“This Court has said . . . that ‘[e]very procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear, and true between the State and the accused, denies the latter due process of law.’”
How later courts described this case
- “This Court has said . . . that ‘[e]very procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear, and true between the State and the accused, denies the latter due process of law.’”
- discussing federal due process guarantees
Written by the judges who cited it.
The opinion
*617 Concukking Opinion by
Mb. Justice Benjamin R. Jones:
While I join in the reversal reached by the opinion written for the majority of this Court by our Chief Justice, I desire to state my reason therefor.
The Committee on Offenses of the Court of Common Pleas of Allegheny County is a body of fifteen members of the Bar appointed by that Court and the President of the Allegheny County Bar Association. On May 26, 1950, that Committee, by a majority vote of its entire membership, decided to bring charges of professional misconduct against Schlesinger. No complaint had been filed against Schlesinger by any person other than the Committee. The Committee not only preferred the charges against Schlesinger and filed a written complaint upon him but it appointed its own counsel to prosecute the charges. The Committee then referred the proceeding for hearing and report to a sub-committee which consisted of three of the members of the same Committee which had initiated the charges. The Committee, in the role of prosecutor, examined and paid the witnesses against Schlesinger, sought to limit Schlesinger’s cross-examination of its own witnesses and the scope of Schlesinger’s rebuttal and impeachment evidence and vigorously prosecuted the charges against Schlesinger. Acting through the sub-committee and in a judicial capacity, the Committee presided over the hearing on the charges which it had initiated, determined the burden of proof which the prosecution had to meet, ruled on matters of evidence, and, finally, determined the law applicable to the evidence adduced. In its capacity as a jury, the Committee passed upon the credibility of not only Schlesinger’s but its own witnesses, determined the inferences to be drawn from such testimony and determined the facts established by the evidence.
*618 Such a situation, in my opinion, does not constitute constitutional due process. This Committee, even though acting with the best of intentions, could not sit in the triple capacity of prosecutor, judge and jury. In Blenko v. Schmeltz, 362 Pa. 365 , 67 A. 2d 99 , we enjoined the conduct of a hearing under just such circumstances, stating, inter alia: “It appears clear to us that the defendant board, in violation of elementary principles, was acting as prosecutor and trial tribunal at the same time.” (p. 374)
It is repugnant to my sense of justice to permit a tribunal which by a majority vote of its members has levied a charge to sit in judgment upon such charge. In In Re Murchison, 349 U.S. 133 , the United States Supreme Court said: “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases ■where he has an interest in the outcome.”
In my opinion, constitutional due process was lacking in this proceeding and, for that reason, I am compelled to vote for reversal of this disbarment.