Illinois v. Allen/Concurrence Brennan

Mr. Justice BRENNAN, concurring.

The safeguards that the Constitution accords to criminal defendants presuppose that government has a sovereign prerogative to put on trial those accused in good faith of violating valid laws. Constitutional power to bring an accused to trial is fundamental to a scheme of 'ordered liberty' and prerequisite to social justice and peace. History has known the breakdown of lawful penal authority-the feud, the vendetta, and the terror of penalties meted out by mobs or roving bands of vigilantes. It has known, too, the perversion of that authority. In some societies the penal arm of the state has reached individual men through secret denunciation followed by summary punishment. In others the solemn power of condemnation has been confided to the caprice of tyrants. Down the corridors of history have echoed the cries of innocent men convicted by other irrational or arbitrary procedures. These are some of the alternatives history offers to the procedure adopted by our Constitution. The right of a defendant to trial-to trial by jury-has long been cherished by our people as a vital restraint on the penal authority of government. And it has never been doubted that under our constitutional traditions trial in accordance with the Constitution is the proper mode by which government exercises that authority.

Lincoln said this Nation was 'conceived in liberty and dedicated to the proposition that all men are created equal'. The Founders' dream of a society where all men are free and equal has not been easy to realize. The degree of liberty and equality that exists today has been the product of unceasing struggle and sacrifice. Much remains to be done-so much that the very institutions of our society have come under challenge. Hence, today, as in Lincoln's time, a man may ask 'whether (this) nation or any nation so conceived and so dedicated can long endure.' It cannot endure if the Nation falls short on the guarantees of liberty, justice, and equality embodied in our founding documents. But it also cannot endure if we allow our precious heritage of ordered liberty to be ripped apart amid the sound and fury of our time. It cannot endure if in individual cases the claims of social peace and order on the one side and of personal liberty on the other cannot be mutually resolved in the forum designated by the Constitution. If that resolution cannot be reached by judicial trial in a court of law, it will be reached elsewhere and by other means, and there will be grave danger that liberty, equality, and the order essential to both will be lost.

The constitutional right of an accused to be present at his trial must be considered in this context. Thus there can be no doubt whatever that the governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward. Over a half century ago this Court in Diaz v. United States, 223 U.S. 442, 457 458, 32 S.Ct. 250, 254-255, 56 L.Ed. 500 (1912), approved what I believe is the governing principle. We there quoted from Falk v. United States, 15 App.D.C. 446 (1899), the case of an accused who appeared at his trial but fled the jurisdiction before it was completed. The court proceeded in his absence, and a verdict of guilty was returned. In affirming the conviction over the accused's objection that he could not be convicted in his absence, the Court of Appeals for the District of Columbia said:

'It does not seem to us to be consonant with the dictates of     common sense that an accused person *  *  * should be at      liberty, whenever he pleased, *  *  * to break up a trial      already commenced. The practical result of such a     proposition, if allowed to be law, would be to prevent any      trial whatever until the accused person himself should be      pleased to permit it. * *  * This would be a travesty of      justice which could not be tolerated. * *  * (W)e do not think      that any rule of law or constitutional principle leads us to      any conclusion that would be so disastrous as well to the      administration of justice as to the true interests of civil      liberty.

'The question is one of broad public policy, whether an     accused person, placed upon trial for crime and protected by      all the safeguards with which the humanity of our present      criminal law sedulously surrounds him, can with impunity defy      the processes of that law, paralyze the proceedings of courts      and juries and turn them into a solemn farce, and ultimately      compel society, for its own safety, to restrict the operation of the principle of      personal liberty. Neither in criminal nor in civil cases will     the law allow a person to take advantage of his own wrong.'

To allow the disruptive activities of a defendant like respondent to prevent his trial is to allow him to profit from his own wrong. The Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes.

Of course, no action against an unruly defendant is permissible except after he has been fully and fairly informed that his conduct is wrong and intolerable, and warned of the possible consequences of continued misbehavior. The record makes clear that respondent was so informed and warned in this case. Thus there can be no doubt that respondent, by persisting in his reprehensible conduct, surrendered his right to be present at the trial.

As the Court points out, several remedies are available to the judge faced with a defendant bent on disrupting his trial. He can have him bound, shackled, and gagged; he can hold him in civil or criminal contempt; he can exclude him from the trial and carry on in his absence. No doubt other methods can be devised. I join the Court's opinion and agree that the Constitution does not require or prohibit the adoption of any of these courses. The constitutional right to be present can be surrendered if it is abused for the purpose of frustrating the trial. Due process does not require the presence of the defendant if his presence means that there will be no orderly process at all. However, I also agree with the Court that these three methods are not equally acceptable. In particular, shackling and gagging a defendant is surely the least acceptable of them. It offends not only judicial dignity and decorum, but also that respect for the individual which is the lifeblood of the law.

I would add only that when a defendant is excluded from his trial, the court should make reasonable efforts to enable him to communicate with his attorney and, if possible, to keep apprised of the progress of his trial. Once the court has removed the contumacious defendant, it is not weakness to mitigate the disadvantages of his expulsion as far as technologically possible in the circumstances.

Mr. Justice DOUGLAS.

I agree with the Court that a criminal trial, in the constitutional sense, cannot take place where the courtroom is a bedlam and either the accused or the judge is hurling epithets at the other. A courtroom is a hallowed place where trials must proceed with dignity and not become occasions for entertainment by the participants, by extraneous persons, by modern mass media, or otherwise.

My difficulty is not with the basic hypothesis of this decision, but with the use of this case to establish the appropriate guidelines for judicial control.

This is a stale case, the trial having taken place nearly 13 years ago. That lapse of time is not necessarily a barrier to a challenge of the constitutionality of a criminal conviction. But in this case it should be.

There is more than an intimation in the present record that the defendant was a mental case. The passage of time since 1957, the date of the trial, makes it, however, impossible to determine what the mental condition of the defendant was at that time. The fact that a defendant has been found to understand 'the nature and object of the proceedings against him' and thus competent to stand trial does not answer the difficult questions as to what a trial judge should do with an otherwise mentally ill defendant who creates a courtroom disturbance. What a judge should do with a defendant whose courtroom antics may not be volitional is a perplexing problem which we should not reach except on a clear record. This defendant had no lawyer and refused one, though the trial judge properly insisted that a member of the bar be present to represent him. He tried to be his own lawyer and what transpired was pathetic, as well as disgusting and disgraceful.

We should not reach the merits but should reverse the case for staleness of the record and affirm the denial of relief by the District Court. After all, behind the issuance of a writ of habeas corpus is the exercise of an informed discretion. The question, how to proceed in a criminal case against a defendant who is a mental case, should be resolved only on a full and adequate record.

Our real problems of this type lie not with this case but with other kinds of trials. First are the political trials. They frequently recur in our history and insofar as they take place in federal courts we have broad supervisory powers over them. That is one setting where the question arises whether the accused has rights of confrontation that the law invades at its peril.

In Anglo-American law, great injustices have at times been done to unpopular minorities by judges, as well as by prosecutors. I refer to London in 1670 when William Penn, the gentle Quaker, was tried for causing a riot when all that he did was to preach a sermon on Grace Church Street, his church having been closed under the Conventicle Act:

'Penn. I affirm I have broken no law, nor am I Guilty of the     indictment that is laid to my charge; and to the end the      bench, the jury, and myself, with these that hear us, may      have a more direct understanding of this procedure, I desire      you would let me know by what law it is you prosecute me, and      upon what law you ground my indictment.

'Recorder. Upon the common-law.

'Penn. Where is that commonlaw?

'Rec. You must not think that I am able to run up so many     years, and over so many adjudged cases, which we call      common-law, to answer your curiosity.

'Penn. This answer I am sure is very short of my question,     for if it be common, it should not be so hard to produce.

'Rec. Sir, will you plead to your indictment?

'Penn. Shall I plead to an Indictment that hath no foundation     in law? If it contain that law you say I have broken, why     should you decline to produce that law, since it will be      impossible for the jury to determine, or agree to bring in      their verdict, who have not the law produced, by which they      should measure the truth of this indictment, and the guilt,      or contrary of my fact? 'Rec. You are a saucy fellow, speak to the Indictment.

'Penn. I say, it is my place to speak to matter of law; I am     arraigned a prisoner; my liberty, which is next to life      itself, is now concerned: you are many mouths and ears      against me, and if I must not be allowed to make the best of      my case, it is hard, I say again, unless you shew me, and the      people, the law you ground your indictment upon, I shall take      it for granted your proceedings are merely arbitrary.

'Rec. The question is, whether you are Guilty of this     Indictment?

'Penn. The question is not, whether I am Guilty of this     Indictment, but whether this Indictment be legal. It is too     general and imperfect an answer, to say it is the common-law,      unless we knew both where and what it is. For where there is     no law, there is no transgression; and that law which is not      in being, is so far from being common, that it is no law at      all.

'Rec. You are an impertinent fellow, will you teach the court     what law is? It is 'Lex non scripta,' that which many have     studied 30 or 40 years to know, and would you have me to tell      you in a moment?

'Penn. Certainly, if the common law be so hard to be     understood, it is far from being very common; but if the lord      Coke in his Institutes be of any consideration, he tells us,      That Common-law is common right, and that Common Right is the      Great Charter-Privileges *  *  *.

'Rec. Sir, you are a troublesome fellow, and it is not for     the honour of the court to suffer you to go on.

'Penn. I have asked but one question, and you have not     answered me; though the rights and privileges of every      Englishman be concerned in it.

'Rec. If I should suffer you to ask questions till to-morrow     morning, you would be never the wiser.

Penn. That is according as the answers are.

'Rec. Sir, we must not stand to hear you talk all night.

'Penn. I design no affront to the court, but to be heard in     my just plea: and I must plainly tell you, that if you will      deny me Oyer of that law, which you suggest I have broken,      you do at once deny me an acknowledged right, and evidence to      the whole world your resolution to sacrifice the privileges      of Englishmen to your sinister and arbitrary designs.

'Rec. Take him away. My lord, if you take not some course     with this pestilent fellow, to stop his mouth, we shall not      be able to do any thing to night.

'Mayor. Take him away, take him away, turn him into the     bale-dock.' The Trial of William Penn, 6 How.St.Tr. 951, 958     959.

The panel of judges who tried William Penn were sincere, law-and-order men of their day. Though Penn was acquitted by the jury, he was jailed by the court for his contemptuous conduct. Would we tolerate removal of a defendant from the courtroom during a trial because he was insisting on his constitutional rights, albeit vociferously, no matter how obnoxious his philosophy might have been to the bench that tried him? Would we uphold contempt in that situation? Problems of political indictments and of political judges raise profound questions going to the heart of the social compact. For that compact is two-sided: majorities undertake to press their grievances within limits of the Constitution and in accord with its procedures; minorities agree to abide by constitutional procedures in resisting those claims.

Does the answer to that problem involve defining the procedure for conducting political trials or does it involve the designing of constitutional methods for putting an end to them? This record is singularly inadequate to answer those questions. It will be time enough to resolve those weighty problems when a political trial reaches this Court for review.

Second are trials used by minorities to destroy the existing constitutional system and bring on repressive measures. Radicals on the left historically have used those tactics to incite the extreme right with the calculated design of fostering a regime of repression from which the radicals on the left hope to emerge as the ultimate victor. The left in that role is the provocateur. The Constitution was not designed as an instrument for that form of rough-and-tumble contest. The social compact has room for tolerance, patience, and restraint, but not for sabotage and violence. Trials involving that spectacle strike at the very heart of constitutional government.

I would not try to provide in this case the guidelines for those two strikingly different types of cases. The case presented here is the classical criminal case without any political or subversive overtones. It involves a defendant who was a sick person and who may or may not have been insane in the classical sense but who apparently had a diseased mind. And, as I have said, the record is so stale that it is now much too late to find out what the true facts really were.