THE COURT: We come now -- will you call this case, please.
THE CLERK: 69 CR 180, United States of America vs. David Dellinger, et al.
THE COURT: This matter now involves the conduct of Mr. William
counsel for some of the defendants here, who has participated in this
from the very
I have said here frequently that the Court has never had occasion to hold a lawyer in contempt, and only on one occasion did the Court hold someone who is not a lawyer in contempt. That that sentence in that case was concurrent with the sentence in the main case.
I recognize the obligation of a lawyer to defend a client with vigor, and secure for his client the full benefits under the law. Nevertheless, if he crosses the bounds of legal propriety, the Court must deal appropriately with that conduct. . . .
Specification 2: On October 15, following the incident of the Vietnam Moratorium demonstration alluded to in the citations of contempt by the defendant Dellinger, the following colloquy took place with Mr. Kunstler:
"MR. KUNSTLER: Are you turning down my
after this disgraceful episode. You are not going to say
"THE COURT: I not only turn it down, I ignore it.
"MR. KUNSTLER: That speaks louder than words, too, your Honor.
"THE COURT: And let that appear of record, the last words of Mr. Kunstler, and, Miss Reporter, be very careful to have them on the record." 14 days.
Specification 3: On October 30, as the Court was attempting to maintain order by restraining the defendant Bobby Seale, Mr. Kunstler not only made no attempt to aid the Court in maintaining order, but engaged in the following colloquy as well:
"MR. KUNSTLER: Your Honor, are we going to
stop this medieval torture that is going on in this courtroom? I
think this is a disgrace.
"MR. RUBIN: This guy is putting his elbow in Bobby's mouth and it wasn't necessary at all.
"MR. KUNSTLER: This is no longer a court of order, your Honor; this is a medieval torture chamber. It is a disgrace. They are assaulting the other defendants also.
"MR. RUBIN: Don't - -"
And I don't use this kind of language here if I can help it, but, Miss Reporter, I refer you to the notes here, if you are not able to get this, from the way I give it to
MR. RUBIN: Don't hit me in the b-a-l-l-s, M-f."
As has been used during this trial on numerous occasions.
"MR. SEALE: This m-f is tight and it is stopping my blood.
"MR. KUNSTLER: Your Honor, this is an unholy disgrace to the law that is going on in this courtroom and I as an American lawyer feel a disgrace.
"MR. FORAN: Created by Mr. Kunstler.
"MR. KUNSTLER: Created by nothing other than what you have done to this man.
"MR. HOFFMAN: . . . - - being a defendant - -. . . You come down here and watch it, Judge.
"MR. FORAN: May the record show that the outbursts are the defendant Rubin.
"MR. SEALE: You fascist dogs, you rotten, low-life son of a b. - -"
The word is spelled out.
"MR. SEALE: - - I am glad I said it about Washington used to have slaves, the first President.
"MR. DELLINGER: Somebody go to protect him.
"MR. FORAN: Your Honor, may the record show that it is Mr. Dellinger saying 'Someone go to protect him' and the other comment is by Mr. Rubin.
"MR. RUBIN: And my statement, too.
"THE COURT: Everything you say will be taken down.
"MR. KUNSTLER: Your Honor, we would like the names of the marshals. We are going to ask for a judicial investigation of the entire condition and the entire treatment of Bobby Seale.
"THE COURT: You ask for anything that you want. When you begin to keep your word around here that you gave the Court, perhaps things can be done.
"MR. KUNSTLER: If we are going to talk about words, I am prepared to give you back your word about Mr. Ball yesterday and what he said you said to him. We have the transcript now.
"THE COURT: Don't point at me, sir, in that manner.
"MR. KUNSTLER: If we are going to talk about words, I'd like to exchange some.
"THE COURT: Don't point at me in that manner.
"MR. KUNSTLER: I just feel utterly ashamed to be an American lawyer at this time.
"THE COURT: You should be ashamed of your conduct in this case, sir.
"MR. KUNSTLER: What conduct, when a client is treated in this manner.
"THE COURT: We will take a brief recess.
"MR. KUNSTLER: Can we have somebody with Mr. Seale? We don't trust - - 3 months . . .
Specification 6: On December 12, during the direct examination of the witness Ginsberg, the Court determined that a recess was appropriate. Mr. Kunstler opposed that recess in a shouting and disrespectful manner as is set out in the following selection from the record:
"MR. FORAN: I think at least several
your Honor, ten, fifteen minutes.
"THE COURT: Are you suggesting we recess?
"MR. FORAN: I would think possibly yes, your Honor, because I would just get back up here and get started.
"THE COURT: You mean recess until the afternoon?
"MR. FORAN: After lunch.
"THE COURT: All right. We will go until 2:00 o'clock.
"MR. WEINGLASS: Your Honor --
"MR. KUNSTLER: Your Honor, we have witnesses who are leaving the country this afternoon who are presently here. I don't think there should be any delay in the cross-examination.
"MR. FORAN: Your Honor, after each --
"MR. WEINGLASS: Wait --
"MR. KUNSTLER: Mr. Foran, may I finish my statement?
"MR. FORAN: Excuse me, Mr. Kunstler.
"MR. KUNSTLER: We have two witnesses in the witness room now waiting around here for two days. One is leaving the country tomorrow morning and must testify or we lose him forever, and the other has to return to the West Coast.
"THE COURT: I have granted the request of the defendant - -
"MR. KUNSTLER: We asked for five minutes two days ago in front of this jury and you refused to give it to us.
"MR. FORAN: Your Honor, on every - -
"THE COURT: You will have to cease that disrespectful tone.
"MR. KUNSTLER: That is not disrespectful; that is an angry tone, your Honor.
"THE COURT: Yes, it is. Yes, it is. I will grant the motion of the Government.
"MR. KUNSTLER: You refused us five minutes the other day.
"MR. FORAN: Your Honor, on every
"THE COURT: You are going to have to learn
"MR. KUNSTLER: I am trying to learn.
"THE COURT: I have given up trying to point it out to you.
"MR. KUNSTLER: Why the different treatment?
"THE COURT: I will not sit here and have you assume a disrespectful tone to the Court.
"MR. KUNSTLER: This is not disrespect.
"THE COURT: Yes, it is.
"MR. KUNSTLER: I am asking you to explain to the defense which claims it is getting different treatment, why a simple request of five minutes was not granted.
"MR. FORAN: Your Honor, may I comment that after the direct examination of every single Government witness in this case, the defense had a recess to prepare their cross-examination. That was after 54 witnesses. Every one had a recess.
"MR. KUNSTLER: Your Honor, this is the grossest statement I have ever heard in a courtroom. This jury doesn't know that after every Government witness -- we might as well tell them -- there is a series of documents that are given to the defense and the defense must read, and that is the only reason the request was granted. They have no documents - -
"MR. FORAN: That is right, your Honor. That is --
"MR. KUNSTLER: They must go on.
"MR. FORAN: We don't it is a two-way street - - it is a one-way street.
"MR. KUNSTLER: They have no documents to read.
"MR. FORAN: Your Honor - -
"MR. KUNSTLER: It is a one-way street, your Honor. That is what we are on.
"MR. FORAN: From the Government to the defense, your Honor.
"THE COURT: Now, sir
"MR. KUNSTLER: We are on a one-way street, your Honor. Five minutes we requested from you.
"THE COURT: Mr. Kunstler - -
"MR. KUNSTLER: Your Honor, what else can I think?
"THE COURT: I have admonished you time and again to be respectful to the Court. I have been respectful to you.
"MR. KUNSTLER: Your Honor, this is not disrespect for anybody but - -
"THE COURT: You are shouting at the Court.
"MR. KUNSTLER: Oh, your Honor --
"THE COURT: Shouting at the Court, the way you do - -
"MR. KUNSTLER: Everyone has shouted from time to time, including your Honor. This is not a situation - -
"THE COURT: Make a note of that, please. I have never --
"MR. KUNSTLER: Voices have been raised --
"THE COURT: I never shouted at you during this trial.
"MR. KUNSTLER: Your Honor, your voice has been raised.
"THE COURT: You have been disrespectful.
"MR KUNSTLER: It is not disrespectful, your Honor.
"THE COURT: And sometimes worse than that.
"THE WITNESS: O-o-m-m-m-m.
"THE COURT: Will you step off the witness stand, please, and I direct you not to talk with anybody about this case or let anybody speak with you about it until you resume the stand at 2:00 o'clock, at which time you are directed to return for further examination.
"MR. KUNSTLER: He was trying to calm us both down, your Honor.
"THE COURT: Oh, no. I needed no calming down.
"MR. KUNSTLER: Your Honor has --
"THE COURT: I am pointing out to a lawyer that we will not tolerate disrespect in this court.
"MR. KUNSTLER: Your Honor, how --
"THE COURT: That will be all.
"MR. KUNSTLER: What about our witnesses who have to leave the country? You are depriving us of these witnesses.
"THE COURT: We will recess, Mr. Marshal, until 2:00 o'clock.
"MR. KUNSTLER: Oh, that is unfair." 3 months
Specification 7: On December 23, Mr. Kunstler indicated that he had some information concerning a possible challenge by the Government to one of the jurors. Mr. Schultz raised an objection indicating that this matter should be discussed outside the presence of the jury. The Court then excused the jury. As the jury was walking out Mr. Kunstler repeated those charges in a loud voice so that the jury could hear him as they were exiting. This incident is set out in the record as appearing in the following summary:
"MR. WEINGLASS: Your Honor, the defendants
and Mr. Kunstler will be in the courtroom momentarily.
"THE COURT: Will you please call your next witness.
"MR. KUNSTLER: Your Honor, before calling next witness the defense has an inquiry to make.
"Your Honor will recall that I asked certain questions about the half-hour delay - -
"MR. SCHULTZ: If the Court please, I think that the matter that Mr. Kunstler made inquiry about out of the presence of the jury, if he wants to make inquiry now, we should have it with the Court solely.
"MR. KUNSTLER: Your Honor, I am not going into that but I want to indicate this, that we are prepared to call another witness but since this witness is a defendant, we have an inquiry to make. We have beard from people outside the courtroom here, reporters and others --
"MR. SCHULTZ: Your Honor --
"MR. KUNSTLER: - - that the Government is planning to launch an attack on the jury.
"MR. SCHULTZ: I don't [know] what it is Mr. Kunstler is going into, but I do know that it is improper for him to say what it is in the presence of the jury.
"THE COURT: I will excuse you.
"MR. KUNSTLER: Your Honor, it is an attack on the jury, and that is why I am mentioning it with the jury here.
"MR. SCHULTZ: Mr. Kunstler has just heard the Court's ruling and he knows that the Court has ordered the jury excused for the purpose of this argument, but that doesn't stop him. He wants to continue. We are bound by Court - -
"THE COURT: Now I will bear you.
"(The following proceedings were had in open court, out of the presence and hearing of the jury.)" 3 months
Specification 8: On January 6 the defendants called Mayor Richard J. Daley of Chicago to the stand as their witness. In a colloquy prior to the witness taking the stand Mr. Kunstler clearly indicated his understanding of the limitations on interrogating one's own witness. Furthermore, the Court ordered that any motions to declare the witness Daley a "hostile witness" be made outside the presence of the jury. In the course of the direct examination of this witness which runs from Page 13,900 to 14,024 of the official transcript, Mr. Kunstler asked no less than 83 questions which were objectionable, mostly leading and suggestive. Furthermore, he directly violated the Court's order by moving to have the witness Daley declared a "hostile witness" in the presence of the jury.
After this motion was denied, Mr. Kunstler continued asking leading and suggestive questions which he knew to be improper. His conduct was repeated so many times that it must be considered contemptuous. 6 months
Specification 9: On January 12 Mr. Kunstler refused to be seated and discontinue his argument despite admonitions and directions to do so by the Court. This incident is reported thusly in the transcript:
"THE COURT: -- forbidding the defendants from
out at their pleasure ostensibly to what has been referred to not
by counsel as the bathroom. I have never sat in a case where
mention that word as often. I wonder if you, Mr. Marshal, can
that man quiet while I am speaking. I am trying to decide his
motion. Please go to him and tell him to keep quiet.
"THE MARSHAL: Mr. Dellinger --
"THE COURT: Let the record show that after I requested the marshal to keep Mr. Dellinger quiet he laughed right out again, out loud. The record may so indicate.
"MR. DELLINGER: And he is laughing now, too.
"THE MARSHAL: And the defendant Hayden, your Honor.
"THE COURT: Mr. Hayden also.
"MR. KUNSTLER: Oh, your Honor, there is a certain amount of humor when talking about a bathroom - -
"THE COURT: Oh, I know that is your favorite reply.
"MR. HOFFMAN: I laughed, too.
"MR. KUNSTLER: But people can't help it sometimes, your Honor. You have laughed yourself.
"THE COURT: I really have come to believe you can't help yourself. I have come to believe it.
"MR. KUNSTLER: But that is true. A whole courtroom full of people laugh when I say something and when you say something.
"THE COURT: What I am saying is not very funny.
"MR. KUNSTLER: I know, but you are so ultrasensitive to laughter.
"THE COURT: Will you sit down and not interrupt the Court when a decision is being made?
"All I ask from you, sir, is simple manners. I don't reach the question of law.
"MR. KUNSTLER: A laugh is not bad manners. Really.
"THE COURT: I have never been in a case where I have seen such bad manners.
"MR. KUNSTLER: I know, but your Honor, when you make a joke and the courtroom laughs, nobody is thrown out.
"THE COURT: Just sit down. I have not made any jokes.
"MR. KUNSTLER: I know, but you do from time to time.
"THE COURT: I ask you to sit down during the rendering of this decision, sir.
"Let the record show that the defendants-rather the defendants' counsel, Mr. Kunstler, on two occasions here refused to sit down when the Court directed him to sit down.
"MR. KUNSTLER: Oh, that's not fair, your Honor.
"MR. WEINGLASS: He sat down on both occasions, your Honor. I must object to that.
"MR. KUNSTLER: I sat down on both occasions.
"THE COURT: I mean right now, in this decision.
"MR. KUNSTLER: I sat down.
"THE COURT: You did finally after I urged you.
"MR. WEINGLASS: Your Honor, that is not a fair characterization.
"THE COURT: Will you sit down.
"MR. WEINGLASS: Mr. Kunstler did sit down both times.
"THE COURT: I didn't ask you to stand. I am giving a decision, sir.
"MR. WEINGLASS: I think it should be on the record --
"THE COURT: I am giving a decision, and if you don't sit down - - be has sat down now.
"Mr. Marshal see that Mr. Weinglass remains in his chair while the Court is rendering a decision on this motion made by Mr. Weinglass. 21 days
Specification 11: On January 4, Mr. Kunstler engaged in the following colloquy, twice more refusing to sit down, the Court ordered him to do so, and continuing his argument until the marshal approached him. The incident is set forth in the following excerpt from the record:
"THE MARSHAL: Mr. Dellinger, also, will you
"MR. DELLINGER: That is a lie. And it wasn't Mr. Rubin. We laugh enough and you can catch us when we do but you just happened to get that one wrong.
"MR. KUNSTLER: Your Honor, I don't think the record should constantly have these references to chuckles - -
"THE COURT: I think the record should show that and I see that the record does. I don't share your view.
"MR. KUNSTLER: The Court has made a sally before and the room laughed and you didn't say put that on the record.
"THE COURT: I will not sit here-and you must know it by now, certainly-and have defendants laugh at my rulings, sir. And I will not hear you on that.
"MR. KUNSTLER: You don't mind if they laugh at me or if they laugh at someone else.
"THE COURT: I will ask you to sit down.
"MR. KUNSTLER: I don't think your Honor's ultrasensitivity should make a difference in rulings in this court.
"THE COURT: It isn't ultrasensitivity. It is a proper understanding of the conduct of a trial in the Federal District Court.
"MR. KUNSTLER: When you interpret it as a laugh at you --
"THE COURT: Some people here don't seem to know about it.
"MR. KUNSTLER: No, but, your Honor, when you try to interpret a laugh as meaning you are the butt of a joke, then you react - -
"THE COURT: I will ask you to sit down. Did you hear me?
"MR. KUNSTLER: I just don't want to get thrown in my chair by the marshal, so I will have to sit down, but I just don't think it is fair to do that.
"MR. HOFFMAN: I laughed anyway.
"THE COURT: Will you be quiet, Mr. --
"MR. HOFFMAN: I laughed. It wasn't Jerry. It was me.
"THE COURT: Did you get that, Miss Reporter?
"MR. HOFFMAN: - - at that ruling. I laughed. He didn't.
"THE COURT: That was Mr. Dellinger.
"MR. KUNSTLER: That was not Mr. Dellinger." 7 days
Specification 15: On January 22, after a ruling by the
there were loud groans from the defense table. Instead of
to aid the Court in keeping order, Mr. Kunstler indicated that he
and approved of such behavior by the defendants. The incident is
reported in the record as follows:
"THE COURT: Mr. Marshal, I wish you'd take care of that.
"MR. KUNSTLER: Your Honor, those groans are highly appropriate. I get no help from you, so a groan of a client once in a while at least keeps my spirit up.
"THE COURT: I note that you approve of the groans of the client in open court.
"MR. KUNSTLER: I approve of those groans, your Honor, when your Honor does not admonish Mr. Schultz.
"THE COURT: I note them. I note them, sir.
"MR. KUNSTLER: What can I do?
"THE COURT: You can continue with your argument." 21 days
Specification 17: On January 23 the Court denied the motion
a mistrial. After the denial Mr. Kunstler continued to attempt to
argue the motion. The record appears as follows:
"MR. KUNSTLER: You haven't even heard the motion.
"MR. RUBIN: You haven't heard it yet.
"THE COURT: For a mistrial.
"MR. KUNSTLER: Yes, but I would like to argue it.
"THE COURT: Oh. there is no grounds for a mistrial.
"MR. KUNSTLER: Your Honor knows you have referred to the question of the defendants taking the stand. You have committed the cardinal error of a court with reference - -
"THE COURT: I ask you to sit down, sir.
"MR. KUNSTLER: But your Honor..
"THE COURT: I direct the marshal to have this man sit down.
"MR. KUNSTLER: Every time I make a motion am I going to be thrown in my seat when I argue it?
"THE COURT: You may sit down.
"MR. DELLINGER: Force and violence.
"MR. KUNSTLER: If that is the ruling of the Court that we cannot argue without being thrown in our seats.
"MR. DELLINGER: The Judge is inciting a riot by asking the marshal to have him sit down."
After this incident there was a loud burst of applause from the spectators' galleries and the marshal determined that several spectators would have to be removed. During the removal and disorder, instead of attempting to maintain order in the courtroom, Mr. Kunstler issued the following running commentary from the lectern, which had the effect of encouraging disorder among the spectators.
"MARSHAL JOHNSON: Will you sit down.
"THE COURT: Will you continue, please, with the direct examination of this witness?
"MR. DELLINGER: There goes the violence right there.
"MR. KUNSTLER: That's the Government in operation, your Honor, as it has been throughout this trial.
"THE WITNESS: Your Honor, that's my sister they're taking out of the courtroom.
"THE COURT: Even your sister --
"MR. KUNSTLER: Nobody but the Government has employed violence in this courtroom with Bobby Seale, with spectators.
"THE COURT: Since you refer to Bobby Seale, your client, I recall - -
"MR. KUNSTLER: Not my client, your Honor.
"THE COURT: - - I recall being called various kinds of pigs by that man.
"MR. RUBIN: Bill, they are taking you
"MR. KUNSTLER: Well, your Honor would not let him defend himself, everybody knows that now.
"(Cries of 'Hey, stop it.')
"MR. KUNSTLER: Your Honor, must we always have this, the force and power of the Government?
"MR. FORAN: Your Honor - -
"MR. RUBIN: They are dragging out my wife will you please - -
"THE COURT: We must have order in the courtroom.
"MR. KUNSTLER: They like to strike women, your Honor, we've seen that constantly here." 4 months
Specification 18: On January 23 when the Court determined that it was time to recess the afternoon session, Mr. Kunstler made an argument and insulted the Court
in the following manner:
"MR. KUNSTLER: I realize that, but as long as we are going on six days a week now
"THE COURT: 9:30 tomorrow.
"MR. KUNSTLER: -- I just don't understand the half hour difference.
"THE COURT: I am not obligated to explain to you, sir, the time for the arrival of the jurors and the parties - -
"MR. KUNSTLER: No. but since we are going to work the extra day - -
"THE COURT: - - and the parties to a lawsuit.
"MR. KUNSTLER: Why shouldn't that be at 10:00 o'clock like any other day?
"THE COURT: Because it is at 9:30.
"MR. KUNSTLER: That is like a child saying, 'Because, because.' I don't think that when we are going an extra day - -
"THE COURT: Let the record show that, in the presence of the jury, Mr. Punster compared me to a child.
"MR. KUNSTLER: Oh, your Honor --
"THE COURT: Now, we will have no more of that, sir.
"MR. KUNSTLER: Your Honor, I don't think we can come down to the absurd.
"THE COURT: We have had enough of your remarks in this trial.
"MR. KUNSTLER: That is - -
"THE COURT: 9:30 tomorrow morning, ladies and gentlemen.
"MR. KUNSTLER: - - absurd.
"THE MARSHAL: Mr. Hoffman, will you keep quiet, please.
"DEFENDANT HOFFMAN: It is funny.
"THE COURT: If the marshals can keep those defendants quiet, I will direct the jury when to return." 1 month
Specification 20: On February 2, after the Court ruled that
Kunstler would have to abide by his representation the previous Friday,
and therefore would not be
able to call the Reverend Ralph Abernathy to the stand, Mr. Kunstler made the following speech at the conclusion of his argument:
"THE COURT: There have been several witnesses
here during this trial -- I need not mention their names -- whose
the Court ruled could not even be presented to the jury: singers,
and former office holders. I think in the light of the
made by you unequivocally, sir, with no reference to Dr. Abernathy, I
deny your motion that we hold --
"MR. KUNSTLER: I want to comment on this, your Honor, because I think what you have just said is about the most outrageous statement I have ever heard from a bench, and I am going to say my piece right now, and you can hold me in contempt right now if you wish to.
"You have violated every principle of fair play when you excluded Ramsey Clark from the witness stand. The New York Times, among others, has
called it the ultimate outrage in American justice.
"VOICES: Right on.
"MR. KUNSTLER: I am outraged to be in this court before you. Now because I made a statement on Friday that I had only a cameraman, and I discovered on Saturday that Ralph Abernathy, who is the chairman of the Mobilization, is in town, and can be here, and because you took a whole day from us on Thursday by listening to this ridiculous argument about whether Ramsey Clark could take that stand in front of the jury, I am trembling because I am so outraged. I haven't been able to get this out before, and I am saying it now, and then I want you to put me in jail if you want to. You can do anything you want with me, if you want to; because I feel disgraced to be here, to say to us on the technicality of my representation that we can't put Ralph Abernathy on the stand. He is the co-chairman of the MOBE. He has relevant testimony. I know that doesn't mean much in this Court when the Attorney General of the United States walked out of here with his lips so tight he could hardly breathe, and if you could see the expression on his face, you would know, and his wife informed me he never felt such anger at the United States Government as at not being able to testify on that stand.
"VOICES: Right on.
"MR. KUNSTLER: You can't tell me that Ralph Abernathy cannot take the stand today because of the technicality of whether I made a representation. That representation was made in perfect good faith with your Honor. I did not know that Reverend Abernathy was back in the country. We have been trying to get him for a week and a half to be the last witness for the defense in this case. And now to tell me that we are going ahead, the Government is ready, after you took Thursday from us to have this argument over whether a man could be presented to a jury, I told your Honor then, and I am telling you now, no American court has ever done what your Honor did - -
"VOICES: Right on.
"MR. KUNSTLER: basing it on a case which was inapplicable to the situation. -That was done for one purpose only, and the New York Times said it more beautifully than I could say it, and they said, 'It was done to make inadmissible anything that would "interfere" with the Justice Department's intent to prove a conspiracy to incite a riot during the Democratic National Convention.'
"VOICES: Right on.
"MR. KUNSTLER: That was the reason behind your Honor's ruling, nothing short of that.
I have sat here for four and a half months and watched the objections denied and sustained by your Honor, and I know that this is not a fair trial.
I know it in my heart. If I have to lose my license to practice law and if I have to go to jail, I can't think of a better cause to go to jail for and to lose my license for - -
"A VOICE: Right on.
"MR. KUNSTLER: - - than to tell your Honor that you are doing a disservice to the law in saying that we can't have Ralph Abernathy on the stand. You are saying truth will not out because of the technicality of a lawyer's representation. If that is what their liberty depends upon, your Honor saying I represented to you that I had a cameraman, and that was our only witness, a cameraman, whom we can't get, incidentally, then I think there is nothing really more for me to say.
"THE COURT: There is not much more you could say, Mr. Kunstler.
"MR. KUNSTLER: I am going to turn back to my seat with the realization that everything I have learned throughout my life has come to naught, that there is no meaning in this court, and there is no law in this court - -
"VOICES: Right on.
"MR. KUNSTLER: and these men are going to jail by virtue of a legal lynching - -
"VOICES: Right on.
"MR. KUNSTLER: and that your Honor is wholly responsible for that, and if this is what your career is going to end on, if this is what your pride is going to be built on, I can only say to your Honor, 'Good luck to you.'
"(There were shouts of 'Right On,' and there was applause in the courtroom.)" 6 months
Specification 21: After the Court ruled, on February 2, that the Reverend Abernathy would not be permitted to take the stand, the Court entered an order to Mr. Kunstler and the other attorneys and defendants that they may not mention the name of the Reverend Abernathy in front of the jury. Mr. Kunstler not only defiantly indicated that he fully intended to violate that order, but in the middle of the direct testimony of the witness Lynskey, Mr. Kunstler actually brought the witness -- that should be Reverend, he was not a witness -- Abernathy into the courtroom and made a statement to the jury and physically embraced the witness Abernathy in front of the jury. This flagrant violation of the Court's order is reported as follows:
"MR. SCHULTZ: Your Honor, may the defendants and their counsel then not make any reference in front of the jury that they wanted Doctor Abernathy to testify?
"MR. KUNSTLER: No, no.
"THE COURT: I order you not to make such a statement.
"MR. KUNSTLER: We are not going to abide by any such comment as that.
"Doctor Ralph Abernathy is going to come into this courtroom, and I am going to repeat my motion before that jury.
"THE COURT: I order you not to.
"MR. KUNSTLER: Then you will have to send me to jail, I am sorry.
"MR. SCHULTZ: Your Honor, it is our position we are ready to go ahead now. If Doctor Abernathy were here, if he were here, it would be our position that they could put him on, but he is not here. We are ready to go ahead. We would like to proceed with the case.
"THE COURT: Bring in the jury, Mr. Marshal.
"MR. KUNSTLER: We have a right to state our objection to resting before the jury.
"THE COURT: Don't do it.
"MR. KUNSTLER: I am going to have to put MY liberty in your hands on that score. ply inviting it.
"MR. SCHULTZ: Mr. Kunstler is simply am inviting it.
"MR. KUNSTLER: Oh, of courses I because what your Honor is doing is a disgrace in this court.
"THE COURT: He did more than invite.
"MR. KUNSTLER: He will be here in five minutes. Your Honor, what is an honest man to do when your Honor has done what he has done? What am I to do? Am I to stand here and say, 'Yes, yes, yes ?
"THE COURT: I will ask you to sit down. I have heard enough from you along this line this morning, sir. I have never as a lawyer or a judge heard such remarks in a courtroom made by a lawyer.
MR. KUNSTLER: Your Honor, no one has heard of such conduct as is going on in this courtroom from the bench. The New York Times is not alone in that respect, and this is the ultimate outrage - and I didn't say - - the editorial writers of the New York Times said that.
"MR. SCHULTZ: May we proceed, your Honor?
"THE COURT: Yes. I have ordered the jury brought in."
"MR. KUNSTLER: Your Honor, if I can interrupt, Doctor Ralph Abernathy has just arrived.
"THE COURT: Let him sit down.
"MR. KUNSTLER: I would like to put him on the stand for the defense.
"THE COURT: Let him sit down.
"MR. KUNSTLER: I would like to move to reconsider to put him on the stand as a witness for the defense. It is now just 11:37.
"THE COURT: Let him sit down, please. You may continue with your examination, Mr. Foran.
"MR. KUNSTLER: Does your Honor deny my motion?
"THE COURT: I do, sir.
"You may continue with your examination.
"MR. KUNSTLER: Your Honor it is only 16 minutes after the Government said they would have no objection to - having Doctor Abernathy testify. He was flown here from Atlanta to be a witness for the defense.
"THE COURT: I do not interpret what the Government says to mean that, and the Government is not running this courtroom.
"MR. KUNSTLER: Your Honor - -
"THE COURT: Will you continue?
"MR. KUNSTLER: Is the truth to be deprived from this jury because of 16 minutes?
"MR. FORAN: Your Honor, the Government is in the middle of the examination of a witness.
"MR. KUNSTLER: We have tried to get the few minutes delay so we could bring Doctor Abernathy here.
"THE COURT: I ask you to sit down, sir.
"BY MR. FORAN:
"Q What was the noise level at that time?
"MR. KUNSTLER: Your Honor, before this goes on, would your Honor permit an application for Doctor Abernathy to testify after this witness has testified?
"THE COURT: I ask you to sit down.
"MR. KUNSTLER: Otherwise we are going to excuse him.
"THE COURT: Mr. Marshal, have that lawyer sit down.
"MR. KUNSTLER: Can you give me an answer to my question? We want to excuse Doctor Abernathy.
"THE COURT: If you will please sit down
"MR. KUNSTLER: I am going to be forced in a minute so I have no alternative.
"THE COURT: Yes.
"MR. KUNSTLER: Can I get an answer sitting down to my question?
"MR. FORAN: Your Honor, the interruption in the midst of the questioning of a witness in the presence of the jury is unheard of, your Honor. I
wish he would - -
"MR. FROINES: So is not putting on a witness.
"A VOICE: - - going to walk out of the courtroom because we can't put a man on the stand.
"A VOICE: Can't put on our witness - -
"THE COURT: Did you bear what I asked you to do, sir?
"MR. KUNSTLER: I am down.
"THE COURT: Please continue with your examination.
"MR. KUNSTLER: I am going to ask Doctor Abernathy to leave, your Honor. It is obvious be is not going to testify.
"MR. FORAN: Your Honor, the proper procedure is to discuss such matters outside the presence of the jury, not in the midst of the questioning of the
"THE COURT: I ordered him not to discuss that witness in the presence of the jury before the jury came in. He violated my order.
"MR. FORAN: Your Honor, may I wait? May I await Mr. Kunstler returning to counsel table?
"MR. KUNSTLER: I will be back, your Honor.
"THE COURT: Yes. You may wait.
"Let the record show the hug of counsel for the defendant.
"MR. FORAN: Your Honor, the discussion of whether or not the witness should be called as a witness would properly await the finishing of the examination of this witness and the demonstration --
"THE COURT: Go ahead.
"MR. KUNSTLER: Then I told him to leave, your Honor. He --
"THE COURT: All right. You have told him to leave.
"MR. KUNSTLER: I can hold him if there is nothing -- we want him to testify.
"THE COURT: You told him to leave and I again direct you to sit down. We have had enough this morning.
"MR. KUNSTLER: May I send one of the defendants out just to ask him to stay, so perhaps - -
"THE COURT: No, you may not send one of the defendants out. You may not send - -
"MR. KUNSTLER: May I go and tell him?
"THE COURT: I ask you to sit down.
"MR. KUNSTLER: Your Honor, just to tell him so that, if the Government is going to permit him to testify - -
"THE COURT: I have had enough of your insults this morning.
"MR. KUNSTLER: Your Honor, this being insulting.
"THE COURT: You were this morning.
"MR. KUNSTLER: I was not insulting. I told you the truth this morning. I told you what the New York Times said - -
"THE COURT: All right.
"MR. KUNSTLER: about the refusal to put a witness on the stand.
"THE COURT: Sit down, sir, or we will arrange to have you put down." 6 months
Specification 22: On February 4, when the Court determined that the time had come to revoke the bail of the defendant Dellinger, there was a loud outburst in the courtroom. It was essential that marshals forcibly clear people from the courtroom in order to maintain order. When disorder broke out in the spectator benches, Mr. Kunstler blamed the disorder on the Court, and fanned the flames of the disorder with these inciting comments:
"MR. KUNSTLER: You brought this on, your
This is your fault. This is what happened in Chicago. You
the power move. You exerted the power, and I would like to argue
"THE COURT: You won't argue the point.
"MR. KUNSTLER: I will argue, your Honor, that your Honor's action is completely and utterly vindictive, and there is no authority that says because a defendant blurts out a word in court -
"THE COURT: This isn't the first word, and I won't argue this."
"MR. KUNSTLER: No, you know that if you did that, you would add to reversible error in this case. Why not take them all?"
"MR. KUNSTLER: Your Honor, there is no need for your action."
"MR. KUNSTLER: Your Honor, is there no decency left here? Can't we just argue the point?" 4 months
Specification 24: On February 9, Mr. Kunstler engaged the Court in a colloquy concerning certain representations he had made to the Court concerning defendants surrebuttal case. The Court had occasion to take him to task, and he insulted the Court in the following manner:
"THE COURT: I want to read what you said.
"MR. KUNSTLER: All right.
"THE COURT: I will wait.
"But do you" - - and I am addressing you "do you give me your assurance, sir - -" - - I am reading from the transcript of evidence, Page 20278, "in the presence of this jury and all those assembled here, the lawyers, the parties, that you will not attempt or offer any additional - - or offer any additional witnesses on Monday? We are conditioning this continuance or I propose to condition it on your representation that will not be the case.
"May I have just a moment to consult?
"Now it takes a witness to identify a document, sir.
"MR. KUNSTLER: No, no. The witness has testified already, your Honor, Your Honor is now proved wrong. I said 'witnesses,' and I stand by that. There are no additional witnesses. I did - - I think your Honor has read the transcript to show that I was right in this instance. Now, your Honor, you are not going to find it, I don't think.
"Your Honor, why don't you just agree for once that perhaps I am right, and I am.
"THE COURT: I will strike the remark of Mr. Kunstler, insulting as it is.
"MR. KUNSTLER: It is not insulting.
"THE COURT: And I direct the jury to disregard it.
"MR. KUNSTLER: Your Honor - -
"THE COURT: I sat here patiently for five months, sir, pretty nearly.
"MR. KUNSTLER: I have been here patiently for five months.
"THE COURT: I want to tell you that for you to say 'Why don't you agree for once' is about as rotten a thing as I have ever had said to me,
"MR. KUNSTLER: With rare exceptions you have not agreed with me on anything throughout this trial. It is not meant to be insulting, your Honor. You are poring" -- the records says -- "through the transcript - -
"THE COURT: I take it as an insult.
"MR. KUNSTLER: Because you want to find that I am wrong.
"THE COURT: I have given all my judicial time to this case.
"MR. KUNSTLER: I have devoted all my legal time. We have all devoted our time. The jury devotes its time and you do.
"THE COURT: I will not hear you further in connection with that exhibit.
"MR. KUNSTLER: Will you then just for the record admit that you were wrong, that I did not say documents?
"THE COURT: No, I will not admit that I was wrong because I am not wrong. If you will read the transcript - - and I don't propose to take the time -
"MR. KUNSTLER: You have read it to us, your Honor.
"THE COURT: Not all of it.
"MR. KUNSTLER: It is quite clear."
Mr. Schultz then spoke. He cited explicit sections of the transcript which conclusively demonstrated that the Court had been correct in its understanding of Mr. Kunstler's representations. Mr. Kunstler's accusations were demonstrated to be erroneous. Even Mr. Kunstler recognized that he had erred, and he apologized.
"MR. KUNSTLER: In the light of that, your Honor, I will make the admission and be quite candid and frank that then I was wrong and I will not offer 109 although I think it ought to go in. When I am wrong, I think it is proper to admit it.
"THE COURT: You were pretty sure, though, when you said that I was mistaken. You didn't use the charitable word that you just used.
"MR. KUNSTLER: Your Honor, I admit when a man is wrong, I think he has an obligation to say it and I am saying it." 2 months
THE COURT: Do you wish to be heard, Mr. Kunstler?
MR. KUNSTLER: Yes, your Honor. First of all, I make for myself the same motions that I have made for the other clients whom I have represented, with reference to your Honor's powers or lack of power and jurisdiction to impose summary contempt after the trial is over, and I make that with the same force I made it for my client.
THE COURT: I deny the motion.
MR. KUNSTLER: Then I just have a few words, your Honor.
Your Honor, I have been a lawyer since December of 1948, when I was first admitted to the bar in the state of New York. Since that time, I have practiced before, among other courts, the Supreme Court of the United States, the United States Court of Appeals for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Tenth, District of Columbia Circuits, Federal District Courts throughout a great deal of the United States, and the United States Court of Military Appeals.
In addition I have practiced in the State Courts of Texas, Tennessee, Virginia, Georgia, Louisiana, Maryland, New Jersey, Vermont, North Carolina, Florida, Mississippi, Alabama, South Dakota, Kentucky, Pennsylvania, and many others.
Until today I have never once been disciplined by any judge, federal or state, although a large part of my practice, at least for the last decade, has taken place in hostile southern courts where I was representing black and white clients in highly controversial civil rights cases.
Yesterday, for the first time in my career, I completely lost my composure in a courtroom, as I watched the older daughter of David Dellinger being rushed out of the room because she clapped her hands to acknowledge what amounted to her father's farewell statement to her.
I felt then such a deep sense of utter, futility that I could not help crying, something I had not done publicly since childhood.
I am sorry if I disturbed the decorum of the courtroom, but I am not ashamed of my tears. Neither am I ashamed of my conduct in this court, for which I am about to be punished.
I have tried with all of my heart faithfully to represent my clients in the face of what I consider - - and still consider - - repressive and unjust conduct toward them.
If I have to pay with my liberty for such representation, then that is the price of my beliefs and my sensibilities.
I can only hope that my fate does not deter other lawyers throughout the country, who, in the difficult days that lie ahead, will be asked to defend clients against a steadily increasing governmental encroachment upon their most fundamental liberties. If they are so deterred, then my punishment will have effects of such terrifying consequences that I dread to contemplate the future domestic and foreign course of this country. However, I have the utmost faith that my beloved brethren at the bar, young and old alike, will not allow themselves to be frightened out of defending the poor, the persecuted, the radicals and the militant, the black people, the pacifists, and the political pariahs of this, our common land.
But to those lawyers who may, in learning of what may happen to me, waiver, I can only say this, stand firm, remain true to those ideals of the law which even if openly violated here and in other places, are true and glorious goals, and, above all, never desert those principles of equality, justice and freedom without which life has little if any meaning.
I may not be the greatest lawyer in the world, your Honor, but I think that I am at this moment, along with my colleague, Leonard Weinglass, the most privileged.
We are being punished for what we believe in.
Your Honor, I am ready, sir, to be sentenced, and I would appreciate it if I could be permitted to remain standing at this lectern where I have spent the greater part of the past five months, while you do so.
THE COURT: The marshals will remove those who have applauded from the courtroom. Remove them from the courtroom. This circus has to end sometime. Please remove everybody who has applauded. This is not a theater. Mr. Ginsberg just did not perform, nor did any of the other singers. All of those who applauded, exclude them, please.
Mr. Kunstler, you have heard me say here, I think, on at least two occasions that not only have I never had occasion to impose a sentence for contempt of court on a lawyer, never on a witness or a party in this court, except one, and that sentence was merged, made concurrent with the sentence in the main case. So that I approach what I perceive to be my responsibility here just as unhappily as you indicated you are. I, too, have been at the bar for a long time, many years longer than you. I have practiced in the various state and federal courts throughout the land, not all, of course, but many.
I have to repeat what I have said in substance, that I have never heard a lawyer say to a judge in substance the things that you have said to me during this trial. I know you are going to say - - if I permitted you to reply you would say that I deserved them.
Well, only the record can reveal what has gone on here. You mentioned there has been mention here in this transcript, observations about the testimony of Mr. Clark. Mr. Clark wasn't kept from the witness stand. We permitted the Government to conduct a voir dire examination, which was proper procedure under existing competent authorities, and I have to repeat here what I said this morning. If Mr. Clark is upset with me, I regret it, not because of him, because I know him only casually, but because of his father, who has been my dear friend for many years, and who, as you know, has been - - has served on the Supreme Court of the United States for many years now, serving as a senior justice. I hold his mother in greatest esteem.
We decided questions here according to the law, as we perceive the law to be. As I indicated this morning, to one of the defendants, if a lawyer or a party perceives that a ruling is erroneous, you certainly, as a lawyer, know there are courts where you can proceed to have error corrected. We don't correct error doing it the way you have done.
Now, I know you, from some of the things you said here, tie in your own personal beliefs with those of your clients, and you live your clients' cases as though they are your own. Nobody disputes that anyone under the Constitution of the United States charged with a crime has a right to counsel of his choice, and if he hasn't the money to employ a lawyer, just about every state and the Government, itself, provide counsel at no cost to them. Certainly, that is the constitutional right of any citizen, or anybody who comes in here charged with a crime. But a man charged with a crime has a right only to a defense properly made, and that does not include what has gone on, the sort of thing that has gone on in this courtroom.
We hear a lot of discussion by men in high political places about crime in this country. I am going to make a rather unorthodox statement. First of all, there is a lot of crime, I know, because I have a lot of criminal cases to try, and I have tried many criminal cases. I am one of those who believes that crime, if it is on the increase, and I don't have the statistics before me, in any jurisdiction, state or federal, it is due in large part to the fact that waiting in the wings are lawyers who are willing to go beyond, to go beyond professional responsibility, professional rights, and professional duty in their defense of a defendant, and the fact that a defendant or some defendants know that such a lawyer is waiting in the wings, I think, has rather a stimulating effect on the increase in crime.
You have quoted newspapers. I have had occasion to tell you that I don't try cases in the newspapers. I don't send letters to newspapers when they praise me, and they have; and I don't send letters of criticism when they criticize me adversely. Certainly a judge's decision must be criticized. A man who takes a public place exposes himself to fair comment, but that comment should be honest and it should be in accordance with the facts as they appear from the official record.
Now, I saw, in fact it was dropped on the Clerk's desk, a xeroxed copy of an editorial in one of the great newspapers of the country - - at least I have so regarded it - - devoted to the Ramsey Clark incident. There was no mention of the fact in that editorial that a voir dire examination of Mr. Clark was conducted, and the Court after carefully listening to it - - I wouldn't expect them to have said "carefully" -- but the Court after listening to it concluded that it was not proper that he be called as a witness, but the impression given was that he wasn't allowed to come to the witness stand. He was five feet away from me, as you know. But I don't complain. That is the sort of thing that men in public place, whether they are an alderman in a big city ward, or the President of the United States, they just don't have the time to write a "Letter to the People," as some of these columns are entitled, and say, "You lied about me," or "You omitted to tell the facts."
I recall seeing quoted somewhere something spoken by Abraham Lincoln who said, "Never argue with a newspaper unless you own the newspaper." Well, I have never argued with a newspaper.
In this case, you seem to have wanted to rely on editorial comment.
I have literally thousands of editorials back there in my chambers - - I know you won't believe this - - that are complimentary about decisions I have made over the years, over the many years I have served both on the state and federal bench. And for you, the kind of lawyer you say that you are, to have sat through that Bobby Seale incident, for example, and not lifted an arm, of your chair, not lifted your hand, not lifted an arm, not spoken a word, and he could have been spoken to because he was spoken to before he assumed the witness stand as a witness after he came back to this jurisdiction to testify as a witness, not a word from you to him, and your appearance was on file as his lawyer, you spoke for him as a defendant, even if I were wrong, if I were wrong, even if the many times he called me the vile names that he called me - - I don't know how it could be proven that a man of my faith was a pig; that would be very difficult - - but there is a man who never saw me, I believe, before he came into this courtroom, but to have described me as he described me, and for you, and you represent yourself to be a leader at the Bar, and you have practiced in all of these courts that you have mentioned, you have never, never made an attempt to say something like this to him, "Bobby, hush. Cool it. Sit down now." You let him go on.
That is not going to be in my contempt certificate, because there are some things that cannot be proven as direct contempt committed in the presence of the Court. Someday, someday, I hope that his conduct, or the reason for his conduct will be demonstrated clearly, and you can't disassociate yourself from him. He was your client. I know you dispute the fact that he is now, but he was. Even in the way you describe it, he was your client at one time, and you made no effort, no effort, to have him keep from calling a Judge of the United States District Court a pig, a fascist pig, a racist pig. There wasn't any element of racism in this case except that there was one defendant, if you call that racism, who was a member of the black race. You let him continue speaking and repeating. If that is being a great lawyer, I do not share your view. I do not share your view, sir.
MR. KUNSTLER: Your Honor, I just want to say --
THE COURT: The only reason I mention the Seale episode is that I didn't want anyone here to get the impression that I was obtuse and didn't know what was going on. I didn't want any one of the ladies and gentlemen of the press to get the impression that I didn't know what was really the time of day.
MR. KUNSTLER: Your Honor, I am glad your Honor spoke because I suddenly feel nothing but compassion for you. Everything else has dropped away.
THE COURT: All right, Now, as I said earlier, in conformity with
42(a) of the Federal Rules of Criminal Procedure, Title 18, United
Code, Section 401, I certify that I saw and heard the, incidents and
which I have read here today during the trial of the case of United
of America vs. David Dellinger and others, 69 CR 180, which commenced
September 24, 1969, and continued for about four and a half months
I find that the acts, statements and conduct of Mr. William Kunstler
by me each constituted a separate contempt of this Court and that each
constituted, and by "each," I mean those as they have been numbered in
my oral observations, that each constituted a deliberate and willful
upon the administration of justice in an attempt to sabotage the
of the federal judicial system, that this misconduct, especially in a
was of so grave a character as to continually disrupt the orderly
of justice. To maintain the dignity of the Court and preserve
in the courtroom under these circumstances has been a task of utmost
Warning after warning, and admonition after admonition were given to
Mr. Kunstler. Instead of heeding them, you characterized them as
attempts to intimidate you.
I have dealt with many thousands of lawyers both as a lawyer and judge over the many years. Nobody has ever charged me with trying to intimidate, but nobody.
Isolated questions from or references to the transcript can give but a partial view of the acts, statements and conduct which I referred to orally here this morning.
I hereby, Mr. United States Attorney, make the entire record part of these proceedings.
With respect to punishment, have you finished, everything you want to say to me?
MR. KUNSTLER: Yes, your Honor, I have nothing further.
THE COURT: All right. With respect to Specification
1, Mr. Kunstler will be committed to the custody of the Attorney
of the United States or his authorized representative for a period of
month; Specification 2, 14 days; Specification 3, 3
Specification 4, 14 months, or 14 days, I beg your pardon; Specification
5, 14 days; Specification 6, 3 months; Specification 7,
3 months; Specification 8, 6 months; Specification 9, 21
days; Specification 10, 14 days; Specification 11, 7
Specification 12, 14 days; Specification 13, 14 days; Specification
14, 1 month; Specification 15, 21 days; Specification
2 months; Specification 17, 4 months; Specification 18,
month; Specification 19, 1 month; Specification 20, 6
Specification 21, 6 months; Specification 22, 4 months; Specification
23, 1 month; Specification 24, 2 months.
Mr. Kunstler, because you are counsel of record for the defendants here or some of them, on the court's own motion, the execution of the judgment of conviction entered on these several specifications will be stayed until Monday, May 4, at 9:00 o'clock in the morning, at which time, I order you to report to the United States Marshal for the Northern District of Illinois whose office is in this building.
Mr. United States Attorney, I order you to prepare the proper documents, judgment and commitment specification in accordance with what has been done here today.
MR. KUNSTLER: Your Honor, for the record, may I apply for bail pending appeal?
THE COURT: I haven't the authority to grant you bail pending appeal in the case of direct contempt committed in the presence of the court. If you want bail, they may grant it to you, I don't know, but I don't have the authority.
MR. KUNSTLER: Then there is a denial on the record? That is what I really want.
THE COURT: What did you say?
MR. KUNSTLER: I guess you are denying my motion?
THE COURT: Yes, I am denying it because I don't have the authority
grant you bail.
I am saying to you that I have stayed the execution here of the judgment until Monday, May 4, at nine o'clock.
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