considered apart from that of the trial judge', and reduced the sentence because of the conduct of the trial judge which they had mentioned when reversing the conviction in the Peckham case.

 The majority opinion of the Supreme Court states that the whole record amply supports this characterization of the conduct of the trial judge by the Court of Appeals. Because of the attitude of the trial judge in the Peckham case, they remanded the contempt proceedings for retrial in the District Court by a judge other than the judge who presided at the Peckham trial.

 On the other hand, counsel for the prosecution called this Court's attention to the fact that the Court of Appeals in its first opinion had affirmed the finding on four of the charges of contempt. The Court of Appeals in that case considered the improper conduct of the judge as grounds for mitigation, but the court did not absolve the petitioner Offutt from all wrong doing.

 The Supreme Court in the majority opinion said (348 U.S. 11, 75 S. Ct. 14), 'Nor are we unmindful of the fact that the ultimate finding of reprehensible misconduct by petitioner was sustained by the Court of Appeals' * * * and further: 'We are not intimating that the Court of Appeals was not justified in finding ample support for its conclusion that the trial judge was warranted in deeming petitioner's conduct as such contemptuous.'

 The Supreme Court reversed the conviction because it concluded that the accused should have had a trial before a different judge. Three of the Justices dissented, saying that they would affirm the judgment of the Court of Appeals, and one of the dissenting judges said, 'This case goes back to the District Court for hearing by another judge on charges as to which, on the record, this Court admits petitioner is guilty. It is only a question of how much punishment he shall receive.'

 This Court ordinarily has no authority and no occasion to pronounce judgment on the work or conduct of another judge of this court. The last mandate from the Court of Appeals, however, ordered a retrial and consideration of such evidence as might be offered in addition to the record of the Peckham trial, for the purpose of showing the conduct and circumstances of such trial and what effect, if any, the conduct of the trial judge had on the challenged conduct of trial counsel. Having considered all the evidence in accordance with the mandate, this Court is confronted by three questions:

 (1) Did the conduct of the trial judge in the Peckham case justify, excuse or exculpate counsel for conduct alleged to be contumacious (and so found to be by the reviewing courts)?

 (2) Did the conduct of the trial judge extenuate, mitigate or ameliorate the conduct of trial counsel, if found to be improper?

 (3) If the conduct of trial counsel was not justified or excused by the conduct of the trial judge, what should the sentence of punishment be in view of extenuating circumstances?


 It is the finding and judgment of this Court that the conduct of the trial judge did not justify or excuse the challenged conduct of trial counsel. It is the opinion of this Court that improper conduct of a trial judge can never justify or excuse contemptuous conduct of a trial attorney. It is, of course, the duty of a lawyer to protect the rights of his client, but vigorous advocacy should never extend to contempt of court. He is obliged at times to state for the record the reasons for his motions or objections, but that should be done decorously in accordance with the rules of trial practice. If denied by the trial judge an opportunity to state his reasons or objections, he should rest content that an appellate court will consider his proffer and allow him to state his reasons and objections on appeal.

 One of the witnesses called by the defendant testified that he had told Offutt that he should be respectful whatever the conduct of the judge. The reason for this strict rule is that the trial judge represents the sovereignty of the law and government. If the man who is counsel meets the man who is judge on the street, in the market place, or on the playing field, they are governed by the same rules of conduct that apply to other men, and they stand on equal footing. When in court, however, the judge, even in spite of human frailties, still is the representative of the sovereign power, and counsel must always respect the office whatever his opinion of the incumbent. Two wrongs do not make a right, and misconduct cannot obliterate other ...

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