Full opinion text
OPINION AND ORDER OF THE COURT GIGNOUX, District Judge. This case arose from the 1969 trial of the so-called “Chicago 7,” five of whom were found guilty of violations of the 1968 Federal Anti-Riot Act (18 U.S.C. § 2101) after a four and a half month jury trial. At the conclusion of the trial, the trial judge, acting under Fed. R.Crim.P. 42(a), summarily convicted the defendants and their two trial attorneys (the nine original defendants herein) on 159 specifications of contempt of court, in violation of 18 U.S.C. § 401(1). The contempt sentences ranged from two months and 18 days for defendant Weiner to four years and 13 days for attorney Kunstler. On May 11, 1972, the Court of Appeals reversed all the contempt convictions and remanded 141 of the specifications for trial before another judge. In re Dellinger, 461 F.2d 389 (7th Cir. 1972). Fifty-two of the remanded contempt charges against the present defendants came on for trial before the undersigned, sitting without a jury, on October 29, 1973. At the conclusion of the government’s case, which consisted solely of the official transcript of the Anti-Riot Act trial, the Court dismissed two of the specifications and acquitted the defendants of 24 others. This removed from the trial defendants Lee T. Weiner and John R. Froines. After a four and one-half week trial, the Court has now received the evidence and heard argument on the issues of culpability, extenuation and mitigation (see Seale, 461 F.2d at 372; Dellinger, 461 F.2d at 397) with respect to the 26 remaining specifications against defendants David T. Dellinger, Rennard C. Davis, Thomas E. Hayden, Abbott H. Hoffman, Jerry C. Rubin, and their two trial counsel, defendants William M. Kunstler and Leonard I. Weinglass. The presently relevant evidence consists in main part of the official transcript of the Anti-Riot Act trial (some 23,000 pages), supplemented by selected portions of the court reporter’s tape recordings of the trial and the testimony of the defendants, lawyers, witnesses, deputy marshals, members of the press and other spectators who were present at various times during the trial. The Court’s findings of fact and conclusions of law are included in the following opinion. Fed.R.Crim.P. 23(c). I CULPABILITY With respect to each of the 26 contempt specifications presently before the Court, the Court is called upon to determine whether the evidence establishes beyond a reasonable doubt all elements of the crime of contempt charged to the defendant in that specification. Seale, 461 F.2d at 372. In making that determination, the Court is governed by the legal standards set forth in the two opinions of the Court of Appeals for the Seventh Circuit remanding the contempt proceedings against the present defendants and those against their former co-defendant Seale, In re Dellinger, supra (hereinafter Dellinger); United States v. Seale, supra (hereinafter Seale), as those standards have been further developed in two subsequent opinions in which that court has tested the sufficiency of criminal contempt convictions. In re Chase, 468 F.2d 128 (7th Cir. 1972) (hereinafter Chase); Robson v. Oliver, 470 F.2d 10 (7th Cir. 1972) (hereinafter Oliver). See also Robson v. Malone, 412 F.2d 848 (7th Cir. 1969). A. Non-Lawyer Defendants. With respect to the non-lawyer defendants, the Court of Appeals has made clear in Seale that four elements are required to support a criminal contempt conviction under 18 U.S.C. § 401(1). See generally Seale, 461 F.2d at 366-371. (1) First, the conduct in question must be “in the court’s presence or so proximate that it obstructs the administration of justice.” Id. at 367. Here, it is undisputed that the conduct charged took place in the court’s presence. (2) Second, the conduct at issue must constitute “misbehavior.” The Court of Appeals has defined “misbehavior” as “conduct inappropriate to the particular role of the actor, be he judge, juror, party, witness, counsel or spectator,” the role of each having been “molded to insure that a judicial proceeding is orderly, dignified, and confined to a rational search for truth in the context of defined legal issues.” Id. at 366-367. The fundamental principle is that “there must be silence except as the orderly conduct of business calls for speech.” Id.-at 367 (quoting from Robson v. Malone, supra, 412 F.2d at 850). (3) Third, the alleged contemnor must have acted with the requisite intent. The Court of Appeals has defined the minimum required intent as “a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful.” Seale, 461 F.2d at 368. Thus, proof of a specific intent to obstruct justice is unnecessary to establish the requisite intent. Id. at 368-369. A defendant cannot be cited for contempt for borderline conduct, unless he has been first warned that such conduct will be regarded as contumacious. Id. at 366. Conduct depicted in the trial transcript, without more, may itself sufficiently indicate intent to satisfy the government’s burden of proof on this issue. Id. at 369. And finally, the defendant’s motivation will not justify his misbehavior; “if his misbehavior was contemptuous within the meaning of the statute, I agree that it could not be excused by a religious or other conscientious motivation.” Chase, 468 F.2d at 140 (Stevens, J., dissenting). (4) Fourth, the conduct in question must amount to an “actual and material” obstruction of the administration of justice. Seale, 461 F.2d at 369. The Court of Appeals has rejected a standard which would make punishable “any interruption” which “diverts the judge’s attention from the orderly dispatch of the trial.” Idem. It has stated, however, that “the seriousness of the misbehavior bears on what conduct may be found materially obstructive.” Idem. Recognizing that “obstruction is an elusive concept which-does not lend itself to general statements,” Idem., the Court of Appeals has nevertheless delineated certain types of conduct which do and do not rise to the level of obstruction: (i) “Mere disrespect or affront to the judge’s sense of dignity” is not alone sufficient; however, “at some point disrespect and insult become actual and material obstruction.” Id., at 369-370. “A showing of imminent prejudice to a fair and dispassionate proceeding is, therefore, necessary to support a contempt based upon mere disrespect or insult.” Id. at 370. In determining whether the disrespectful remarks so imperil the proceeding, the reasonably to be expected reactions of those in the courtroom to the words or acts under scrutiny are relevant,” and “the test of contumaeiousness of words spoken during a court proceeding is their effect as contemporaneously understood by those who heard the words spoken in the courtroom. This includes the judge as well as other persons present.” Idem, (quoting from Parmelee Transp. Co. v. Keeshin, 292 F.2d 806, 810 (7th Cir. 1961)). (ii) The manner in which insulting remarks are spoken may raise otherwise non-obstructive remarks to the level of an obstruction. Seale, 461 F. 2d at 370. Furthermore, the delays caused by such remarks or other misbehavior may be sufficient to constitute a material obstruction, and thus “if a not insubstantial delay is entirely unnecessary and the misconduct serves, for instance, solely to vent the speaker’s spleen, the requisite obstruction would be present.” Idem. Differences in language patterns between different social, ethnic, political groups are, of course, relevant to the issue of intent. Idem. (iii) “Failure to heed the directive of the Court to desist from arguing, to sit down, or to remain quiet may indeed constitute an actual 'material obstruction to the administration of justice.” Id., 461 F.2d at 371. “A certain amount of leeway must be allowed. But where the directive is clear, the judge’s insistence on obedience is not undercut by his further rejoinder, and the party directed understands what is being asked of him, he must obey.” Idem. (iv) “Where there is legally adequate representation and no pressing need for the litigant to interject himself into the proceedings, this Court is hesitant to find as a matter of law that any such interjection did not rise to the level of an obstruction.” Del-linger, 461 F.2d at 401. Finally, of particular importance to the present case are two points which the Court of Appeals has repeatedly emphasized: (1) The Court of Appeals has made clear that “impropriety on the part of the trial judge cannot justify or excuse contemptuous conduct”; judicial error, judicial or prosecutorial misconduct, and judicial or prosecutorial provocation are to be considered only as extenuating and mitigating circumstances. Dellinger at 401; Seale, 461 F.2d at 361-363. (2) The Court of Appeals has further made clear that “[t]he standards of proper courtroom decorum are not altered and should not be applied differently because a trial may be characterized as political or because improprieties may be said to spring forth as if a ‘natural human response.’ ” Seale at 367. “[T]he court is not a public hall for the expression of views, nor is it a political arena or a street. It is a place for trial of defined issues in accordance with law and rules of evidence, with standards of demeanor for court, jurors, parties, witnesses and counsel.” Dellinger at 461 F.2d 401 (quoting from Katz v. Murtagh, 28 N.Y.2d 234, 240, 321 N. Y.S.2d 104, 269 N.E.2d 816, 820 (1971)). Applying the foregoing standards to the contempt specifications against the non-lawyer defendants, the Court finds that, for the reasons to be stated, these defendants are not guilty of the following charges; Davis II, Hayden III, Hoffman II (October 30) On the afternoon of October 29, after five weeks of trial, the trial judge ordered Seale bound and gagged. This authorized but drastic step was brought on by Seale’s persistent efforts to represent himself in the absence of trial counsel of his choice. On the morning of October 30, the marshals carried Seale into the courtroom in a chair with a massive gag covering most of his face and with his arms and legs strapped to the chair. Mr. Weinglass was cross-examining the witness Frappoly and interrupted his cross-examination to call the judge’s attention to Seale, who was groaning, attempting to communicate through his gag, and apparently in considerable pain. The judge excused the jury and directed the marshals to determine whether Seale needed assistance. Several marshals approached Seale’s chair. A scuffle ensued in which the chair tipped over, apparently into the first row of temporary press seats in the well of the courtroom. Pandemonium broke out, with counsel, defendants, reporters and spectators on their feet. At this point, Mr. Kunstler approached the lectern and addressed the judge in the language charged in Kunstler I. The court then recessed. When the jury returned to the courtroom, Mr. Weinglass stated it would be impossible for him to continue his cross-examination, with Seale bound and gagged in the courtroom. He requested that the jury be polled as to whether they felt the trial could proceed. The jury was again excused. After extended argument and angry colloquy between the judge and prosecutors, on the one hand, and defense counsel on the other, the motion was denied, and the jury returned to the courtroom. Seale was still trying to be heard through his gag, and the judge ordered him to refrain from making any noise. At this point, Davis rose from his seat at the defense table and made the remarks set forth in Davis II. The jury was again excused. Seale had apparently loosened his gag sufficiently so that he was able to speak, the marshals moved in to adjust his bindings, and there ensued the colloquy set forth in Hayden III and Hoffman II. Shortly after these events, the court recessed the morning session. The essence of the charge against the defendants in these specifications is that their comments “fanned the flames” of disorder in the courtroom and caused such a disruption of the proceedings as materially to obstruct the administration of justice. But the official transcript, the tapes and the testimony of eyewitnesses demonstrate that the trial proceedings had so disintegrated on the morning of October 30 that no judicial proceeding could fairly be said to be in progress. The record further shows that the principal cause of this disintegration was the appalling spectacle of a bound and gagged defendant and the marshals’ efforts to subdue him. The evidence does not establish beyond a reasonable doubt that the conduct charged to these defendants in these specifications was the cause of the breakdown of the proceedings or occasioned an actual and material obstruction of the administration of justice. Dellinger III, Hoffman IV (November 26) On the morning of November 26, before the jury, was called into the courtroom, Mr. Weinglass argued in support of a motion for a writ of habeas corpus ad testificandum for the production of one John Sinclair, in prison in Michigan, to testify on behalf of the defendants. After extended argument, the judge read into the record his opinion denying the motion. Mrv Kunstler, stating that the defendants regarded Sinclair as a key witness and were extremely disturbed by the denial of the motion, requested a recess so that they might consult. The court denied the request for a recess, and Dellinger made the remarks attributed to him in Dellinger III. Shortly thereafter, the jury was brought into the courtroom. The judge directed the government attorneys to call their next witness, but a short delay ensued as the witness was not immediately available. While the court was waiting for the witness, Mr. Kunstler renewed his request for a recess, which was again denied by the judge. At this point, Hoffman interjected the comments set forth in Hoffman IV. Once again, Mr. Kunstler renewed his request for a recess and the request was denied. The government witness then arrived in the courtroom, and the examination proceeded. The record does not show that the conduct charged to these defendants in these specifications, while clearly misbehavior, caused any such delay or other disruption of the proceedings as to constitute an actual and material obstruction of the administration of justice. Davis V, Hoffman V, Rubin IV (February 4) At the end of the afternoon session on February 4, the judge excused the jury, but asked the parties and counsel to remain. He then read a brief ruling into the record and announced that he was terminating Dellinger’s bail because of his use in the courtroom of “vile and insulting language.” (See Dellinger X). Mr. Kunstler requested an opportunity to argue the question. The judge denied argument. This event prompted an outburst from the spectators. The marshals started to remove people from the courtroom, and pandemonium broke out. At this point, Mr. Kunstler interrupted his attempt to argue the revocation of Dellinger’s bail, and there ensued the colloquy, participated in by Davis, Hoffman and Rubin, which forms the substance of Davis V, Hoffman V and Rubin IV. (See also Kunstler VIII). The marshals eventually cleared the courtroom, and the judge proceeded to another case. These specifications charge in substance that the comments of these defendants caused such a disruption of the proceedings as materially to obstruct the administration of justice. But the official transcript, the tapes and the testimony of eyewitnesses demonstrate that it was the disorder among the spectators following the judge’s abrupt order revoking Mr. Dellinger’s bail and his refusal to hear any argument which caused the complete disintegration of the trial proceedings at the close of the afternoon session on February 4. The conduct charged to these defendants in these specifications clearly constituted misbehavior with the requisite intent. However, the evidence does not establish beyond a reasonable doubt that defendants’ conduct caused the delay and disruption of the proceedings so as to constitute an actual and material obstruction of the administration of justice. Applying the standards which have been set forth above to the contempt specifications against the non-lawyer defendants, the Court finds that, for the reasons to be stated, these defendants are guilty of the following charges: Dellinger IV (December 9) On the afternoon of December 9, in the absence of the jury, the judge interrupted a colloquy with counsel to note that certain of the defendants, particularly Dellinger, were making noises. Dellinger denied that he had made a single noise. When the judge persisted in the accusation, Dellinger responded with the remarks attributed to him in Dellinger IV, calling the judge “a liar,” “a facist court,” “absolutely irresponsible” and “dishonest.” At the conclusion of Dellinger’s remarks, Mr. Kunstler asserted Dellinger’s right to deny a false accusation. A brief colloquy ensued and the jury was recalled to the courtroom. The record does not permit the Court to find beyond a reasonable doubt that Dellinger had made noises as charged by the judge. But, even if the judge was mistaken and the false accusation justified Dellinger’s denial, his vilification of the judge was an excessive and wholly unwarranted response, which could only have served “to vent the speaker’s spleen.” In light of the extent of his comments and their offensive character, it is clear that he knew or should reasonably have been aware that his conduct was wrongful. The record further shows that this interruption of the legal argument in which the judge and counsel were engrossed so disrupted the course of the proceedings that an unnecessary and not insubstantial delay ensued. The Court is compelled to conclude that the conduct charged to Dellin-ger in this specification constituted misbehavior in the presence of the court demonstrating the requisite intent and arising to the level of an actual and material obstruction of the administration of justice. Dellinger V (December 15), Dellinger VI (December 30), Dellinger VII (January 12), Dellinger VIII (January lb), Dellinger IX (January 23), Dellinger X (February b) Dellinger V. On the afternoon of December 15, with the jury present in court, Mr. Weinglass was examining the witness MacKenzie. The judge interrupted an argument on the admissibility of an exhibit to ask the marshals to remove from the courtroom Mr. Stuart Ball, Jr. for laughing at the judge. Ball was a young lawyer who, although not formally appearing as counsel, was assisting in the defense effort. Mr. Weinglass stated that Ball did not laugh, and Hoffman and Davis both indicated that they had laughed. The judge again directed the marshals to remove Ball. There then ensued the colloquy set forth in Dellinger V, in which Dellinger termed the removal of Ball “an injustice,” accused the judge of lying and of being “very prejudiced and unfair,” and called the judge “the assistant prosecutor or maybe the chief prosecutor.” Disorder, punctuated with cheers of “Right on” resulted from the spectators. Dellinger VI. On the morning of December 30, during the direct examination of defendant Hoffman, the jury being present in court, the judge sustained a government objection to a question asked by Mr. Weinglass. Dellinger reacted with a loud groan and sigh, which attracted the attention of a marshal. There ensued a colloquy between the court, counsel and Dellinger, in which Dellinger repeatedly expressed his disgust with the court’s ruling and his contempt for the “dishonesty” of the court’s process. This colloquy is the subject matter of Dellinger VI. Dellinger VII. On the afternoon of January 12, the jury not being present, the judge sustained a government objection to a defense exhibit, and Dellinger commented, “Oh, ridiculous.” Although apparently made to Froines at the defense table, the remark was overheard by the judge and precipitated the colloquy set forth in Dellinger VII, in which Dellinger called the judge “a hypocrite,” again accused the judge of unfairness and of discrediting the whole system of justice, and continued speaking after the judge ordered him to remain quiet. Dellinger VIII. On January 14, during the redirect examination of the witness Edmundson, the jury being present, the judge sustained the government’s objection to a question asked of the witness by Mr. Weinglass. Apparently someone at the defense table laughed, and there ensued the colloquy set forth in Dellinger VIII, during the course of which Dellinger repeatedly called the judge a liar and refused to be quiet after the judge directed him to sit down. At the conclusion of Dellinger’s remarks, spectators and others applauded, and there was further colloquy between the judge,'the defendants and their counsel before Mr. Weinglass resumed his questioning of the witness. Dellinger IX. On the morning of January 23, during the direct examination of defendant Davis, the jury being present, the judge sustained the government’s objection to a defense exhibit. Argument over the judge’s ruling precipitated a motion by Mr. Kunstler for a mistrial. The judge’s denial of the motion resulted in the colloquy set forth in Dellinger IX, during the course of which Dellinger accused the court of “force and violence,” of “inciting a riot” and of “hypocrisy”; again called the judge “the chief prosecutor”; stated there was “no pretense of fairness” in the court; and refused to be quiet after the judge repeatedly ordered him to sit down. Disorder broke out in the courtroom. The marshals removed several spectators, and there was substantial further colloquy between the judge, the defendants and their counsel before the examination of the witness was resumed. Dellinger X. On the morning of February 4, during the direct examination of the government’s rebuttal witness Riordan, the jury being present, the witness testified to alleged activity of Del-linger. This prompted the barnyard epithet from Dellinger and the further colloquy set forth in Dellinger X. During the course of the colloquy, Dellinger stated that the witness’ testimony was “an absolute lie,” called the prosecuting attorney “a snake” and a liar, and accused the judge of prejudice. Shouts of “Damn right” and “Right on” ensued from the spectators. All comments attributed to this defendant in this specification, other than the last one, were made before the jury had departed the courtroom. ****** On each of the occasions which are the subject of the foregoing specifications, Dellinger was adequately represented by counsel and had no reason to interject himself into the proceedings. He admits that the judge had repeatedly warned the defendants to speak only through their lawyers and that he was speaking in direct violation of the court’s directives. Thus, his unwarranted participation constituted misbehavior, which, by his own admission, he knew was wrongful. The evidence further establishes that on each occasion his comments occasioned an entirely unnecessary and not insubstantial delay in the proceedings and that his vilification of the judge could only have served “to vent the speaker’s spleen.” The record clearly shows that the conduct charged to Dellinger in each of these specifications constituted misbehavior in the presence of the court with the requisite intent and rose to the level of an actual and material obstruction of the administration of justice. Hoffman VI, Rubin V (February 5) The morning session on February 5 opened with an extended argument by Mr. Weinglass, in the absence of the jury, in support of a motion to reinstate Dellinger’s bail. The judge’s statement that he had been very patient with defendants and their counsel during the nearly five and one-half months of the trial prompted the remarks attributed to Rubin in Part I of Rubin V. Shortly thereafter, the judge terminated the argument before Mr. Weinglass had concluded and denied the motion. Following a brief colloquy, in which Mr. Kun-stler joined, Hoffman and Rubin interjected the comments attributed to them in Part I of Hoffman VI and Part II of Rubin V. The jury was then returned, and government counsel completed the direct examination of the rebuttal witness Lawyer. Prior to cross-examination of the witness the jury was excused so that defense counsel might examine Jencks Act material. While this was being done, Mr. Weinglass attempted to renew his argument for Dellinger’s reinstatement to bail. The judge refused to hear further argument from either Mr. Weinglass or Mr. Kunstler and ordered both to sit down. At this juncture, Hoffman and Rubin made the remarks attributed to them in Part II of Hoffman VI and Part III of Rubin V. Shortly thereafter, when, the judge refused to sign the written order revoking Dellinger’s bail, Rubin made the further comment charged to him in Part IV of Rubin V. The morning session closed with the comments attributed to these defendants in Part III of Hoffman VI and Part V of Rubin V. Hoffman and Rubin were adequately represented by counsel, and they had no reason to interject themselves into the proceedings. The judge had repeatedly warned both that they were to speak only through counsel. In light of the unwarranted and vilifying character of their remarks, these defendants clearly knew or should reasonably have been aware that their conduct was wrongful, and the record plainly discloses that their persistent interjections occasioned a substantial delay in the progress of the proceedings. The conclusion is inescapable that the conduct charged to Hoffman and Rubin in these specifications constituted outrageous misbehavior in the presence of the court, that the defendants acted with the requisite intent, and that their conduct rose to the level of an actual and material obstruction of the administration of justice. Hoffman VII, Rubin VI (February 6) On February 6, shortly after the morning session of court was called to order, the jury not being present, Hoffman and Rubin entered the courtroom wearing judicial robes to which were attached six-pointed Jewish stars. Shortly thereafter, while leaving the courtroom during a recess, Hoffman removed his robes, dropped them to the floor and walked over them. Underneath the robes he was wearing a Chicago policeman’s shirt. Both defendants testified that their conduct was “guerrilla theater” and “symbolic communication” of their contempt for the judge and the judicial process, as well as their view that judicial robes were simply a cloak for police brutality. Concededly, the record does not disclose that the conduct charged to these defendants in these specifications caused any substantial disruption of the proceedings. However, as the Court of Appeals has stated, “the seriousness of the misbehavior bears on what conduct may be found materially obstructive.” Seale, 461 F.2d at 369. The conduct charged here was so flagrant, so outrageous, and so subversive of both respect for the court and the integrity of the judicial process as to rise to the level of an actual and material obstruction of the administration of justice. The transcript further discloses that the conduct occasioned an entirely unnecessary and not insignificant delay in the proceedings. From the entire record, the conclusion is inescapable that the conduct charged to Hoffman and Rubin in these specifications constituted clear misbehavior in the presence of the court, that these defendants knew or should reasonably have been aware that their conduct was wrongful, and that their conduct constituted an actual and material obstruction of the administration of justice. B. Lawyer Defendants. With respect to each of the contempt specifications against the lawyer defendants, the Court must determine whether the evidence establishes beyond a reasonable doubt that the defendant’s conduct constituted misbehavior with the requisite intent in the presence of the court which rose to the level of an actual and material obstruction of the administration of justice. The essential elements of the crime of contempt as they have been defined by the Court of Appeals in Seale apply. Dellinger, 461 F.2d at 397; Oliver, 470 F.2d at 12. It must “ ‘clearly be shown’ from the record that [the attorney’s] conduct rose to the level of contemptuous ‘misbehavior’ which ‘obstructed’ the judge in performance of judicial duty.” Oliver at 12; Dellinger, 461 F.2d at 397. See also In re McConnell, 370 U.S. 230, 234, 82 S.Ct. 1288, 8 KEd.2d 434 (1961). In addition, where, as here, the conduct complained of is that of an attorney engaged in the representation of a litigant, the search for these essential elements of the crime of contempt must be made with full appreciation of the contentious role of trial counsel and his duty of zealous representation of his client’s interests. Dellinger, 461 F.2d at 397; Oliver, 470 F.2d at 12. In dealing with the conduct of attorneys, in both Dellinger and Oliver, the court also quoted with approval the language of the Supreme Court in McConnell, supra, 370 U.S. at 236, 82 S.Ct. 1288, 8 L.Ed.2d 434: [W]hile we appreciate the necessity for a judge to have the power to protect himself from actual obstruction in the courtroom . . . it is also essential to a fair administration of justice that lawyers be able to make honest good-faith efforts to present their clients’ cases. An independent judiciary and a vigorous, independent bar are both indispensable parts of our system of justice. To preserve the kind of trials that our system envisages, Congress has limited the summary contempt power vested in courts to the least possible power adequate to prevent actual obstruction of justice. Dellinger, 461 F.2d at 397; Oliver, 470 F.2d at 13. With respect to the requisite intent, the Court of Appeals has further stated that attorneys may be “ . persistent, vociferous, contentious, and imposing, even to the point of appearing obnoxious, when acting in their client’s behalf,” Dellinger, 461 F.2d at 400, and that “ . . . an attorney possesses the requisite intent only if he knows or reasonably should be aware in view of all the circumstances, especially in the heat of controversy, that he is exceeding the outermost limits of his proper role and hindering rather than facilitating the search for truth.” Idem. In sum, attorneys must be given “great latitude” and “extreme liberality” in the area of vigorous advocacy, and doubts in delineating the line between vigorous advocacy and obstruction are to be resolved in favor of advocacy. Dellinger at 398; Oliver, 470 F.2d at 13. As the Supreme Court stated in McConnell, The arguments of a lawyer in presenting his client’s case strenuously and persistently cannot amount to a contempt of court so long as the lawyer does not in some way create an obstruction which blocks the judge in the performance of his judicial duty. 370 U.S. at 236, 82 S.Ct. at 1292. In Dellinger and Oliver, the Court of Appeals has set forth certain types of conduct by attorneys which do and do not rise to the level of contemptuous misbehavior constituting an actual and material obstruction. See generally Del-linger, 461 F.2d at 397-401; Oliver, 470 F.2d at 13-14: (1) Attorneys may not persist in continuing argument after express orders by the trial judge to cease. Dellinger, 461 F.2d at 398. “[T]he necessity for orderly administration of justice compels the view that the judge must have the power to set limits on argument.” Id. at 399. Nor is good faith an absolute defense to a contempt citation for persistent argument, even though the attorney has not been given a reasonable opportunity to be heard. Dellinger at 398. On the other hand, “ . . . without an actual obstruction, there can be no contempt.” Idem. “And where the judge is arbitrary or affords counsel inadequate opportunity to argue his position, counsel must be given substantial leeway in pressing his contention . . . .’’Id. at 399. (2) When, despite a court directive to cease argument, the trial judge adds a rejoinder or a statement which calls for a response by the attorney,” an invited, additional response cannot subsequently be viewed as a contemptuous violation of the order.” Idem. (3) An attorney is permitted to reply when the judge has charged him with professional misconduct; he “. . . may insist upon being heard in his own defense so long as his response is respectful.” Idem. But, while the attorney may respond to such an attack, “[e]ven if the judge’s accusation be unfounded, or ill-tempered, it does not protect counter-misbehavior . . . .” Idem. (4) An attorney has no affirmative obligation to restrain his client from disruptive conduct; he commits contempt, however, if he encourages disruptive behavior by a client or “. . . fans the flames of existing frictions . . . .’’Id. at 399-400. Unless the attorney’s conduct is the occasion for disruptive conduct by others in the courtroom, the attorney cannot be held responsible for that conduct. Oliver, 470 F.2d at 13. (5) “[M]ere disrespect or insult cannot be punished where it does not involve an actual and material obstruction. This is particularly true with respect to attorneys where the ‘heat of courtroom debate’ may prompt statements which are ill-considered and might later be regretted.” Dellinger, 461 F.2d at 400. When, however, the attorney’s remarks “create an imminent prejudice to a fair and dispassionate proceeding,” the “line beyond which disrespect becomes obstruction” is crossed. Idem. Moreover, a material obstruction exists “if an entirely unnecessary and not insignificant delay is occasioned by insulting remarks which serve, for instance, only to vent the speaker’s spleen .” Idem. The manner in which the remark was made may also be significant. Idem. Finally, it must be reiterated that, as the Court of Appeals made clear in both Seale and Dellinger, “. . . impropriety on the part of the trial judge cannot justify or excuse contemptuous conduct. However, judicial (or prosecuto-rial) provocation is to be considered in extenuation of the offense and in mitigation of any penalty to be imposed.” Dellinger, 461 F.2d at 401. See Seale, 461 F.2d at 361-364. Bearing in mind the “great latitude” and “extreme liberality” afforded trial counsel when acting in their client’s behalf, and resolving any doubts in favor of vigorous advocacy, the Court finds that, for the reasons to be stated, the defendants Weinglass and Kunstler are not guilty of the following charges: Kunstler I (October SO) This specification charges Mr. Kunstler with failing to assist the court in maintaining order and with encouraging further disorder in the courtroom on the second day when Seale was bound and gagged. An attorney has no obligation to restrain others in the courtroom from disruptive conduct. See Dellinger, 461 F.2d at 399. Nor does the record disclose that Mr. Kunstler’s comments caused disorder or aggravated the existing disorder in the courtroom. For these reasons, as well as for the reasons stated by the Court in its discussion of Davis II, Hayden III and Hoffman II, supra, the Court cannot say that the evidence establishes beyond a reasonable doubt that the conduct charged to Mr. Kunstler in this specification occasioned an actual and material obstruction of the administration of justice. Nor does the evidence establish beyond a reasonable doubt that such conduct constituted misbehavior with the requisite intent. Kunstler IV (January 6) On January 6, the defendants called Mayor Richard J. Daley of Chicago to the stand as their witness. After the court had sustained objections to a series of leading questions asked of Mayor Daley by Mr. Kunstler, Mr. Kunstler moved to have the mayor declared a hostile witness. The motion was made in the presence of the jury despite the court’s direction to counsel, in an earlier colloquy in the absence of the jury, that any motion to have the mayor declared a hostile witness be made outside the presence of the jury (Tr. 13,890). This specification charges Mr. Kunstler with a direct violation of the court’s order. After a careful review of the record, the Court cannot say that it is satisfied beyond a reasonable doubt that Mr. Kunstler deliberately and intentionally acted in violation of the court’s order or that the incident occasioned an actual and material obstruction of the administration of justice. Mr. Kunstler testified that he understood the court’s order to prohibit arguing a hostile witness motion in the presence of the jury. The order was somewhat ambiguous, and the transcript discloses that, as soon as government counsel called the court’s attention to the alleged violation, Mr. Kun-stler requested several times unsuccessfully that the jury be excused. A substantial amount of time had elapsed since the court’s direction to counsel, and, most significantly, the motion could not conceivably have prejudiced the jury, inasmuch as the hostility existing between Mayor Daley and the defendants was obvious to everyone in the courtroom. See United States v. Dellin-ger, supra at 388, n. 86. Kunstler V (January 23) On the morning of January 23, during the direct examination of defendant Davis, with the jury present in court, the judge sustained the government’s objection to a defense exhibit. Argument over the judge’s ruling precipitated a motion by Mr. Kunstler for a mistrial. The judge’s denial of the motion resulted in the colloquy set forth in Dellinger IX. Disorder broke out in the courtroom, and the marshals moved to the rear of the courtroom and started ejecting a number of spectators who had applauded Dellinger’s remarks and were otherwise disrupting the proceedings. At this point, Mr. Kunstler, who was at the lectern attempting to argue the admissibility of the exhibit, made the comments charged to him in Kunstler V. The charge against Mr. Kunstler in this specification is that his commentary from the lectern “had the effect of encouraging disorder among the spectators.” However, the transcript, the tapes and the testimony of eyewitnesses show that the disorder among the spectators had resulted from the immediately preceding remarks of Mr. Dellinger and from the efforts of the marshals to remove the spectators who had applauded. The evidence does not establish beyond a reasonable doubt that Mr. Kun-stler’s comments from the lectern caused the disruptive conduct of others in the courtroom or occasioned an actual and material obstruction of the administration of justice. Weinglass III (January 2U) On the afternoon of January 24, during the direct examination of defendant Davis, with the jury present in court, the judge sustained a government objection to testimony by the witness concerning a speech of the Reverend Ralph Abernathy given at one of the National Mobilization Committee (MOBE) rallies which had been held on August 29, 1968. After the court’s initial ruling, Mr. Weinglass and Mr. Kun-stler continued to argue that the speech given by Dr. Abernathy, who at the time was national co-chairman with Mr. Del-linger of MOBE, was directly relevant to demonstrate the non-violent intent of the defendants. Government counsel responded, and the judge announced that his ruling would stand. Despite repeated directions from the judge to continue his examination of the witness, Mr. Weinglass continued to argue as set forth in Weinglass III. The essence of the charge against Mr. Weinglass in this specification is that he persisted in continuing argument after repeated orders by the judge to cease. But it is clear from the relevant transcript and tapes that Mr. Weinglass sincerely believed that the judge had not given him a reasonable opportunity to be heard and did not fully understand his position. See Dellinger at 399. Mr. Weinglass’ remarks were confined to argument and he did not personally insult or otherwise show disrespect for the judge. There is no indication in the transcript or the tapes that his statements were made in an offensive manner or in any way disrupted the proceedings. See In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972). As the Court of Appeals has stated, attorneys may be “. . . persistent, vociferous, contentious, and imposing, even to the point of appearing obnoxious, when acting in their client’s behalf,” Dellinger, 461 F.2d at 400, but, “an attorney possesses the requisite intent only if he knows or reasonably should be aware in view of all the circumstances, especially in the heat of controversy, that he is exceeding the outermost limits of his proper role and hindering rather than facilitating the search for truth.” Idem. The Court cannot say that the record “clearly shows” that the conduct charged to Mr. Weinglass in this specification was conduct “so inappropriate to [his] role as trial counsel” as to exceed the “outermost limits” of vigorous advocacy, or that such conduct rose to the level of contemptuous “misbehavior” which “obstructed” the judge in “the performance of judicial duty.” In the view of this Court, while Mr. Weinglass approached the brink, he did not cross the line between advocacy and obstruction. Kunstler VIII (February U) This specification charges Mr. Kunstler with “fanning the flames of the disorder” which had broken out in the courtroom at the end of the afternoon session on February 4 when the judge revoked Dellinger’s bail. The record does not show, however, that Mr. Kunstler’s comments either caused or aggravated the existing disorder in the courtroom. For this reason, as well as for the reasons stated by the Court in its discussion of Davis V, Hoffman V and Rubin IV, supra, the Court cannot say that the evidence establishes beyond a reasonable doubt that the conduct charged to Mr. Kunstler in this specification occasioned an actual and material obstruction of the administration of justice. Applying the standards which have been set forth above to the contempt specifications against the lawyer-defendants, the Court finds that, for the reasons to be stated, defendant Kunstler is guilty of the following charges: Kunstler VI (February 2) On Friday, January 30, Mr. Kunstler represented to the court that the defendants had completed the presentation of their “live” witnesses. He requested and obtained a weekend recess so that the defense might locate a cameraman necessary to authenticate a film, the admission of which, together with certain documents, would conclude the defense case. On Monday morning, February 2, Mr. Kunstler informed the judge that over the weekend the defendants had learned that the Reverend Ralph Abernathy had returned to the United States from Europe and would be available to testify later that morning. Mr. Kunstler asked to be relieved of his prior commitment in view of this unforeseen development. The government objected, and the judge denied Mr. Kun-stler’s motion. At this point, Mr. Kun-stler made the extended remarks set forth in Kunstler VI. In the course of these comments, he termed the judge’s ruling “about the most outrageous statement I have ever heard from a bench,” violating “every principle of fair play;” stated that he felt “disgraced to be here” and that the judge could hold him in contempt if he wished to do so; accused the judge of extreme bias; documented his accusations with a quotation from The New York Times which had characterized a prior ruling of the judge as “the ultimate outrage in American justice”; called the trial “a legal lynching”; and concluded with the following observation: —and that, your Honor, is wholly responsible for that, and if this is what your career is going to, end on, if this is what your pride is going to be built on, I can only say to your Honor, “Good luck to you.” Shouts of “Right on” and applause followed. Mr. Kunstler testified that his remarks constituted “forceful and vigorous” argument. However, the extent and violence of the diatribe and the bitterness and anger expressed demonstrate that his comments constituted a vicious personal attack on the judge which could only have served to vent his spleen. His remarks plainly created an “imminent prejudice to a fair and dispassionate proceeding.” See Dellinger, 461 F.2d at 396. Unquestionably, the line “beyond which disrespect becomes obstruction” was crossed. The record clearly shows that the conduct charged to Mr. Kun-stler in this specification constituted outrageous misbehavior in the presence of the court; that, as the speech itself indicates, Mr. Kunstler knew his conduct was wrongful; and that the conduct, which resulted in an entirely unnecessary and not insignificant delay and disruption of the proceedings, exceeded the “outermost limits” of advocacy and rose to the level of an actual and material obstruction of the administration of justice. Kunstler VII (February 2) On the morning of February 2, following the judge’s denial of Mr. Kunstler’s motion for leave to present the Reverend Ralph Abernathy as a defense witness (see Kunstler VI), the judge called on the defendants either to present further evidence or to rest. Mr. Kunstler stated that the defendants were not going to rest, as Dr. Abernathy was on his way from the airport and prepared to testify. Over Mr. Kunstler’s objection, the judge rested for the defendants. At the request of government counsel, the judge ordered the defendants and their counsel to make no reference before the jury to the fact that they wanted Dr. Abernathy to testify. There ensued the colloquy set forth in Part I of Kunstler VII, in which Mr. Kunstler stated that he was not going to abide by the court’s order; that he was going to repeat his motion before the jury; and that the judge would have to send him to jail. The jury then returned to the courtroom, and the judge informed the jury that since the defendants were not ready to proceed, he had rested for them. Mr. Kunstler objected and informed the jury that the defendants were prepared to go ahead with Dr. Abernathy. Shortly thereafter, Mr. Kunstler interrupted the examination of the government’s first rebuttal witness to inform the court that Dr. Abernathy had just arrived. There then ensued, in the presence of the jury, the colloquy set forth in Part II of Kunstler VII, during which Mr. Kunstler renewed his motion to call Dr. Abernathy as a defense witness and persisted in arguing the motion after it had been denied by the judge and after the judge had repeatedly ordered him to sit down. The record clearly shows that Mr. Kunstler flagrantly and defiantly violated the court’s order not to renew his motion in the presence of the jury and persisted in continuing argument after the judge’s repeated directions to stop. His conduct exceeded the “outermost limits” of vigorous advocacy and constituted contemptuous misbehavior which he assuredly knew or reasonably should have been aware was wrongful. His actions plainly caused a substantial delay in the proceedings and obstructed the judge in the performance of his judicial duty. II EXTENUATION AND MITIGATION The Court of Appeals made clear in Seale and Dellinger that impropriety on the part of the trial judge cannot justify or excuse contemptuous conduct. However, the Court of Appeals made equally clear in those cases that judicial error, judicial or prosecutorial misconduct, and judicial or prosecutorial provocation are to be considered in extenuation of the offense and in mitigation of any penalty to be imposed. Dellinger, 461 F.2d at 401; Seale, 461 F.2d at 361-364. See Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 69 L.Ed. 767 (1925) ; Offutt v. United States, 93 U.S.App.D.C. 148, 208 F.2d 842, 843 (1953). Therefore, this Court must now consider the extent to which the conduct of the trial judge and prosecuting attorneys in the Anti-Riot Act trial, although it cannot vitiate the contempt convictions, may reduce the degree of the defendants’ culpability and lessen the severity of the penalties which might otherwise be imposed. In reversing the Anti-Riot Act convictions of five of the original defendants, the Court of Appeals reviewed in detail the bizarre events of that trial. United States v. Dellinger, supra. Its review, which is confirmed by the transcript, the tapes and the eyewitness testimony presented to this Court, revealed a trial which lasted four and a half months, requiring 103 trial days. Spectators and press personnel filled the courtroom daily, and, at times, there were as many as 19 marshals in the courtroom. Almost every session was punctuated by spectator disorder and outbursts and by recriminatory exchanges between the judge and prosecutors, on the one hand, and the defendants and their counsel, on the other. During several sessions from October 29 to November 3, Seale was bound and gagged in the courtroom.. On a number of occasions, the trial so completely disintegrated that it could not be said that a judicial proceeding was in progress. The Court of Appeals concluded that “we are unable to approve the trial in this case as- fulfilling the standards of our system of justice.” Id. 461 F.2d at 385. Although the Court of Appeals made no attempt to assign responsibility for the deficiencies in the trial, id. at 385, it held that “the demeanor of the judge and prosecutors would require reversal if other errors did not.” Id. 461 F.2d at 391. Among other improprieties, the Court of Appeals noted several hundred comments and actions of the trial judge, more than 150 in the presence of the jury, which, from the very beginning, displayed the judge’s “deprecatory and often antagonistic attitude” toward the defendants, their counsel and their case, and which “must have telegraphed to the jury the judge’s contempt for the defense.” Id. at 386-389, and nn. 80, 83, 84 and 86. In addition, the Court of Appeals catalogued numerous instances in which the judge’s manifest hostility toward the defense was disclosed by unwarranted restrictions on the activities of defense counsel and the conduct of the defense, id. at 386-387 and nn. 81 and 82; inconsistent evidentiary rulings, id. at 387 and nn. 86 and 88; and the harassment of defense witnesses, id. at 388 and n. 85. Finally, the Court of Appeals observed that the conduct of the prosecutors, which included numerous disparaging personal attacks on defense counsel made before the jury, “fell below the standards applicable to a representative of the United States.” Id. at 389 and n. 87. The official transcript, the tapes and the eyewitness testimony presented before this Court amply support these findings of the Court of Appeals. From the foregoing, it is apparent that the contumacious conduct of the defendants and their lawyers cannot be considered apart from the conduct of the trial judge and prosecutors. Each reacted to provocation by the other, and the tensions generated during four and a half months of so acrimonious a trial cannot be ignored. Indeed, with the exception of the two specifications relating to the “robe” incident (Hoffman VII and Rubin VI), the contumacious conduct of the four remaining defendants can, in each instance, reasonably be said to have been in response, albeit an excessive response, to peremptory action of the judge. . [31] Present government counsel urge that substantial jail sentences for these defendants are necessary to vindicate the judicial process and to deter other defendants and defense counsel from similar misbehavior. After a careful evaluation of the record, however, this Court is convinced that, in the particular circumstances here present, the affirmation of the integrity of trial proceedings and the goal of deterrence have both been achieved by the findings of guilt. The Court is further persuaded that, at this late date, four years after the events which gave rise to these charges, no warrant exists for the imposition of jail sentences additional to the periods of imprisonment which have already been served by the non-lawyer defendants. While Mr. Kunstler was never incarcerated, in the considered judgment of the Court, no purpose, other than the impermissible purpose of vindictiveness, would be served by sentencing him to prison at this time. The condemnation of his conduct and the potentially grave consequences of a criminal contempt conviction to a member of the bar should serve as adequate deterrents to other lawyers who may be disposed to similar misbehavior. In light of the unique character and long history of this case, and the defendants’ attack on the integrity and fairness of the American judicial process, a concluding observation is appropriate. Throughout these proceedings, the defense has asserted that both the 1969 Anti-Riot Act prosecution and the present contempt proceedings have been “political trials” designed to suppress dissent. This position, they claim, gives them license unilaterally to dispense with the standards of civility to which American lawyers and litigants customarily adhere in criminal, as well as civil, trials. It is precisely to preserve the opportunity for the fair and dispassionate resolution of strenuously contested disputes by an impartial tribunal that rules governing the behavior of all the actors in a trial exist. The fallacy which this Court perceives in the defendants’ reasoning was exposed by the Court of Appeals in Seale in the following language, drawn in large part from opinions of the Supreme Court: “It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country.” Illinois v. Allen, supra, 397 U.S. 337 at 343, 90 S.Ct. 1057, 25 L. Ed. 353. “Preservation of the liberties of citizens, when on trial for crimes charged against them, demands order in the courtroom. Absent such order, no trial can be fair. More important, if criminal trials cannot go on in orderly fashion, then the defendants, if unpopular or if members of minority groups, may become the victims of that monstrous substitute for trials — mob violence.” United States v. Sacher, supra, 182 F.2d 416 at 454 (concurring opinion of Judge Frank). It is precisely because appellate courts sit to vindicate error that this principle is viable. Thus it is that he who would make himself the “judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion,” (Walker v. City of Birmingham, supra, 388 U.S. 307 at 320-321, 87 S.Ct. 1824 at 1832, 18 L.Ed.2d 1210), and who would resort to appeal by disruption in the courtroom commits “the most grievous of offenses — a crime against intelligence.” Freund, supra at 9. Seale at 362-363. In sum, a courtroom “. . . is a place for 'trial of defined issues in accordance with law and rule's of evidence, with standards of demeanor for court, jurors, parties, witnesses and counsel.” Dellinger, 461 F.2d at 401 (quoting from Katz v. Murtagh, 28 N.Y.2d 234, 240, 321 N.Y.S.2d 104, 269 N.E.2d 816, 820 (1971)). Trials which proceed in accordance with the law, the rules of evidence and the standards of demeanor not only reaffirm the integrity and viability of the judicial process, but also serve to insure the ability of each one of us to protect the rights and liberties we enjoy as citizens. The point is well made by the following dialogue which comes, not from a judicial opinion or a legal treatise, but from Robert Bolt’s play, “A Man For All Seasons.” The dialogue is between Sir Thomas More and his son-in-law, William Roper, a young lawer: Roper: So now you’d give the Devil benefit of law! More: Yes. What would you do? Cut a great road through the law to get after the Devil ? Roper: I’d cut down every law in England to do that! More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast— man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake. Robert Bolt, “A Man For All Seasons,” pp. 37-38 (Vintage Books: New York, 1962). Ill DIRECTION FOR ENTRY OF JUDGMENTS In accordance with the foregoing, judgments will be entered as follows: (1) Finding defendant Rennard C. Davis not guilty of the charges against him in Specifications II and V against said defendant and acquitting said defendant of said charges; and further directing that said defendant be discharged. (2) Finding defendant Thomas E. Hayden not guilty of the charge against him in Specification III against said defendant and acquitting said defendant of said charge; and further directing that said defendant be discharged. (3) Finding defendant Leonard I. Weinglass not guilty of the charge against him in Specification III against said defendant and acquitting said defendant of said charge; and further directing that said defendant be discharged. (4) Finding defendant David T. Del-linger not guilty of the charge against him in Specification III against said defendant and acquitting said defendant of said charge. (5) Finding defendant Abbott H. Hoffman not ‘ guilty of the charges against in Specifications II, IV and V against said defendant and acquitting said defendant of said charges. (6) Finding defendant Jerry C. Rubin not guilty of the charge against him in Specification IV against said defendant and acquitting said defendant of said charge. (7) Finding defendant William M. Kunstler not guilty of the charges against him in Specifications I, IV, V and VIII against said defendant and acquitting said defendant of said charges. (8) Finding defendant Abbott H. Hoffman guilty of the charges against him in Specifications VI and VII against said defendant and convicting said defendant of the crime of contempt of court as charged in said specifications; but directing that no sentence be imposed and that said defendant be discharged. (9) Finding defendant Jerry C. Rubin guilty of the charges against him in Specifications V and VI against said defendant and convicting said defendant of the crime of contempt of court as charged in said specifications; but directing that no sentence be imposed and that said defendant be discharged. (10) Finding defendant David T. Del-linger guilty of the charges against him in Specifications IV, V, VI, VII, VIII, IX and X against said defendant and convicting said defendant of the crime of contempt of court as charged in said specifications; but directing that no sentence be imposed and that said defendant be discharged. (11) Finding defendant William M. Kunstler guilty of the charges against him in Specifications VI and VII against said defendant and convicting said defendant of the crime of contempt of court as charged in said specifications; but directing that no sentence be imposed and that said defendant be discharged. It is so ordered. APPENDIX Revised Contempt Specifications and Relevant Excerpts From the Official Transcript not Included in the Specifications October 30, 1969 WILLIAM M. KUNSTLER I On October 30th, as the Court was attempting to maintain order by restraining the defendant Bobby Seale, Mr. Kunstler not only made no attempt to aid the Court in maintaining order, but engaged in the following colloquy as well: Mr. Kunstler: Your Honor, are we going to stop this medieval torture that is going on in this courtroom? I think this is a disgrace. Mr. Rubin: This guy is putting his elbow in Bobby’s mouth and it wasn’t necessary at all. Mr. Kunstler: This is no longer a court of order, your Honor; this is a medieval torture chamber. It is a disgrace. They are assaulting the other defendants also. Mr. Rubin: Don’t hit me in the balls, motherfucker. Mr. Seale: This motherfucker is tight and it is stopping my blood. Mr. Kunstler: Your Honor, this is an unholy disgrace to the law that is going on in this courtroom and I as an Americ