In re Sawyer/Dissent Clark

Mr. Justice CLARK, dissenting.

While I join in the dissenting opinion of Mr. Justice FRANKFURTER, I think it appropriate to add a few words by way of emphasis. Three different fact finders, including an administrative body, the Supreme Court of Hawaii, and a United States Court of Appeals, have agreed on the facts and conclusions of fact as shown by this record. Mrs. Sawyer, while of counsel in a Smith Act case then on trial before a jury, and Jack Hall, the chief defendant in the case, each made a speech before a large public gathering sponsored by a committee for Hall's defense. In Mrs. Sawyer's speech, she charged 'that horrible and shocking things were going on at said trial; that a fair trial was impossible; that all of the rules of evidence were being scrapped so the Government could make its case; that the rules of evidence and procedure were made up as the case proceeded; and that unless the trial was stopped in its tracks certain new crimes would be created.' No one, least of all Mrs. Sawyer, denies that she said what she was charged with saying. Hawaii has declared her action gross misconduct violative of the Canons of Professional Ethics as adopted by its court.

But this Court says, strangely enough, that these facts are not 'capable of supporting the findings' that in so doing Mrs. Sawyer 'impugned the integrity of the judge presiding * *  * in the said pending case *  *  * and thus tended to also create disrespect for the courts of justice and judicial officers generally.' 41 Haw. at page 422. The principal opinion says that Mrs. Sawyer's conduct was merely an innocent general attack on the Smith Act and judicial trials held thereunder.

But this broad brush leaves the whitewash too thin. For not only Mrs. Sawyer's testimony but also the statement of her own lawyer stand out clear and unanswerable. At the initial hearing in Hawaii, Mrs. Sawyer's then counsel said that hers 'was a talk about what was going on in the Smith Act trial here in Honolulu. Now let's not fool ourselves about that.' Her present counsel has talked the Court into doing just that and in so doing has also made a fool of our judicial processes.

To say that there is no reasonable support n t he evidence for Hawaii's conclusion, as disclosed by a fair reading of the record some six and a half years later and some 5,000 miles away, is only to say that the 12 concurring officials, all of whom are trained in the law and who under oath made and passed upon these findings at trial and on appeal, arrived at a conclusion no reasonable man could reach. By thus at this late date second-guessing those constituted authorities who in regular course have decided the facts to the contrary, the Court impugns the intelligence of the 12 individuals so participating and scatters to the winds the sincere effort of the Supreme Court of Hawaii to preserve and protect its own integrity and respect as well as that of the law. I regret that the highest court in our land has today set these winds into motion-particularly in our farthest outpost-when respect for the courts, the bar, and the law, as well as for orderly procedure, is so much needed in the world.