U.S. Supreme Court Glasser v. United States, 315 U.S.
60 (1942) Glasser v. United
States No. 30 Argued November 13, 14,
1941 Decided January 19, 1942 315 U.S.
60 ast|>* 315 U.S.
60 CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE SEVENTH
CIRCUIT Syllabus 1. Jud.Code § 275 provides that jurors in a federal court shall
have the qualifications of jurors in the highest court of the
State. Acts of the State of Illinois providing for jury service by
women became effective before a grand jury in a federal court in
that State was drawn from a box from which the names of women had
been excluded. Under the state legislation, the making of state
lists including women could be delayed for some time later. Held, that the jury was not illegally constituted, in
view of the short time Page 315 U. S. 61 elapsed since the state law came in force, and the absence of
any showing that women's names had appeared on the state jury lists
in the counties comprising the federal district. P. 315 U. S.
64 .

															2. The record in this case shows adequately, though informally,
that the indictment was returned by the grand jury in open court.
P. 315 U. S.
65 .

															3. An indictment which is sufficiently definite to inform the
defendants of the charges against them and shows certainty to a
common intent, is good against demurrer. P. 315 U. S.
66 .

															4. Depriving the United States of lawful governmental functions
by dishonest means is a "defrauding" within the meaning of § 37 of
the Criminal Code. P. 315 U. S.
66 .

															5. A charge of conspiracy to defraud the United States of lawful
governmental functions by bribery of a Government officer is
distinct from a charge of bribery or of conspiracy to commit
bribery. P. 315 U. S.
66 .

															6. Error which might be overlooked as harmless where the case is
strong against the accused may be ground for reversal where the
question of guilt or innocence is close. P. 315 U. S.
67 .

															7. A defendant in a conspiracy case is deprived of the
assistance of counsel, contrary to the Sixth Amendment, where, over
his objection, the court appoints his counsel to represent also a
codefendant, where this is done with notice to the judge that their
interests may be inconsistent, and where the counsel's defense of
the first defendant is less effective than it might have been if he
had represented that defendant alone. P. 315 U. S.
76 .

															8. Every reasonable presumption is indulged against a waiver of
fundamental rights such as the right of the accused to have the
full and untrammeled assistance of counsel in the trial of a
criminal case. P. 315 U. S.
70 .

															9. The fact that a defendant in a criminal case is an
experienced lawyer may be a factor in determining whether he waived
his right to assistance of counsel, but it is not conclusive. P. 315 U. S.
70 .

															10. The trial judge should protect the right of an accused to
have the assistance of counsel. P. 315 U. S.
71 .

															11. The right to have the assistance of counsel is too
fundamental to be made to depend upon nice calculations by courts
of the degree of prejudice arising from its denial. P. 315 U. S.
76 .

															12. The declarations of a conspirator are not admissible against
an alleged coconspirator, who was not present when they were made,
unless there is proof aliunde connecting the latter with
the conspiracy. P. 315 U. S.
74 . Page 315 U. S. 62 13. Person connected as conspirators cannot have a new trial
because of error prejudicial to a codefendant but not to
themselves. P. 315 U. S.
76 .

															14. A verdict of conviction must be sustained if, taking the new
most favorable to the Government, there is substantial evidence to
support it. P. 315 U. S.
80 .

															15. Participation in a criminal conspiracy may be inferred from
circumstance. P. 315 U. S.
80 .

															16. Defendants in a criminal case cannot complain of error in
the introduction of reports a to which, when they were admitted in
evidence, the trial judge informed the jury that they were admitted
against another defendant only. P. 315 U. S.
81 .

															17. A district judge conducting jury trial in a criminal case
has a sound discretion to interrogate witnesses and to limit their
cross-examination. P. 315 U. S.
82 .

															18. Acts of the trial judge, complained of as lacking
impartiality, were not such as to prejudice substantial rights of
defendants. P. 315 U. S.
83 .

															19. Acts of alleged misconduct of the prosecuting attorney -- held not such as to call for reversal of convictions. P. 315 U. S.
83 .

															20. A motion for a new trial in a criminal case upon the ground
that the jury was illegally constituted must be supported by the
introduction or offer of distinct evidence; a formal affidavit, in
the absence of a stipulation that it may be accepted as proof, is
not enough, although it be uncontroverted. P. 315 U. S.
87 .

															116 F.2d 690, reversed in part; affirmed in part.

															CERTIORARI, 313 U.S. 551, in three cases, to review a judgment
sustaining convictions for conspiracy. Page 315 U. S. 63 MR. JUSTICE MURPHY delivered the opinion of the Court.

															Petitioners, together with Anthony Horton and Louis Kaplan, were
found guilty upon an indictment charging them with a conspiracy to
defraud the United States, under § 37 of the Criminal Code (R.S. §
5440; 18 U.S.C. 88). [ Footnote
1 ] Judgment was entered on the verdict and Glasser, Kretaske
and Kaplan were sentenced to imprisonment for a term of 14 months.
Roth was ordered to pay a fine of $500, and Horton was placed on
probation. On appeal, the convictions of Glasser, Kretaske and Roth
were affirmed. [ Footnote 2 ] We
brought the case here because of the important constitutional
issues involved. 313 U.S. 551.

															Glasser was the assistant United States attorney in charge of
liquor cases in the Northern District of Illinois from about March,
1935, to April, 1939. Kretaske was an assistant United States
attorney in the same district from October, 1934, until April,
1937. He assisted Glasser in the prosecution of liquor cases. After
his resignation, he entered private practice in Chicago. Roth was
an attorney in private practice. Kaplan was an automobile dealer
reputed to be engaged in the illicit alcohol traffic around
Chicago. Horton was a professional bondsman.

															The indictment was originally in two counts, but only the second
survives here, as the Government elected to Page 315 U. S. 64 proceed on that count alone at the close of its case. That
count, after alleging that, during certain periods, Glasser and
Kretaske were assistant United States attorneys for the Northern
District of Illinois, employed to prosecute all delinquents for
crimes and offenses cognizable under the authority of the United
States, and, more particularly, violations of the federal internal
revenue laws relating to liquor, charged in substance that the
defendants conspired to

															"defraud the United States of and concerning its governmental
function to be honestly, faithfully and dutifully represented in
the courts of the United States"

															in such matters "free from corruption, improper influence,
dishonesty, or fraud." The means by which the conspiracy was to be
accomplished was alleged to be by the defendants' soliciting
certain persons charged, or about to be charged, with violating the
laws of the United States, to promise or cause to be promised
certain sums to be paid or pledged to the defendants, to be used to
corrupt and influence the defendants Glasser and Kretaske, and the
defendant Glasser alone, in the performance of their and his
official duties.

															All the defendants filed a motion to quash the indictment on the
grounds (a) that the grand jury was illegally constituted because
women were excluded therefrom, and (b) that the indictment was not
properly returned in open court. Glasser, Kretaske and Roth also
filed demurrers to the indictment. The motion to quash and the
demurrers were overruled, and petitioners here renew their
objections.

															On July 1, 1939, two Acts of the State of Illinois providing for
women jurors became effective. [ Footnote 3 ] Section 275 of the Judicial Code (28 U.S.C. §
411) provides in substance that jurors in a federal court are to
have the qualifications of jurors in the highest court of the
State. Petitioners Page 315 U. S. 65 contend that the grand jury, composed entirely of men, and
summoned on August 25, 1939, was illegally constituted because, at
the time it was drawn, Illinois law required state jury lists to
contain the names of women. However, in 17 of the 18 counties
comprising the Northern District of Illinois, the county boards
could wait until September, 1939, to include women on their jury
lists. [ Footnote 4 ] Of course,
for women to serve as federal jurors in Illinois, it is not
necessary that their names appear on a county list, but we are of
opinion that, in view of the short time elapsing between the
effective date of the Illinois Acts and the summoning of the grand
jury, it was not error to omit the names of women from federal jury
lists where it was not shown that women's names had yet appeared on
the state jury lists.

															The record here adequately disposes of petitioners' contention
that there is no showing that the indictment was returned in open
court by the grand jury. It contains a placitum in regular
form which recites the convening of a regular term of the District
Court for the Eastern Division of the Northern District of
Illinois, "on the first Monday of September [1939] (it being the
twenty-ninth day of September the indictment was filed)," and
discloses the presence of the judges of that court, the marshal and
the clerk. The indictment bears the notation: "A true bill, George
A. Hancock, Foreman", and the endorsement: "Filed in open court
this 29th day of Sept., Page 315 U. S. 66 A.D.1939, Hoyt King, Clerk." Immediately following the
indictment in the record is the motion-slip discharging the
September grand jury, dated September 29, 1939, initialled by Judge
Wilkerson and containing: "The Grand Jury return 4 Indictments in
open Court. Added 10/30/39." The presence of this notation in the
record is meaningless unless the indictment in this case is one of
the four mentioned. The addition was obviously made to clarify the
indorsement of the clerk so as to show clearly the return by the
grand jury, and thus avert the technical argument here advanced.
While a formal nunc pro tunc order would have been the
more correct procedure, especially since a new term of court had
begun, we do not think that this informal clarification of the
record amounts to such error as requires reversal. Cf. Breese
v. United States, 226 U. S. 1 .

															The demurrers to the indictment were properly overruled. The
indictment is sufficiently definite to inform petitioners of the
charges against them. It shows "certainty, to a common intent." Williamson v. United States, 207 U.
S. 425 , 207 U. S. 447 .
The particularity of time, place, circumstances, causes, etc., in
stating the manner and means of effecting the object of a
conspiracy, for which petitioners contend, is not essential to an
indictment. Crawford v. United States, 212 U.
S. 183 ; Dealy v. United States, 152 U.
S. 539 . Such specificity of detail falls rather within
the scope of a bill of particulars, which petitioners requested and
received.

															The indictment charges that the United States was defrauded by
depriving it of its lawful governmental functions by dishonest
means; it is settled that this is a "defrauding" within the meaning
of § 37 of the Criminal Code. Hammerschmidt v. United
States, 265 U. S. 182 .

															It is unnecessary to explore the merits of the argument that the
indictment is defective on the ground that it Page 315 U. S. 67 charges a conspiracy to commit a substantive offense requiring
concerted action, namely, bribery, because

															"The indictment does not charge as a substantive offense the
giving or receiving of bribes; nor does it charge a conspiracy to
give or accept bribes. It charges a conspiracy to . . . defraud the
United States, the scheme of resorting to bribery being averred
only to be a way of consummating the conspiracy and which, like the
use of a gun to effect a conspiracy to murder, is purely ancillary
to the substantive offense." United States v. Manton, 107 F.2d 834, 839.

															Petitioners Glasser and Roth claim that the evidence was
insufficient to support the verdict. Kretaske makes no such
argument, but merely contends that the Government's testimony was
largely that of accomplices "to emphasize the inescapable
conclusion that the evidence against petitioner (Kretaske) was of a
borderline character." Since we are of opinion that a new trial
must be ordered as to Glasser, we do not at this time feel that it
is proper to comment on the sufficiency of the evidence against
Glasser.

															Admittedly, the case against Glasser is not a strong one. The
Government frankly concedes that the case with respect to
Glasser

															"depends in large part . . . upon a development and collocation
of circumstances tending to sustain the inferences necessary to
support the verdict."

															This is significant in relation to Glasser's contention that he
was deprived of the assistance of counsel contrary to the Sixth
Amendment. In all cases, the constitutional safeguards are to be
jealously preserved for the benefit of the accused, but especially
is this true where the scales of justice may be delicately poised
between guilt and innocence. Then error, which under some
circumstances would not be ground for reversal, cannot be brushed
aside as immaterial, since there is a real chance that it might
have provided the slight impetus which swung the scales toward
guilt. Page 315 U. S. 68 On November 1, 1939, George Callaghan entered the appearance of
himself and Glasser as attorneys for Glasser. On January 29, 1940,
William Scott Stewart entered his appearance as associate counsel
for Glasser. "Harrington & McDonnell" had entered an appearance
for Kretaske. On February 5, 1940, the day set for trial,
Harrington asked for a continuance. The motion was overruled, and
McDonnell was appointed Kretaske's attorney. On February 6,
McDonnell informed the court that Kretaske did not wish to be
represented by him. The court then asked if Stewart could act as
Kretaske's attorney. The following discussion then took place:

															"Mr. Stewart: May I make this statement about that, judge? We
were talking about it -- we were all trying to get along together.
I filed an affidavit, or I did on the behalf of Mr. Glasser,
pointing out some little inconsistency in the defense, and the main
part of it is this: there will be conversations here where Mr.
Glasser wasn't present, where people have seen Mr. Kretaske and
they have talked about, that they gave money to take care of
Glasser, that is not binding on Mr. Glasser, and there is a
divergency there, and Mr. Glasser feels that, if I would represent
Mr. Kretaske, the jury would get an idea that they are together,
and all the evidence --"

															"The Court: How would it be if I appointed you as attorney for
Kretaske?"

															"Mr. Stewart: That would be for your Honor to decide."

															"The Court: I know you are looking out for every possible
legitimate defense there is. Now, if the jury understood that,
while you were retained by Mr. Glasser, the Court appointed you at
this late hour to represent Kretaske, what would be the effect of
the jury on that?"

															"Mr. Stewart: Your Honor could judge that as well as I could.
" Page 315 U. S. 69 "The Court: I think it would be favorable to the defendant
Kretaske."

															"Mr. Glasser: I think it would be too, if he had Mr. Stewart.
That's the reason I got Mr. Stewart, but if a defendant who has a
lawyer representing him is allowed to enter an objection, I would
like to enter my objection. I would like to have my own lawyer
representing me."

															"The Court: Mr. McDonnell, you will have to stay in it until Mr.
Kretaske gets another lawyer, if he isn't satisfied with you."

															"(To Mr. Kretaske) Mr. Kretaske, if you are not satisfied with
Mr. McDonnell, you will have to hire another lawyer. We will
proceed with the selection of the jury now."

															A colloquy then ensued between the court, McDonnell and Kretaske
when the following occurred:

															"Mr. Kretaske: I can end this. I just spoke to Mr. Stewart, and
he said if your Honor wishes to appoint him, I think we can accept
the appointment."

															"Mr. Stewart: As long as the Court knows the situation. I think
there is something to the fact that the jury knows we can't control
that."

															"Mr. McDonnell: Then the order is vacated?"

															"The Court: The order appointing Mr. McDonnell is vacated, and
Mr. Stewart is appointed attorney for Mr. Kretaske."

															Glasser remained silent. Stewart thereafter represented Glasser
and Kretaske throughout the trial, and was the most active of the
array of defense counsel.

															The guarantees of the Bill of Rights are the protecting bulwarks
against the reach of arbitrary power. Among those guarantees is the
right granted by the Sixth Amendment to an accused in a criminal
proceeding in a federal court "to have the assistance of counsel
for his defense." "This is one of the safeguards deemed necessary
to insure fundamental human rights of life and liberty," and a Page 315 U. S. 70 federal court cannot constitutionally deprive an accused, whose
life or liberty is at stake, of the assistance of counsel. Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 462 , 304 U. S. 463 .
Even as we have held that the right to the assistance of counsel is
so fundamental that the denial by a state court of a reasonable
time to allow the selection of counsel of one's own choosing, and
the failure of that court to make an effective appointment of
counsel, may so offend our concept of the basic requirements of a
fair hearing as to amount to a denial of due process of law
contrary to the Fourteenth Amendment, Powell v. Alabama, 287 U. S. 45 , so
are we clear that the "assistance of counsel" guaranteed by the
Sixth Amendment contemplates that such assistance be untrammeled
and unimpaired by a court order requiring that one lawyer shall
simultaneously represent conflicting interests. If the right to the
assistance of counsel means less than this, a valued constitutional
safeguard is substantially impaired.

															To preserve the protection of the Bill of Rights for
hard-pressed defendants, we indulge every reasonable presumption
against the waiver of fundamental rights. Aetna Insurance Co.
v. Kennedy, 301 U. S. 389 ; Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U. S. 292 .
Glasser never affirmatively waived the objection which he initially
advanced when the trial court suggested the appointment of Stewart.
We are told that, since Glasser was an experienced attorney, he
tacitly acquiesced in Stewart's appointment because he failed to
renew vigorously his objection at the instant the appointment was
made. The fact that Glasser is an attorney is, of course,
immaterial to a consideration of his right to the protection of the
Sixth Amendment. His professional experience may be a factor in
determining whether he actually waived his right to the assistance
of counsel. Johnson v. Zerbst, 304 U.
S. 458 , 304 U. S. 464 .
But it is by no means conclusive. Page 315 U. S. 71 Upon the trial judge rests the duty of seeing that the trial is
conducted with solicitude for the essential rights of the accused.
Speaking of the obligation of the trial court to preserve the right
to jury trial for an accused, Mr. Justice Sutherland said that such
duty

															"is not to be discharged as a matter of rote, but with sound and
advised discretion, with an eye to avoid unreasonable or undue
departures from that mode of trial or from any of the essential
elements thereof, and with a caution increasing in degree as the
offenses dealt with increase in gravity." Patton v. United States, 281 U.
S. 276 , 281 U. S.
312 -313. The trial court should protect the right of an
accused to have the assistance of counsel.

															"This protecting duty imposes the serious and weighty
responsibility upon the trial judge of determining whether there is
an intelligent and competent waiver by the accused. While an
accused may waive the right to counsel, whether there is a proper
waiver should be clearly determined by the trial court, and it
would be fitting and appropriate for that determination to appear
upon the record." Johnson v. Zerbst, 304 U. S. 458 ,4 304 U. S.
65 .

															No such concern on the part of the trial court for the basic
rights of Glasser is disclosed by the record before us. The
possibility of the inconsistent interests of Glasser and Kretaske
was brought home to the court, but, instead of jealously guarding
Glasser's rights, the court may fairly be said to be responsible
for creating a situation which resulted in the impairment of those
rights. For the manner in which the parties accepted the
appointment indicates that they thought they were acceding to the
wishes of the court. Kretaske said the appointment could be
accepted "if your Honor wishes to appoint him [Stewart] ," and
Stewart immediately replied: "As long as the Court knows the
situation. I think there is something in the fact that the jury
knows we can't control that." The court made no effort to
reascertain Glasser's attitude or Page 315 U. S. 72 wishes. Under these circumstances, to hold that Glasser freely,
albeit tacitly, acquiesced in the appointment of Stewart is to do
violence to reality and to condone a dangerous laxity on the part
of the trial court in the discharge of its duty to preserve the
fundamental rights of an accused.

															Glasser urges that the court's appointment of Stewart as counsel
for Kretaske embarrassed and inhibited Stewart's conduct of his
defense, in that it prevented Stewart from adequately safeguarding
Glasser's right to have incompetent evidence excluded and from
fully cross-examining the witnesses for the prosecution.

															One Brantman, an accountant known to Kretaske and recommended
professionally by him to a client, testified that he gave Kretaske
$3000 on behalf of one Abosketes. He further testified that he did
not know Glasser. Stewart secured a postponement of
cross-examination for "In view of the fact that your Honor
appointed me for Mr. Kretaske, I am not prepared to
cross-examine."

															Abosketes took the stand immediately after Brantman and
testified that Brantman told him that he was about to be indicted,
and offered to "fix" the case with someone in the Federal Building
for $5000. About the time of this meeting, Glasser and investigator
Bailey were questioning one Brown, who had been convicted for
operating a still, to determine whether Abosketes was connected
with that still. Abosketes referred frequently to Glasser in his
testimony, and indicated that Glasser and Brantman were linked
together. Thus, he testified that Brantman told him "They have got
the goods on you, Mr. Glasser has got it out of Brown." When
questioned as to his knowledge of Brantman's connections, Abosketes
replied: "There was more than a fix, if indictment was stopped. He
[Brantman] knows Mr. Glasser, and that was all there was to it."
And, later: "He had connections to stop things like that, he had
connections in the Federal Building." Page 315 U. S. 73 And, again:

															"I could not be sure that this man [Brantman] was not putting a
shake on me and be honest about it. I could not go over and ask Mr.
Glasser if Mr. Brantman was able to fix him. I thought Brantman
could, though. I was kind of hoping he could. If I did not think he
could, I would not have given him the money."

															Brantman was recalled three days later. Stewart declined
cross-examination. That this decision was influenced by a desire to
protect Kretaske can reasonably be inferred from the colloquy
between the court and Stewart before sentence was imposed. At that
time, Stewart told the court that, lest his failure to
cross-examine Brantman reflect on Kretaske, the reason for his
forbearance was that he feared that Brantman would tell worse lies.
But, especially after the intervening testimony of Abosketes, a
thorough cross-examination was indicated in Glasser's interest to
fully develop Brantman's lack of reference to, or knowledge of
Glasser. Stewart's failure to undertake such a cross-examination
luminates the cross-purposes under which he was laboring.

															Glasser also argues that certain testimony, inadmissible as to
him, was allowed without objection by Stewart on his behalf because
of Stewart's desire to avoid prejudice to Kretaske. The testimony
complained of is that of Elmer Swanson, Frank Hodorowicz, Edward
Dewes, and Stanley Wasielewski as to statements made by Kretaske,
not in the presence of Glasser, and heard by them which implicated
Glasser. Glasser has red hair, and the statements made by Kretaske
were that he would have to see "Red," or send the money over to the
"redhead," etc., in connection with "fixing" cases. [ Footnote 5 ]

															Glasser contends that such statements constituted inadmissible
hearsay as to him, and that Stewart forewent Page 315 U. S. 74 this obvious objection lest an objection on behalf of Glasser
alone leave with the jury the impression that the testimony was
true as to Kretaske. The Government attacks this argument as
unsound, and, relying on the doctrine that the declarations of one
conspirator in furtherance of the objects of the conspiracy made to
a third party are admissible against his co-conspirators, Logan
v. United States, 144 U. S. 263 ,
contends that the declarations of Kretaske were admissible against
Glasser, and hence no prejudice could arise from Stewart's failure
to object. However, such declarations are admissible over the
objection of an alleged co-conspirator, who was not present when
they were made, only if there is proof aliunde that he is
connected with the conspiracy. Minner v. United States, 57
F.2d 506, and see Nudd v. Burrows, 91 U. S.
426 . Page 315 U. S. 75 Otherwise, hearsay would lift itself by its own bootstraps to
the level of competent evidence.

															Glasser urges that, independently of the statements complained
of, there is no proof connecting him with the conspiracy. Clearly
the statements were damaging. Other evidence tending to connect
Glasser with the conspiracy is rather meagre by comparison. Frank
Hodorowicz testified that Glasser apologized to him after his
indictment because he, Glasser, could do nothing for Hodorowicz.
Hodorowicz also testified that he sent a case of whiskey to Glasser
for Christmas, 1937. Victor Raubunas testified that he saw Glasser,
Kretaske and Kaplan meet on three occasions. An alcohol agent,
Dowd, testified that Glasser expelled him from the courtroom during
the trial of a libel case in which Roth represented the successful
claimant. Glasser released Raubunas and one Joppek, who were picked
up on different occasions for suspected liquor violations, without
extensive questioning. Whether testimony such as this was
sufficient to establish the participation of Glasser in the
conspiracy we need not decide. That is beside the point. The
important fact is that no objection was offered by Stewart on
Glasser's behalf to the statements complained of, and this despite
the fact that, when the court broached the possibility of Stewart's
appointment, Stewart told the court that statements of this nature
were not binding on Glasser. That this is indicative of Stewart's
struggle to serve two masters cannot seriously be doubted.

															There is yet another consideration. Glasser wished the benefit
of the undivided assistance of counsel of his own choice. We think
that such a desire on the part of an accused should be respected.
Irrespective of any conflict of interest, the additional burden of
representing another party may conceivably impair counsel's
effectiveness.

															To determine the precise degree of prejudice sustained by
Glasser as a result of the court's appointment of Page 315 U. S. 76 Stewart as counsel for Kretaske is at once difficult and
unnecessary. The right to have the assistance of counsel is too
fundamental and absolute to allow courts to indulge in nice
calculations as to the amount of prejudice arising from its denial. Cf. Snyder v. Massachusetts, 291 U. S.
97 , 291 U. S. 116 ; Tumey v. Ohio, 273 U. S. 510 , 273 U. S. 535 ; Patton v. United States, 281 U. S. 276 , 281 U. S. 292 . And see McCandless v. United States, 298 U.
S. 342 , 298 U. S. 347 .
Of equal importance with the duty of the court to see that an
accused has the assistance of counsel is its duty to refrain from
embarrassing counsel in the defense of an accused by insisting, or
indeed even suggesting, that counsel undertake to concurrently
represent interests which might diverge from those of his first
client when the possibility of that divergence is brought home to
the court. In conspiracy cases, where the liberal rules of evidence
and the wide latitude accorded the prosecution may, and sometimes
do, operate unfairly against an individual defendant, it is
especially important that he be given the benefit of the undivided
assistance of his counsel without the court's becoming a party to
encumbering that assistance. Here, the court was advised of the
possibility that conflicting interests might arise which would
diminish Stewart's usefulness to Glasser. Nevertheless, Stewart was
appointed as Kretaske's counsel. Our examination of the record
leads to the conclusion that Stewart's representation of Glasser
was not as effective as it might have been if the appointment had
not been made. We hold that the court thereby denied Glasser his
right to have the effective assistance of counsel, guaranteed by
the Sixth Amendment. This error requires that the verdict be set
aside and a new trial ordered as to Glasser.

															But this error does not require that the convictions of the
other petitioners be set aside. To secure a new trial, they must
show that the denial of Glasser's constitutional rights prejudiced
them in some manner, for where error Page 315 U. S. 77 as to one defendant in a conspiracy case requires that a new
trial be granted him, the rights of his codefendants to a new trial
depend upon whether that error prejudiced them. Agnello v.
United States, 269 U. S. 20 ; United States v. Socony-Vacuum Oil Co., 310 U.
S. 150 ; Rossi v. United States, 278 F. 349; Belfi v. United States, 259 F. 822; Browne v. United
States, 145 F. 1; Dufour v. United States, 37
App.D.C. 497. Kretaske does not contend that he was prejudiced by
the appointment, and we are clear from the record that no prejudice
is disclosed as to him. Roth argues the point, but he was
represented throughout the case by his own attorney. We fail to see
that the denial of Glasser's right to have the assistance of
counsel affected Roth.

															Turning now to the contentions of Kretaske and Roth, we are
clear that substantial evidence supports the verdict against both.
As noted before, Kretaske does not raise the point other than to
mention that the testimony against him was largely that of
accomplices and unsavory characters. The short answer to this is
that the credibility of a witness is a question for the jury.

															The evidence against Roth discloses the following salient facts.
Elmer Swanson, Clem Dowiat and Anthony Hodorowicz were arrested in
connection with a still on Stony Island Avenue. Frank Hodorowicz,
the head of the Hodorowicz crowd, arranged a meeting with Kretaske
at his hardware store to "take care" of the case. Horton was
present, and Kretaske told the group that there "was a lot of heat"
on the case, but that it could be arranged so that nobody "would go
to jail" for $1200, part of which "Red" was to get. A downpayment
of $500 was made. When a lawyer was sought, Kretaske referred the
prospective defendants to Roth. He represented them at the hearing
before the Commissioner, which was continued at the request of
Glasser. After an indictment was returned, Roth appeared for trial
to find that the case had Page 315 U. S. 78 been stricken from the docket with leave to reinstate it. The
defendants were never brought to trial. None of the Hodorowiczes or
their associates paid Roth for his services. Roth testified that he
received his fee from Kretaske

															In June, 1938, Glasser secured two indictments -- one against
Frank, Mike, and Peter Hodorowicz and Clem Dowiat and the other
against Frank and Peter Hodorowicz and Dowiat -- for the sale of
illicit alcohol. Frank paid Kretaske $250 after the indictments.
Kretaske later told him that nothing could be done, as investigator
Bailey was pressing Glasser. Frank then went to see Roth, who, with
Kretaske, went to see Glasser. Roth later told Frank that nothing
could be done, and suggested that he get an attorney and prepare to
defend himself. Roth's explanation of this was that he went to
Glasser to learn the latter's attitude toward clemency for Frank,
and that he suggested the retention of two lawyers, one to defend
Frank and the other to represent the remaining defendants. Frank
dispensed with Roth's services, and was represented at the trial by
one Hess. Frank paid Roth $50, but this was in connection with
substituting some securities on his bond.

															Edward Dewes had been associated with the defendant Kaplan in a
still at Spring Grove. That case was twice presented to a grand
jury by Glasser, but withdrawn on each occasion. Two days before it
was presented a third time, the defendant Horton told Dewes that
Kretaske wished to see him. Dewes went to Kretaske's office and
paid him $100 so that he would not be indicted. Dewes was no-billed
in that case. Dewes was also involved in a still on the farm of one
Beisner. It was raided, and several were arrested. Dewes, Victor
Raubunas and Edward Farber asked Horton to "fix" that case, but,
when his price was thought too high, Farber, who had known Kretaske
for some time, took Dewes and Raubunas to Kretaske's Page 315 U. S. 79 office. Kretaske offered to take care of the case for $1200.
Raubunas paid $300, and they were told they would need no lawyer at
the preliminary hearing. Eventually Raubunas, Dewes and Beisner
were indicted. Dewes thereafter paid Kretaske $275 to "fix" his
case. Kretaske referred the matter to Roth, who represented Dewes
throughout his trial. Dewes testified that he neither retained nor
paid Roth.

															Paul Svec, an associate of one Yarrio, was arrested in 1937 for
a liquor violation. Horton arranged his bond. In Svec's presence,
Horton picked up Kretaske and Yarrio. They told Svec not to worry.
He was thereafter indicted and convicted. While at liberty pending
an appeal, he was again arrested. This time, he called Glasser,
and, according to the latter, offered him money. The following
morning, Glasser interrogated Svec in the hearing of a secreted
agent of the Federal Bureau of Investigation and secured admissions
that Svec had never paid Glasser money or received any promises
from him, and that the call had been at the instigation of the
arresting investigators. Svec testified that Roth told him that he
"stood up o.k." under Glasser's questioning. Svec was discharged at
the Commissioner's hearing.

															Glasser prosecuted Leo Vitale for the operation of a still. He
was convicted and received a sentence of one hour in the custody of
the marshal. Vitale's wife, Rose, was the claimant in a subsequent
libel action against a car allegedly used to transport illicit
liquor. The case was referred to Roth by Kretaske. Roth informed
the court that Vitale was "o. k." and that the car was not used for
illegal purposes. As was the custom, the case was tried on the
agent's report. It was dismissed. Investigator Dowd later informed
Glasser that he had heard that Vitale had boasted that "he got out
of this for nine hundred dollars."

															In April 1938, Edward and William Wroblewski were indicted in
the Northern District of Indiana. They engaged Page 315 U. S. 80 Roth as their counsel. They did not remember how they met Roth.
When asked by the court if anyone recommended Roth to him, Edward
answered: "No, sir, I don't remember whether it was a rumor about
his name." According to Alexander Campbell, an assistant United
States attorney in that district, Roth appeared in his office in
September, 1938, and asked if the Wroblewskis had been indicted.
Campbell replied that he did not know offhand, but would check the
files. Roth then asked, if the files showed no indictment, whether
some arrangement could be made so that no indictment would be
returned. He offered Campbell $500 or $1000. When Campbell refused,
Roth said: "Well, that is the way we handle cases in Chicago
sometimes." The Wroblewskis were convicted. Subsequently, Roth
asked Campbell to use his influence to stop the investigation in
Chicago by Bailey which resulted in the instant case.

															It is not for us to weigh the evidence or to determine the
credibility of witnesses. The verdict of a jury must be sustained
if there is substantial evidence, taking the view most favorable to
the Government, to support it. United States v. Manton, 107 F.2d 834, 839, and cases cited. Participation in a criminal
conspiracy need not be proved by direct evidence; a common purpose
and plan may be inferred from a "development and a collocation of
circumstances." United States v. Manton, supra. We are
clear that, from the circumstances outlined above, the jury could
infer the existence of a conspiracy and the participation of Roth
in it. Roth's statements to Campbell in the Wroblewski matter, his
suggestion to Frank Hodorowicz that he should get a lawyer and
prepare to defend himself when the case could not be "fixed," the
fact that he received no fees from the Hodorowiczes with the
exception of $50 in connection with Frank's bond, Dewes' testimony
that he neither retained nor paid Roth, Roth's commendation of
Svec's bearing under Glasser's Page 315 U. S. 81 interrogation, all furnish the necessary support for the jury's
verdict.

															The objections of Kretaske and Roth with regard to the admission
of certain evidence are without merit. The reports of investigators
of the Alcohol Tax Unit on stills at Western Avenue and at Spring
Grove, operated by the defendant Kaplan and his associates, were
admitted as Government exhibits 81A and 113. Each contained
statements taken from prospective witnesses by the investigators,
and each gave a description of the prospective defendants. Kaplan
was referred to as of Jewish descent, a bootlegger by reputation,
and mention was made of the arrest of Kaplan and Edward Dewes in
connection with the killing of one Pinna. At the time each report
was admitted, the trial judge informed the jury that it was
admitted only against Glasser, and continued:

															"At some further stage of the proceedings, I may advise you with
reference to its competency as to the other defendants, but, for
the time being, it will be admissible only against the defendant
Glasser."

															The record before us contains no indication that the jury was
later informed that the exhibits were evidence against the
defendants other than Glasser. The claim of Kretaske and Roth, that
the admission of these reports was prejudicial to Kaplan and that
they are entitled to take advantage of that error, ignores the fact
that they were admitted against Glasser alone.

															No reversible error was committed by overruling objections to
the testimony of Alexander Campbell with relation to his dealings
with Roth. Trial judges have a measure of discretion in allowing
testimony which discloses the purpose, knowledge, or design of a
particular person. Butler v. United States, 53 F.2d 800;
Simpkins v. United States, 78 F.2d 594, 598. We do not think
the bounds of that discretion were exceeded here. The statements of
Roth were not in furtherance of the conspiracy, but they Page 315 U. S. 82 did tend to connect Roth with it by explaining his state of
mind.

															The judge conducting a jury trial in a federal court is "not a
mere moderator, but is the governor of the trial for the purpose of
assuring its proper conduct." Quercia v. United States, 289 U. S. 466 , 289 U. S. 469 .
Upon him rests the responsibility of striving for that atmosphere
of perfect impartiality which is so much to be desired in a
judicial proceeding. Petitioners contend that the trial judge made
remarks prejudicial to them, committed acts of advocacy, questioned
them in a hostile manner, unduly limited cross-examination, and in
general failed to maintain an impartial attitude. Various incidents
in support of those contentions are brought to our attention.

															The court did interrogate several witnesses, but, in the main,
such interrogation was within its power to elicit the truth by an
examination of the witnesses. United States v. Gross, 103
F.2d 11; United States v. Breen, 96 F.2d 782. In asking
Anthony Hodorowicz whether there had been a full disclosure of his
connection with the Stony Island still when he appeared before
Judge Woodward, the court obviously was under a misapprehension of
the nature of the appearance. It was simply for the purpose of
arraignment, and, of course, no testimony was offered. Much is made
of this, but, at the time, no one attempted to explain to the court
the nature of the appearance. Stewart later brought out on
cross-examination that it was only an arraignment, and that there
was no necessity for testimony on that day.

															After the testimony of Abosketes, the court read into the record
the fact that Abosketes was indicted in Wisconsin in 1936 and 1938,
and that he pleaded guilty to one indictment and that the other was
dismissed. It is, of course, improper for a judge to assume the
role of a witness, but we cannot here conclude that prejudicial
error Page 315 U. S. 83 resulted. Abosketes had briefly referred to his troubles in
Wisconsin in his testimony.

															The alleged undue limitation of cross-examination merits scant
attention. The extent of such examination rests in the sound
discretion of the trial court. Alford v. United States, 282 U. S. 687 . We
find no abuse of that discretion.

															Perhaps the court did not attain at all times that thoroughgoing
impartiality which is the ideal, but our examination of the record
as a whole leads to the conclusion that the substantial rights of
the petitioners were not affected. The trial was long and the
incidents relied on by petitioners few. We must guard against the
magnification on appeal of instances which were of little
importance in their setting. Cf. United States v. Socony-Vacuum
Oil Co., 310 U. S. 150 , 310 U. S. 240 ; Goldstein v. United States, 63 F.2d 609; United States
v. Warren, 120 F.2d 211.

															Separate consideration of the numerous instances of alleged
prejudicial misconduct on the part of the prosecuting attorney
would unduly extend this opinion. Suffice it to say that, after due
consideration, we conclude that no one instance, nor the
combination of them all, constitutes reversible error.

															All the petitioners contend that they were denied an impartial
trial because of the alleged exclusion from the petit jury panel of
all women not members of the Illinois League of Women Voters. In
support of their motions for a new trial, Glasser and Roth filed
affidavits which are the basis of petitioners' present contentions.
Kretaske did not file an affidavit, but he urges the point
here.

															Glasser swore on information and belief that all the names of
women placed in the box from which the panel was drawn were taken
from a list furnished the clerk of the court by the Illinois League
of Women Voters, and prepared Page 315 U. S. 84 exclusively from its membership, that the women on that list had
attended "jury classes whose lecturers presented the views of the
prosecution," and that women not members of the League, but
otherwise qualified, were systematically excluded, by reason of
which affiant

															"did not have a trial by a jury free from bias, prejudice, and
prior instructions, and, as a result thereof, the jury was
disqualified and this affiant's rights were prejudiced in that he
was deprived of a trial by jury guaranteed to him by the laws and
the constitution of the United States of America, and particularly
the 5th and 6th amendment, all of which he offers to prove."

															The source of Glasser's information was stated to be a then
current article, "Women and the Law," in the American Bar
Association Journal for April, 1940 (Vol. 26, No. 4). Roth's
affidavit merely gave Glasser as his source of information, and
made no offer of proof. The court overruled the motions for a new
trial. The record discloses that the jury was composed of six men
and six women.

															Since it was first recognized in Magna Carta, trial by jury has
been a prized shield against oppression, but, while proclaiming
trial by jury as "the glory of the English law," Blackstone was
careful to note that it was but a "privilege." Commentaries, Book
3, p. 379. Our Constitution transforms that privilege into a right
in criminal proceedings in a federal court. This was recognized by
Justice Story:

															"When our more immediate ancestors removed to America, they
brought this great privilege [trial by jury in criminal cases] with
them, as their birthright and inheritance, as a part of that
admirable common law which had fenced round and interposed barriers
on every side against the approaches of arbitrary power. It is now
incorporated into all our State constitutions as a fundamental
right, and the Constitution of the United States would have been
justly obnoxious to the most conclusive Page 315 U. S. 85 objection if it had not recognized and confirmed it on the most
solemn terms."

															2 Story, Const. § 1779.

															Lest the right of trial by jury be nullified by the improper
constitution of juries, the notion of what a proper jury is has
become inextricably intertwined with the idea of jury trial. When
the original Constitution provided only that "The trial of all
crimes, except in cases of impeachment, shall be by jury,"
[ Footnote 6 ] the people and
their representatives, leaving nothing to chance, were quick to
implement that guarantee by the adoption of the Sixth Amendment
which provides that the jury must be impartial.

															For the mechanics of trial by jury, we revert to the common law
as it existed in this country and in England when the Constitution
was adopted. Patton v. United States, 281 U.
S. 276 . But, even as jury trial, which was a privilege
at common law, has become a right with us, so also, whatever
limitations were inherent in the historical common law concept of
the jury as a body of one's peers do not prevail in this country.
Our notions of what a proper jury is have developed in harmony with
our basic concepts of a democratic society and a representative
government. For

															"It is part of the established tradition in the use of juries as
instruments of public justice that the jury be a body truly
representative of the community." Smith v. Texas, 311 U. S. 128 , 311 U. S.
130 .

															Jurors in a federal court are to have the qualifications of
those in the highest court of the State, and they are to be
selected by the clerk of the court and a jury commissioner. §§ 275,
276 Jud.Code; 28 U.S.C. §§ 411, 412. This duty of selection may not
be delegated. United States v. Murphy, 224 F. 554; In
re Petition For Special Grand Jury, 50 F.2d 973. And, its
exercise must always Page 315 U. S. 86 accord with the fact that the proper functioning of the jury
system, and, indeed, our democracy itself, requires that the jury
be a "body truly representative of the community," and not the
organ of any special group or class. If that requirement is
observed, the officials charged with choosing federal jurors may
exercise some discretion to the end that competent jurors may be
called. But they must not allow the desire for competent jurors to
lead them into selections which do not comport with the concept of
the jury as a cross-section of the community. Tendencies, no matter
how slight, toward the selection of jurors by any method other than
a process which will insure a trial by a representative group are
undermining processes weakening the institution of jury trial, and
should be sturdily resisted. That the motives influencing such
tendencies may be of the best must not blind us to the dangers of
allowing any encroachment whatsoever on this essential right. Steps
innocently taken may, one by one, lead to the irretrievable
impairment of substantial liberties.

															The deliberate selection of jurors from the membership of
particular private organizations definitely does not conform to the
traditional requirements of jury trial. No matter how
high-principled and imbued with a desire to inculcate public virtue
such organizations may be, the dangers inherent in such a method of
selection are the more real when the members of those
organizations, from training or otherwise, acquire a bias in favor
of the prosecution. The jury selected from the membership of such
an organization is then not only the organ of a special class, but,
in addition, it is also openly partisan. If such practices are to
be countenanced, the hard-won right of trial by jury becomes a
thing of doubtful value, lacking one of the essential
characteristics that have made it a cherished feature of our
institutions. Page 315 U. S. 87 So, if the picture in this case actually is as alleged in
Glasser's affidavit, we would be compelled to set aside the trial
court's denial of the motion for a new trial as a clear abuse of
discretion, and order a new trial for all the petitioners. But,
from the record before us, we must conclude that petitioners'
showing is insufficient. The Government did not controvert the
affidavits by counteraffidavits or formal denial, and it does not
appear from the record that any argument was heard on them. From
this, petitioners argue that the allegations of the affidavits are
to be taken as true for the purpose of the motion. However, this is
not a case where the prosecution has impliedly, Neal v.
Delaware, 103 U. S. 370 , or
actually, Hale v. Kentucky, 303 U.
S. 613 , stipulated that affidavits in support of a
motion alleging the improper constitution of a jury may be accepted
as proof. In the absence of such a stipulation, it is incumbent on
the moving party to introduce, or to offer, distinct evidence in
support of the motion; the formal affidavit alone, even though
uncontroverted, is not enough. Smith v. Mississippi, 162 U. S. 592 ; Tarrance v. Florida, 188 U. S. 519 ; cf. Brownfield v. South Carolina, 189 U.
S. 426 . Glasser, in his affidavit, offered to prove the
allegations contained therein, but the record is barren of any
actual tender of proof on his part. Furthermore, there is no
indication that the court refused to entertain such an offer, if it
were, in fact, made. Roth did not even make an offer of proof in
his affidavit, and Kretaske did not file one. While it is error to
refuse to hear evidence offered in support of allegations that a
jury was improperly constituted, Carter v. Texas, 177 U. S. 442 ,
there is, and, on the state of this record, can be, no assertion
that such error was here committed. The failure of petitioners to
prove their contention is fatal.

															We conclude that the conviction of Glasser must be set aside and
the cause as to him remanded to the District Page 315 U. S. 88 Court for the Eastern Division of the Northern District of
Illinois for a new trial. The convictions of petitioners Kretaske
and Roth are in all respects upheld. No. 30, reversed. Nos. 31 and 32, affirmed. MR. JUSTICE JACKSON took no part in the consideration or
decision of these cases.

															* Together with No. 31, Kretaske v. United States, and
No. 32, Roth v. United States, also on writs of
certiorari, 313 U.S. 551, to the Circuit Court of Appeals for the
Seventh Circuit.

															[ Footnote 1 ]

															"If to or more person conspire either to commit any offense
against the United States, or to defraud the United States in any
manner or for any purpose, and one or more of such parties do any
act to effect the object of the conspiracy, each of the parties to
such conspiracy shall be fined not more than $10,000, or imprisoned
not more than two years, or both."

															[ Footnote 2 ]

															116 F.2d 690.

															[ Footnote 3 ]

															Ill.Rev.Stat., 1939, c. 78, §§ 1 and 25.

															[ Footnote 4 ]

															Section 1 of Chapter 78 of the Illinois Revised Statutes, 1939,
applies to counties not having jury commissioners (into which class
the 17 counties fall), and provides:

															"The county board of each county shall, at or before the time of
its meeting, in September in each year, or at any time thereafter,
when necessary for the purpose of this Act, make a list of
sufficient number, not less than one-tenth of the legal voters of
each sex of each town or precinct of the County, giving the place
of residence of each name an the list, to be known as a jury
list."

															[ Footnote 5 ]

															Elmer Swanson testified that, when money was paid to Kretaske in
connection with the Stony Island still case, Kretaske said that
part of it would go to "Red or Dan." The witness understood this to
refer to Glasser.

															Frank Hodorowicz testified that he gave $800 in currency to
Kretaske to secure favorable action with regard to a still at 124
East 118th Place. Kretaske told Frank he "had to deliver the money
to Red." Hodorowicz knew this meant Glasser. Frank attempted to
"fix" a case for Albina Zarrattini through Kretaske, who declined
after "he talked to Red" because Zarrattini talked too much.

															After Frank Hodorowicz was himself indicted, he went to Kretaske
to "fix" his case. Kretaske told him there was "a lot of heat" on
the case, and "They got Glasser over a barrel, he can't do
anything. He has to put you in jail."

															When Edward Dewes gave Kretaske $100 so that he would not be
indicted in connection with a still at Spring Grove, Kretaske told
him "he would send it over to the red-head in the Federal
Building." The witness knew this meant Glasser. Dewes also
testified that Kretaske told him that he, Kretaske, had resigned
from the United States attorney's office under pressure, and that,
"for holding the bag," he was to receive favors from the
"red-head."

															Stanley Wasielewski testified that he heard Kretaske tell
Stanley Slesur that "I will take care of everything between me and
the redhead." Both Wasielewski and Slesur were involved in a still
at Downers Grove.

															[ Footnote 6 ]

															Const., Art. III, § 2, cl. 3.

															MR. JUSTICE FRANKFURTER:

															The CHIEF JUSTICE and I are of opinion that the conviction of
Glasser, as well as that of his codefendants, should stand.

															It is a commonplace in the administration of criminal justice
that the actualities of a long trial are too often given a
meretricious appearance on appeal; the perspective of the living
trial is lost in the search for error in a dead record. To set
aside the conviction of Glasser (a lawyer who served as an
Assistant United States Attorney for more than four years) after a
trial lasting longer than a month, on the ground that he was denied
the basic constitutional right "to have the assistance of counsel
for his defence," is to give fresh point to this regrettably
familiar phenomenon. For Glasser himself made no such claim at any
of the critical occasions throughout the proceedings. Neither when
the judge appointed Stewart to act as counsel for both Kretaske and
Glasser, nor at any time during the long trial, nor in his motions
to set aside the verdict and to arrest judgment, nor in his plea to
the court before sentence was passed, nor in setting forth his
grounds for appeal, did Glasser assert, or manifest in any way a
belief, that he was denied the effective assistance of counsel. Not
until twenty weeks after Stewart had become counsel for the
codefendant Kretaske, and fifteen weeks after the trial had ended,
did Glasser discover that he had been Page 315 U. S. 89 deprived of his constitutional rights. This was obviously a
lawyer's afterthought. It does not promote respect for the Bill of
Rights to turn such an afterthought into an imaginary injury that
is reflected nowhere in the contemporaneous record of the trial,
and make it the basis for reversal.

															The guarantees of the Bill of Rights are not abstractions.
Whether their safeguards of liberty and dignity have been infringed
in a particular case depends upon the particular circumstances. The
fact that Glasser is an attorney, of course, does not mean that he
is not entitled to the protection which is afforded all persons by
the Sixth Amendment. But the fact that he is an attorney with
special experience in criminal cases, and not a helpless
illiterate, may be -- as we believe it to be here -- extremely
relevant in determining whether he was denied such protection.

															In this light, what does the record show? Before the trial got
under way, the trial judge was presented with a problem created by
the inability of one of Kretaske's lawyers to try the case in his
behalf. Kretaske was dissatisfied with his other lawyer, who
professed to be unfamiliar with the many details of the case. Upon
Kretaske's motion for a continuance, the judge was faced with the
difficulty of avoiding either delay of the trial or an undesirable
severance as to Kretaske. All the defendants, including Glasser,
and their counsel were present in court. The judge asked whether
Stewart, who had been retained by Glasser, would be prepared to act
also for Kretaske. The record gives no possible ground for any
inference other than that this suggestion came from the judge as a
fair and disinterested proposal to solve a not unfamiliar trial
problem. It is not, and indeed could not be, contended that the
judge's suggestion, addressed to the consideration of the
defendants, was not wholly proper. And so, Page 315 U. S. 90 when Stewart raised the question of a possible conflict of
interest, and Glasser himself objected, saying "I would like to
have my own lawyer representing me," the judge neither remonstrated
nor argued. He promptly dropped his suggestion and directed
Kretaske's other lawyer, who was present but with whom Kretaske was
dissatisfied, to stay in the case until Kretaske could hire someone
to his satisfaction. The footnote sets forth the full text of this
episode. [ Footnote 2/1 ]

															There ensued a long discussion relating to the representation of
Kretaske. During this discussion, the judge never Page 315 U. S. 91 again adverted to his original suggestion that Stewart also
represent Kretaske. Kretaske interrupted, and there then occurred
in Glasser's presence what is now made the basis for reversal:

															"Mr. Kretaske: I can end this. I just spoke to Mr. Stewart, and
he said if your Honor wishes to appoint him, I think we can accept
the appointment."

															"Mr. Stewart: As long as the Court knows the situation. I think
there is something to the fact that the jury knows we can't control
that."

															"Mr. McDonnell: Then the order is vacated?"

															"The Court: The order appointing Mr. McDonnell is vacated and
Mr. Stewart is appointed attorney for Mr. Kretaske."

															It is clear, therefore, that this arrangement was voluntarily
assumed by the parties, and was not pressed upon them by the judge.
Glasser, who was present, raised no objection, and made no
comment.

															The requirement that timely objections be made to prejudicial
rulings of a trial judge often has the semblance of traps for the
unwary and uninformed. But Glasser was neither unwary nor
uninformed. His experience in the prosecution of criminal cases
makes his silence here most significant. Nor was this the last
opportunity he had to indicate that embarrassment was being caused
him by Stewart's representation of Kretaske, let alone that he
deemed it a denial of his constitutional rights. If he were
laboring under a handicap, he would have made it known at the times
when he felt it most -- during the long course of the trial, in his
motions for new trial and in arrest of judgment, in his extended
plea to the court before sentence was passed, and finally when, on
April 26, 1940, over his own signature, he gave twenty grounds for
appeal but did not mention this one. The long period of
uninterrupted silence concerning his after-discovered injury
negatives its existence. We find it difficult to know what
acquiescence Page 315 U. S. 92 in a judge's ruling could be if this record does not show it.
[ Footnote 2/2 ]

															A fair reading of the record thus precludes the inference that
the judge forced upon Glasser a situation which hobbled him in his
defense. To be sure, he did say at first that he would like his
lawyer to represent him alone. But he plainly acquiesced in the
arrangement which, after consultation at the defense table, was
proposed to the trial judge and which the judge accepted. A
conspiracy trial presents complicated questions of strategy for the
defense. There are advantages and disadvantages in having separate
counsel for each defendant or a single counsel for more than one.
Joint representation is a means of insuring against reciprocal
recrimination. A common defense often gives strength against a
common attack. These considerations could not have escaped a lawyer
of Glasser's experience. His thorough acquiescence in the
proceedings cannot be reconciled with a denial of his
constitutional rights.

															A belated showing that Glasser was actually prejudiced by the
judge's action is now attempted. This has two aspects: (1)
Stewart's failure to cross-examine the witness Brantman, and (2)
his failure to make objections on behalf of Glasser to the
admission of certain evidence. Page 315 U. S. 93 (1) The Brantman episode evaporates upon examination. His only
testimony relating to Glasser was that he did not know him. This
was brought out fully and distinctly on direct examination.
[ Footnote 2/3 ] That it had been
amply established, Glasser himself recognized in his address to the
court before sentence. It is difficult to understand how
cross-examination would have been of any further benefit to
Glasser. In any event, the record shows that Stewart abstained from
cross-examining Brantman not because he felt himself inhibited by
any conflict of interest, but because, as he told the judge after
verdict, he thought that, on cross-examination, Brantman "would be
telling worse lies."

															(2) It is said that Stewart's failure to object, on behalf of
Glasser, to certain evidence, in itself, proves that Stewart felt
himself restricted -- wholly regardless of the admissibility of
such evidence. No evidence inadmissible against Glasser is
avouched. Indeed, we are told that it is "beside the point" that
the evidence is admissible. Can it be that a lawyer who fails to
make frivolous objections to admissible evidence is thereby denying
his client the constitutional right to the assistance of
counsel?

															[ Footnote 2/1 ]

															"Mr. Stewart: May I make this statement about that, judge? We
were talking about it -- we were all trying to get along together.
I filed an affidavit, or I did on the behalf of Mr. Glasser,
pointing out some little inconsistency in the defense, and the main
part of it is this: there will be conversations here where Mr.
Glasser wasn't present, where people have seen Mr. Kretaske and
they have talked about, that they gave money to take care of
Glasser, that is not binding on Mr. Glasser, and there is a
divergency there, and Mr. Glasser feels that, if I would represent
Mr. Kretaske, the jury would get an idea that they are together,
and all the evidence --"

															"The Court: How would it be if I appointed you as attorney for
Mr. Kretaske?"

															"Mr. Stewart: That would be for your Honor to decide."

															"The Court: I know you are looking out for every possible
legitimate defense there is. Now, if the jury understood that,
while you were retained by Mr. Glasser, the Court appointed you at
this late hour to represent Kretaske, what would be the effect of
the jury on that?"

															"Mr. Stewart: Your Honor could judge that as well as I
could."

															"The Court: I think it would be favorable to the defendant
Kretaske."

															"Mr. Glasser: I think it would be too, if he had Mr. Stewart.
That's the reason I got Mr. Stewart, but if a defendant who has a
lawyer representing him is allowed to enter an objection, I would
like to enter my objection. I would like to have my own lawyer
representing me."

															"The Court: Mr. McDonnell, you will have to stay in it until Mr.
Kretaske gets another lawyer, if he isn't satisfied with you. (To
Mr. Kretaske) Mr. Kretaske, if you are not satisfied with Mr.
McDonnell, you will have to hire another lawyer. We will proceed
with the selection of the jury now."

															[ Footnote 2/2 ]

															Stewart was designated to represent Kretaske on February 6,
1940, when the trial began. The jury brought in its verdict on
March 8. The motions for new trial and in arrest of judgment were
denied on April 23, and, on the same day, the defendants were
sentenced. On April 26, Glasser filed a notice setting forth twenty
grounds of appeal without suggesting that he had been denied his
right to the assistance of counsel. On June 27, Glasser and the two
other petitioners filed a "joint and several assignment of errors,"
for the first time asserting that:

															"The court erred in appointing the employed counsel of defendant
Daniel D. Glasser to represent defendant Norton I. Kretaske, to the
prejudice of the defendants."

															[ Footnote 2/3 ]

															"Q. Do you know Mr. Glasser?"

															"A. No, sir."

															"Q. Did you ever see him before the time you got this
money?"

															"A. I have seen him, I think I might have been introduced to the
man once, but I don't think it was before I got that money."

															"Q. You never had any conversation with him in any event?"

															"A. No, sir."

															"Q. What?"

															"A. No, sir. "