Fisher v. Pace/Dissent Murphy
Mr. Justice MURPHY, dissenting.

Petitioner told the jury three times, without objection, that his client was entitled to compensation for one hundred and twenty-five weeks. He then began discussion of the 'average weekly compensation,' and the Court told him that the jury was 'not interested in dollars and cents.' To this ruling he excepted, believing that the amount of possible recovery should be considered by the jury. He then repeated what he had said three times before, without objection, on a different subject, and was told that he shouldn't 'mess with' the court. Quite naturally, he objected to the court's conduct; Texas decisions make it clear that remarks 'calculated to reflect upon the counsel and prejudice his client's case with the jury * * * constitute reversible error.' Dallas Consol. Electric St. R. Co. v. McAllister, 41 Tex.Civ.App. 131, 137, 90 S.W. 933, 936. But petitioner was held in contempt. And as he objected, his penalty was successively raised. Finally the court told the sheriff: 'Don't let him stand there. Take him out.'

A trial judge must be given wide latitude in punishing interference with the orderly administration of justice. See Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405; Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767. But the summary nature of contempt proceedings, the risk of imprisonment without jury, trial, or full hearing, make this the most drastic weapon entrusted to the trial judge. To sanction the procedure when it is patent that there has been no substantial interference with the trial, when a judge has used his position and power to successively increase the penalty for simple objections, is, I believe, a denial of due process of law. The contempt power is an extraordinary remedy, an exception to our tradition of fair and complete hearings. Its use should be carefully restricted to cases of actual obstruction. In my opinion, this record of petty disagreement does not approach that serious interference with the judicial process which justifies use of the contempt weapon. Whatever the situations making this weapon necessary, it is plain to me that this is not one of them.

An appellate court can rarely correct abuse such as this. 'If the judge intends to be unfair, the trial will be a farce no matter how many detailed rules we provide for him.' McElroy, Some Observations Concerning the Discretions Reposed in Trial Judges by the American Law Institute's Model Code of Evidence, Model Code of Evidence, pp. 356, 358. A printed record cannot reveal inflections and gestures, the tenor of a judge's conduct of a trial-matters which make his position the most responsible in the daily administration of a fair judicial system. See Rheinstein, Who Watches the Watchmen? in Interpretations of Modern Legal Philosophies (New York, 1947), p. 589. In recent years we have seen a pronounced tendency to leave many matters in the discretion of the trial judge. MrElroy, supra; Yankwich, Increasing Judicial Discretion in Criminal Proceedings, 1 F.R.D. 746. The movement, which rests on the assumption that the judge is wise and impartial, should make us quick to upset his determinations in the few cases which clearly demonstrate light regard for the principles that should guide a responsible jurist.

I would reverse the judgment. 

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