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39 Tenn. L. Rev. 1 (1971-1972)
Contempt Power: -The Black Robe - A Proposal for Due Process

handle is hein.journals/tenn39 and id is 21 raw text is: TENNESSEE LAW                 REVIEW
Volume 39         Fall 1971         Number I

CONTEMPT POWER:--THE BLACK ROBE
A PROPOSAL FOR DUE PROCESS
Luis KUTNER*
The judicial process Junctions successfully only as long as the public
feels that it grinds out what they can accept without . . . a sense
ofinjustice. Law loses its normative function the minute the public
loses faith in the judicial process and feels that it is a mill that grinds
out sometimes justice and sometimes injustice. Then order can be
maintained only by the force of tyranny.
Judge Simon H. Rifkind'
The contempt power, according to the public mind, may be re-
garded as the power of a judge to point to somebody because of
displeasing conduct and order him fined or placed in jail. The judge
may object to young people tittering in his courtroom and order
* Member, Illinois and Indiana Bars; University of Chicago, LL.B.; former visiting
Associate Professor, Yale Law .School; Chairman, World Habeas Corpus Committee, World
Peace Through Law Center; former Consul, Ecuador; former Consul General, Guatemala;
former Special Counsel to the Attorney General of Illinois. Mr. Kutner is the author of numer-
ous articles and several books, including WORLD HABEAS CORPUS and I, THE LAWYER. The
author acknowledges the research assistance of Ernest Katin, Ph.D.
1. RIFKIND, When the Press Collides with Justice, in ASS'N OF AM. LAW SCHOOLS, SE-
LECTED ESSAYS ON CONSTITUTIONAL LAW 651, 653-54 (1963) [hereinafter cited as Rifkind]. On
January 20, 1971, in Mayberry v. Pennsylvania, 39 U.S.L.W. 27 (U.S. Jan. 20, 1971), the
United States Supreme Court held that a criminal defendant who repeatedly insulted and vilified
trial judge while disrupting courtroom proceedings was entitled, under 14th Amendment Due
Process Clause, to public trial before another judge on contempt charges (pg. 4133). See also
The Disruptive Lawyer. 57 A.B.A.J. 48 (1971). The American College of Trial Lawyers'
Advisory Committee, under the chairmanship of Whitney North Seymour, with Judge Simon
H. Rifkind among its members, and the discussion by the Advisory Committee on the Judge's
Function of the American Bar Association Project on Standards for Criminal Justice, which
once included Supreme Court Justice Harry A. Blackmun, are firmly opposed to disruption as
a trial tactic. While both reports recognize that a lawyer, whether acting for the prosecution or
the defense, must represent his client courageously, vigorously, diligently and with all the skill
and knowledge he possesses, he is also obligated to conduct himself in such a way as to avoid
disorder or disruption in the courtroom.

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