Senate 5-18-64

pp. 11204, 11205

Mr. MCCLELLAN. These amendments, as I interpret them, would provide for jury trials in criminal contempt cases when requested by the defendant; in other words, if the defendant requested a jury trial, the court-under the provisions of these amendments-would be compelled to grant it.

If no jury trial were requested by the defendant, the provisions of these amendments would limit the punishment, or provide a maximum punishment that could be assessed by the court, or by the judge hearing the criminal contempt matter; and the maximum punishment under these amendments, if I correctly interpret them, would be a $300 fine or 30 days in jail.

Mr. President, I support these perfecting amendments. I do so for two reasons. I do not believe it would be constitutional to subject anyone to trial on a criminal contempt charge without recognizing and honoring the constitutional right to a trial by jury. For that reason, of course, I support the principle, and I will support these amendments.

Again, if we are going to permit a court to assess the penalty if a jury trial is not requested or granted, I believe it would be well for the law to fix the maximum punishment or penalty that a court or judge could impose. So those are two basic reasons for supporting the amendments. If the Talmadge amendments cannot be adopted in their present form, I also support them; and then I would support the amendments that are now the pending business.

I have spoken once or twice before on 'his issue. Unfortunately, on neither occasion did I finish my remarks. There is so much that can be said, because so much is involved. When we talk about the liberty of citizens and taking away

that liberty for even a limited period of time, and incarcerating a person in jail for 30 days or 45 days, we are talking about something which cannot be taken lightly, even though in a relative sense 30 days or 45 days-as compared to the lifetime of an individual-might not be a vitally important period of time.

But, Mr. President, the shame or disgrace that many good citizens would feel-in fact, every Senator would feel it If he were sentenced to jail for 30 days or 45 days for any offense-would certainly be most humiliating and would leave a mark of discredit upon the character of the one so penalized. Thus, we are dealing with human liberty.

We hear a great deal about human rights. This bill is supposed to be a bill-I say “supposed"; I do not say it is to provide for civil rights. So we hear a great deal about "civil rights."

I should like to think in terms of civil liberty and personal liberty, when we are dealing with the liberty of an individual and the question of whether he shall be free, whether he shall stay out of jail, whether he shall be placed in jail, or whether he shall be adjudged guilty of a crime. If the charge is criminal contempt, it is a crime of criminal contempt, just as larceny is a crime of larcenycrimes which the laws propose to punish by taking away the liberty of the accused, and placing him in jail.

When we start doing that, when our goal, our objective, and our declared purpose, as means of law enforcement, are to compel obedience to the orders of a court, then I believe we should not place the power, the duty, or the responsibility for the whole process in the hands of one judge.

In the first instance, the judge would become the accuser, because it is anticipated that it would be an order of the court which, it would be alleged, the accused had violated. Therefore the court which issued the order must necessarily issue the citation for contempt. The citation for contempt would be the &ccusation.

Therefore, the judge who had made the order, who claimed the defendant had violated his order, would make the accusation which would bring the defendant into court. The accusation would become the charge of the offense that the defendant was alleged to have committed. The judge who issued the charge, who made the order, and who decided that it had been violated, would issue the citation for contempt which would bring the defendant before him, to be tried.

No Member of the Senate would wish to be tried by his accuser. All of us would seek a fair and impartial trial. Taking into account the elements which compose human nature, it is rather hard to conceive that a judge who made an order and who thought the order had been violated and who issued the charge of contempt could even begin the trial with a fair and impartial attitude.

When a jury is impaneled to try a petty thief, the lawyer for the defense asks a prospective juror if he knows anything about the case, if he has heard of it, if he has any opinion about it, if he knows the defendant, and if he has an opinion about the guilt or innocence of the defendant. Then he goes even further, and asks the prospective juror, on his voir dire examination, "Will you require the Government to prove beyond a reasonable doubt the guilt of the accused before you find him guilty?"

If the prospective juror does not agree to do that, or if he says he already has an opinion, or if he says he has a prejudice in such cases, or if he indicates that he cannot be impartial in his judgment, or if he indicates that he has a preconceived idea as to the guilt of the defendant, he is held not to be a competent juror, and he can be excused from service on the jury; and it becomes the duty of the court to excuse such a prospective juror.

Unless the Talmadge amendment, or a comparable amendment dealing with this issue, is adopted-in other words, if the bill remains as it was when passed

by the House of Representatives, and if no amendment to change this provision is adopted the accused could be tried before the judge who made the accusation, who could not be impartial, who would not be impartial, and who would have a preconceived idea of the accused before the contempt citation was issued.

I believe that a person charged with violating an order of the court is entitled to as much consideration as that we accord to a petty thief. He should have a fair trial.

I do not understand why it is necessary to single out a person in this instance, and say-because he is charged with violating a court order-that he is not entitled to his constitutional right of trial by jury. There is an alleged reason for it-though not a valid reason. The reason given is that in some places, so it is claimed, it is impossible to get a jury to convict.

We can go to many places in the United States where it is difficult to get a conviction in certain cases. I have not heard anyone suggest that in areas where juries habitually turn criminals loose, or where law enforcement is weak, jury trials should be abolished. No one is offering such an amendment to the pending bill.

This particular issue is being singled out. We are asked to let one man determine whether a person shall go to jail.

Mr. President, I have not really begun my speech; but this subject moves me. To tell the truth, it really starts one thinking. We think in terms of American jurisprudence and our system of justice that requires trial by jury. When we consider it, we really begin to think about it. It makes one shudder to think what is about to happen and what will be the ultimate consequence, what the bill will lead to, if we break the barrier now in existence, and have Congress give its sanction to one-judge verdicts, with the judge as the accuser. One does not have to have a formal speech prepared in order to speak on this subject.

Mr. MILLER. Mr. President, I thank the distinguished Senator from Florida [Mr. HOLLAND] for yielding to me.

I submit and send to the desk a perfecting amendment to the pending Talmadge amendment and I ask that it be read.

The legislative clerk read as follows: On page 2, beginning with line 1, strike out all through line 8 on page 3.

On page 3 strike out all of line 9 and insert in lieu thereof:

"TITLE XI-JURY TRIALS OF CRIMINAL
CONTEMPTS"

On page 3, line 10, immediately before "In", strike out the single quote and insert in lieu thereof "Sec. 1101.".

On page 3, line 10, beginning with "for willful", strike out all through "District of Columbia" on line 13, and insert in lieu thereof: "arising under any title of this Act in

which any imprisonment has been ordered by the court".

On page 3, line 17, strike out the single quote before "This".

On page 3, line 22, strike out the single quote before "Nor".

On page 3, lines 22 and 23, strike out "or in any other provision of law".

On page 4, line 4, strike out the single quote.

On page 4, line 5, strike out "1103" and insert in lleu thereof "1102.".

On page 4, line 7, strike out "repealed." and insert in leu thereof the following: "amended by striking out the second and third provisos to the first paragraph thereof, and inserting in lieu thereof the following: 'Provided further, That in any such proceeding for criminal contempt in which any imprisonment has been ordered by the court, the accused, upon demand therefor, shall be entitled to a trial before a jury, which shall conform as near as may be to the practice in other criminal cases.'"

Mr. MILLER. Mr. President, I ask that the amendment which has just been read be ordered to lie on the table and be printed, be considered as read in order to make it eligible for consideration in the event a cloture motion should be presented.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. HOLLAND. Mr. President, a parliamentary inquiry.

The PRESIDING OFFICER. The Senator from Florida will state it.

Mr. HOLLAND. Do I understand correctly that the Miller amendment which has just been offered has been made the pending question, or that it has just gone through the formality so that it may lie on the table and be available in the event of a cloture motion?

The PRESIDING OFFICER. The amendment has been ordered to lie on the table and be printed.

Mr. MILLER. I thank the Chair.

Mr. HOLLAND. Mr. President, will the Chair kindly restate his ruling. I did not hear it.