United States v. Dougherty

BAZELON, Chief Judge,

concurring in part and dissenting in part:

I concur in the Court’s discussion of the statutory right of self-representation in criminal cases. In view of our holding that the statutory right is “unqualified,” our decision need not rest on the asserted constitutional right to proceed pro se. I emphasize, however, that my concurrence reflects no retreat from the position I expressed thirteen years *102 ago in Brown v. United States, 105 U.S.App.D.C. 77, 84 , 264 F.2d 363, 370 (1959) (en banc) (dissenting opinion). I believed then, and I believe today, that the sixth amendment guarantees a defendant the right to act on his own behalf in resisting a criminal prosecution.

My disagreement with the Court concerns the issue of jury nullification. As the Court’s opinion clearly acknowledges, there can be no doubt that the jury has “an unreviewable and unreversible power * * * to acquit in disregard of the instructions on the law given by the trial judge * * Majority opinion at 1132. More important, the Court apparently concedes — although in somewhat grudging terms — that the power of nullification is a “necessary counter to case-hardened judges and arbitrary prosecutors,” 1 and that exercise of the power may, in at least some instances, “enhance, the over-all normative effect of the rule of law.” Id. at 1137. We could not withhold that concession without scoffing at the rationale that underlies the right to jury trial in criminal eases, 2 and belittling some of the most legendary episodes in our political and jurisprudential history. 3

The sticking point, however, is whether or not the jury should be told of its power to nullify the law in a particular case. Here, the trial judge not only denied a requested instruction on nullification, but also barred defense counsel from raising the issue in argument before the jury. The majority affirms that ruling. I see no justification for, and considerable harm in, this deliberate lack of candor.

At trial, the defendants made no effort to deny that they had committed the acts charged. Their defense was designed to persuade the jury that it would be unconscionable to convict them of violating a statute whose general validity and applicability they did not challenge. An instruction on nullification — or at least some argument to the jury on that issue — was, therefore, the linchpin of the defense.

At the outset it is important to recognize that the trial judge was not simply neutral on the question of nullification. His instruction, set out in part in the margin, 4 emphatically denied the existence of a “legal defense” based on “sincere religious motives” or a belief that *103 action was justified by “some higher law.” That charge was not directly inconsistent with the theory of jury nullification. Nullification is not a “defense” recognized by law, but rather a mechanism that permits a jury, as community conscience, 5 to disregard the strict requirements of law where it finds that those requirements cannot justly be applied in a particular case. Yet the impact of the judge’s instruction, whatever his intention, was almost surely to discourage the jury from measuring the defendants’ action against community concepts of blameworthiness.

Thus, we are left with a doctrine that may “enhance the over-all normative effect of the rule of law,” but, at the same time, one that must not only be concealed from the jury, but also effectively condemned in the jury’s presence. Plainly, the justification for this sleight-of-hand lies in a fear that an occasionally noble doctrine will, if acknowledged, often be put to ignoble and abusive purposes — or, to borrow the Court’s phrase, will “run *104 the risk of anarchy.” Majority opinion at 1134. A breakdown of the legal order is not a result I would knowingly encourage or enjoy. But the question cannot be resolved, at least at this stage of the argument, by asking if we are for or against anarchy, or if we are willing to tolerate a little less law and order so that we can permit a little more jury nullification. No matter how horrible the effect feared by the Court, the validity of its reasoning depends on the existence of a demonstrable connection between the alleged cause (a jury nullification instruction or argument to the jury on that issue) and that effect. I am unable to see a connection.

To be sure, there are abusive purposes, discussed below, to which the doctrine might be put. The Court assumes that these abuses are most likely to occur if the doctrine is formally described to the jury by argument or instruction. That assumption, it should be clear, does not rest on any proposition of logic. It is nothing more or less than a prediction of how jurors will react to the judge’s instruction or argument by counsel. And since we have no empirical data to measure the validity of the prediction, we must rely on our own rough judgments of its plausibility.

The Court reasons that a jury uninformed of its power to nullify will invoke that power only where it “feel[s] strongly about the values involved in the case, so strongly that it [will] itself identify the case as establishing a call of high conscience * * Majority opinion at 1136. In other words, the spontaneous and unsolicited act of nullification is thought less likely, on the whole, to reflect bias and a perverse sense of values than the act of nullification carried out by a jury carefully instructed on its power and responsibility-

It seems substantially more plausible to me to assume that the very opposite is true. The juror motivated by prejudice seems to me more likely to make. spontaneous use of the power to nullify, and more likely to disregard the judge’s exposition of the normally controlling legal standards. The conscientious juror, who could make a careful effort to consider the blameworthiness of the defendant’s action in light of prevailing community values, is the one most likely to obey the judge’s admonition that the jury enforce strict principles of law.

Moreover, if it were true that nullification which arises out of ignorance is in some sense more worthy than nullification which arises out of knowledge, the Court would have to go much further. For under the Court’s assumption, the harm does not arise because a jury is told of its power to disregard the law, but because it knows of its power. Logically construed, the Court’s opinion would seem to require the disqualification at voir dire of any prospective juror who admitted to knowledge of the doctrine. By excluding jurors with knowledge of the doctrine the Court could insure that its invocation would be spontaneous. And yet, far from requiring the exclusion of jurors who are aware of the power, the Court takes comfort in the fact that informal communication to the jury “generally convey[s] adequately enough the idea of prerogative, of freedom in an occasional case to depart from what the judge says.” Majority opinion at 1135. One cannot, it seems to me, have the argument both ways. If, as the Court appears to concede, awareness is preferable to ignorance, then I simply do not understand the justification for relying on a haphazard process of informal communication whose effectiveness is likely to depend, to a large extent, on whether or not any of the jurors are so well-educated and astute that they are able to receive the message. If the jury should know of its power to disregard the law, then the power should be explicitly described by instruction of the court or argument of counsel.

My own view rests on the premise that nullification can and should serve an important function in the criminal process. I do not see it as a doctrine that exists only because we lack the power to punish *105 jurors who refuse to enforce the law or to re-prosecute a defendant whose acquittal cannot be justified in the strict terms of law. The doctrine permits the jury to bring to bear on the criminal process- a sense of fairness and particularized justice. The drafters of legal rules cannot anticipate and take account of every case where a defendant’s conduct is “unlawful" but not blameworthy, any more than they can draw a bold line to mark the boundary between an accident and negligence. It is the jury — as spokesman for the community’s sense of values — that must explore that subtle and elusive boundary.

Admittedly, the concept of blameworthiness does not often receive explicit recognition in the criminal process. But it comes very close to breaking through the surface in cases where the responsibility defense is raised, see United States v. Brawner, 153 U.S.App.D.C. 1 , at 62, 471 F.2d 969, at 1030 (1972) (en banc), (separate opinion); United States v. Bennett, 148 U.S.App.D.C. 364, 368-370 , 460 F.2d 872, 876-878 (1972); United States v. Eichberg, 142 U.S.App.D.C. 110, 113 , 439 F.2d 620, 623 (1971) (concurring opinion), and it is implicit in every case where criminal sanctions are imposed. More than twenty-five years ago this Court recognized that “[o]ur collective conscience does not allow punishment where it cannot impose blame.” 6 And the Supreme Court, in a well-known opinion by Justice Jackson, has pointed out that

courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as “felonious intent,” “criminal intent,” “malice aforethought,” “guilty knowledge,” “fraudulent intent,” “wilfulness,’’ “scienter,” to denote guilty knowledge, or “mens rea,” to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes.' 7

The very essence of the jury’s function is its role as spokesman for the community conscience in determining whether or not blame can be imposed. 8

I do not see any reason to assume that jurors will make rampantly abusive use of their power. Trust in the jury is, after all, one of the cornerstones of our entire criminal jurisprudence, and if that trust is without foundation we must re-examine a great deal more than just the nullification doctrine. Nevertheless, *106 some abuse can be anticipated. If a jury refuses to apply strictly the controlling principles of law, it may — in conflict with values shared by the larger community — convict a defendant because of prejudice against him, or acquit a defendant because of sympathy for him and prejudice against his victim. Our fear of unjust conviction is plainly understandable. But it is hard for me to see how a nullification instruction could enhance the likelihood of that result. The instruction would speak in terms of acquittal, not conviction, and it would provide no comfort to a juror determined to convict a defendant in defiance of the law or the facts of the ease. Indeed, unless the jurors ignored the nullification instruction they could not convict on the grounds of prejudice alone. Does the judge’s recitation of the instruction increase the likelihood that the jury will ignore the limitation that lies at its heart ? I hardly think so.

As for the problem of unjust acquittal, it is important to recognize the strong internal check that constrains the jury’s willingness to acquit. Where defendants seem dangerous, juries are unlikely to exercise their nullification power, whether or not an explicit instruction is offered. Of course, that check will not prevent the acquittal of a defendant who may be blameworthy and dangerous except in the jaundiced eyes of a jury motivated by a perverse and sectarian sense of values. But whether a nullification instruction would make such acquittals more common is problematical, if not entirely inconceivable. In any case, the real problem in this situation is not the nullification doctrine, but the values and prejudice that prompt the acquittal. 9 And the solution is not to condemn the nullification power, but to spotlight the prejudice and parochial values that underlie the verdict in the hope that public outcry will force a re-examination of those values, and deter their implementation in subsequent cases. Surely nothing is gained by the pretense that the jurors lack the power to nullify, since that pretense deprives them of the opportunity to hear the very instruction that might compel them to confront their responsibility.

One often-cited abuse of the nullification power is the acquittal by bigoted juries of whites who commit crimes (lynching, for example) against blacks. 10 That repellent practice cannot be directly arrested without jeopardizing important constitutional protections — the double jeopardy bar and the jury’s power of nullification. But the revulsion and sense of shame fostered by that practice fueled the civil rights movement, which in turn made possible the enactment of major civil rights legislation. That same movement spurred on the revitalization of the equal protection clause and, in particular, the recognition of the right to be tried before a jury selected without bias. 11 The lessons we learned from these abuses helped to create a climate in which such abuses could not so easily thrive.

Moreover, it is not only the abuses of nullification that can inform our understanding of the community’s values and standards of blameworthiness. The noble uses of the power — the uses that “enhance the over-all normative effect of the rule of law” — also provide an important input to our evaluation of the substantive standards of the criminal law. The reluctance of juries to hold defendants responsible for unmistakable violations of the prohibition laws told us much about the morality of those laws and about the “criminality” of the conduct they proscribed. And the same can be said of the acquittals returned under the fugitive slave law 12 as well as con *107 temporary gaming and liquor laws. 13 A doctrine that can provide us with such critical insights should not be driven underground.

On remand the trial judge should grant defendants’ request for a nullification instruction. At the very least, 14 I would require the trial court to permit defendants to argue the question before the jury. But it is not at all clear that defendants would prevail even with the aid of an instruction or argument. After all, this ease is significantly different from the classic, exalted cases where juries historically invoked the power to nullify. Here, the defendants have no quarrel with the general validity of the law under which they have been charged. They did not simply refuse to obey a government edict that they considered illegal, and whose illegality they expected to demonstrate in a judicial proceeding. Rather, they attempted to protest government action by interfering with others — specifically, the Dow Chemical Company. This is a distinction which could and should be explored in argument before the jury. If revulsion against the war in Southeast Asia has reached a point where a jury would be unwilling to convict a defendant for commission of the acts alleged here, we would be far better advised to ponder the implications of that result than to spend our time devising stratagems which let us pretend that the power of nullification does not even exist.

ADAMS, Circuit Judge:

This case presents several difficult and subtle issues. Their resolution requires a sensitive understanding of human dignity, American legal and political history, and the interrelationship of those factors with the present criminal justice system, for it is this system that ensures that all persons may peacefully pursue their interests without undue interference from others.

Here, the defendants, by interrupting the business of a large chemical company, attempted to publicize their dissenting views regarding the morality of the American involvement in the Vietnam War. It is apparent that the defendants attempted to exploit their criminal trial by using it as a platform for further exposition of their beliefs, and to rely on their moral position as a defense of criminal charges lodged against them. In furtherance of their efforts to transform what would otherwise be an ordinary criminal trial into a “political” fray, defendants wished to represent themselves, to deviate from the usual mode of conducting a criminal trial, and to argue to the jury that although they were in violation of the applicable statutes, they should be acquitted because their actions were morally justified.

The rulings of the district court regarding (a) the defendants’ motions to proceed pro se, (b) the defendants’ right to have the court charge the jury as to the nullification issue, and (c) the content of the charge as actually given provide the foundation of this appeal.

In addressing these questions, some of which are to a large extent as philosophical as they are legal, the Court of Appeals is at some disadvantage — especially with regard to self representation — in evaluating the district court’s action from the cold record, divorced from the climate of the time when the trial took place. We must be mindful that the •events in question here — defendants’ criminal acts as well as the trial itself— occurred during a period of passionate *108 and at times bitter political dissent. Several so-called “political” trials, including those of Dr. Benjamin Spoek, the Catonsville Nine, and the Chicago Seven, occurred prior to this proceeding. In particular, it is significant that this trial closely followed that of the Chicago Seven, a trial wracked with violent disruptions when the defendants there challenged the underlying structure of the criminal justice system as we know it today.

In the context of what was transpiring in the judicial process in 1968 and 1969, the trial judge here was faced with a formidable task. On one hand, he had to preserve the judicial atmosphere vital in criminal proceedings to assure that both the Government and the defendants received a fair trial on the merits. The judge could not help but be aware that as a society we believe that an orderly, adversary trial by jury is a most efficacious means of arriving at the truth of the matters into which the court is inquiring. On the other hand, he had to take account of the asserted rights of the defendants to present themselves as moral persons — possessed with dignity and freedom of spirit, attributes upon which our system of Government was founded and built — as they sought to be acquitted of their crimes. In evaluating whether the trial judge erred, we must be cognizant of the delicate balance he had to strike between ordered tranquility and America’s irrepressible desire for liberty. Only if the court unduly weighted the scales against the defendants, either by his application of the facts of this ease to the rules governing his actions or by his interpretation of the controlling law, may we reverse the convictions.

The apposite law, in my judgment, is accurately set forth in Judge Leventhal’s opinion. Specifically, I concur in his holding that defendants have a statutory right to proceed pro se in a federal criminal trial, and that, in this case, it is not necessary to decide the question in Constitutional terms. 1 I also concur in the conclusion that the right to proceed pro se is waivable, either expressly or constructively, for example, by untimely assertion or by disruptive behavior. However, I disagree with Judge Leventhal’s factual conclusion that the defendant’s behavior here did not amount to a constructive waiver of the pro se right. Because I do not consider that the trial judge violated this right of the defendants, it is not necessary to decide whether such a violation may nevertheless be considered harmless error.

Since I would not reverse these convictions based on violation of defendants’ *109 right to self-representation, I need not express an opinion on the issues of jury nullification and the charge to the jury. With regard to these latter questions, Judge Leventhal’s statement of the law is wholly acceptable.

A careful review of the transcript of the proceedings with respect to defendants’ motions to dispense with counsel indicates that the defendants on many occasions interrupted the proceeding for various reasons, despite the fact they were represented by counsel at that time. The printed record cannot inform us whether such interruptions were violent, impolite, contemptuous, or made with an impertinent or sarcastic tone of voice. However more than once the judge had to threaten intervention by the marshals to impress upon defendants that they had to obey orders of the court to be seated. At other times, the language used by the defendants appeared to be disrespectful or even rude. That the trial judge appeared to tolerate many instances of this type of behavior, and even engaged in discourse with defendants, does not prove that he acquiesced in such extraordinary tactics, but rather indicates that he was attempting to preserve some sort of order.

Although it may be argued that there are some things in the judicial process more important than decorum in a courtroom, we are not faced with such perplexing alternatives here. Dissent is a healthy manifestation of the freedoms we as a nation profess and cherish. And a criminal trial might serve as the seed around which a point of view may crystallize. But a courtroom, is not an arena in which dissention, particularly of a disruptive nature, may supplant, or even take precedence over, the task of administering justice.

As mentioned earlier, it is not without significance that this trial occurred at a time when the judicial system was being subjected to great stress because of the actions of some defendants and attorneys. The trial judge was surely aware of the publicity that attended the commission of the charged crimes, and the notoriety the trial itself would achieve. To paraphrase a slogan of the “new left”, he did not have to be a weatherman to tell which way the wind was blowing.

Although a gale may have been raging in the courts at that time, challenging the very assumptions upon which our system of justice is based, a counter-current was also evident. Only a month after the trial here in question, the Supreme Court delivered its opinion in Illinois v. Allen, supra,. There, the various justices gave notice that they were aware of the storm and the damage it could wreak, and that they were determined that the judiciary have the ability to steer clear of the danger. 2

*110 Certainly, what transpired here, coupled with the real threat of further disruption, was sufficient to alert the trial judge to what could be expected if the motions to dispense with counsel were granted. Thus, his determination that to grant the motions would turn the trial into a shambles does not appear to be unreasonable.

Accordingly, I would conclude that defendants had, by their conduct, waived their right to proceed pro se, and would affirm the rulings by the district court that the defendants in these circumstances had to be represented by counsel. Based on this and on Judge Leventhal’s opinion with regard to nullification and the charge, I would affirm the judgments of convictions.

. Majority opinion at 1136 and n. 52, quoting Fortas, Follow-Up/The Jury, Center Magazine 61 (July, 1970).

. See Williams v. Florida, 399 U.S. 78, 100 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970); Duncan v. Louisiana, 391 U.S. 145, 155-156 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968); United States v. Spook, 416 F.2d 165 , 180-182 (1st Cir. 1969); United States v. Bennett, 148 U.S.App.D.C. 364, at 368 , 460 F.2d 872, at 876 (1972); United States v. Eichberg, 142 U.S.App.D.C. 110, 113 , 439 F.2d 620, 623 (1971) (Bazelon, C. J., concurring); Scheflin, Jury Nullification: The Right to Say No, 45 S.Cal.L.Rev. 168, 187-88 (1972).

In Dunean the Supreme Court stated: A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. * * * Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the complaint, biased, or eccentric judge. * * * Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.

391 U.S. at 155-156 , 88 S.Ct. at 1451 .

. See generally Scheflin, supra, note 2; H. Kalven & H. Zeisel, The American Jury 310-11 (1966); J. Alexander, A Brief Narration of the Case and Trial of John Peter Zenger (1963); cf. Duncan v. Louisiana, 391 U.S. 145, 155-156 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968).

. Transcript at 825-27 :

Finally, ladies and gentlemen, you are not trying the Vietnam war. The Vietnam war is not an issue in this case. You are not trying ideas. You are not trying the United States. You *103 are not trying society. You are not trying any individual, any corporation large or small. For there can be no freedom, no equal opportunity in an environment of criminal behavior. No nation should tolerate disregard of the law.

As Mr. Justice Goldberg said in the recent Supreme Court case of Cox v. Louisiana: “The constitutional guarantee of liberty impiles the existence of an organized society maintaining public order without which liberty would be lost.”

We also reaffirm the repeated decisions of this court that there is no place for violence in a democratic society dedicated to liberty under law, and that the right of peaceful protest does not mean that everyone with opinions or beliefs to express may do so at any time and at any place. There is a proper time and place for even the most peaceful protest and a plain duty and responsibility on the part of all citizens to obey all valid laws and regulations.

If you find that the Government has proven beyond a reasonable doubt that one or more of the defendants committed each of the elements comprising the crimes of second degree burglary and/or malicious destruction of property, then I must instruct you further that the law does not recognize as a defense to either of these charges that the defendants were motivated to commit their acts by sincere political, religious or moral convictions or in obedience to some higher law.

Individuals who believe that the Vietnam War is illegal or immoral or that certain activities of the Dow Company are undesirable have the right under our system of government to express their views or to protest these events by any lawful means, such as by peaceful picketing or parading. But the Constitution of the United States does not protect as a form of symbolic speech the destruction of private property and the violation of valid laws designed to protect society.

The defendants may have been motivated by the highest moral principles, and they may have been sincerely and passionately inspired. But such motives do not confer immunity from prosecution or conviction for the violation of a valid law, and as such the motives of the defendants are not controlling in the ease which is before you for decision.

Therefore, if you find beyond a reasonable doubt that one or more of the defendants had the required intent to commit one or more of the offenses with which they are charged, then it is no defense that he or she also had one or more other intentions, reasons, purposes, or motives, such as to protest against the Vietnam War or the activities of the Dow Company. Nor is it a defense that he or she acted from sincere, religious motives, or that he or she believed that his or her intent was justified by some higher law.

. I do not contend that the jury is the exclusive spokesman of the community conscience. When the legislature enacts a criminal prohibition it too speaks on behalf of that conscience. But I cannot assume that every criminal statute enacts a rule of liability without fault. The legislative function is to define and proscribe certain behavior that is generally considered blameworthy. That leaves to the jury the responsibility of deciding whether special factors present in the particular case compel the conclusion that the defendant’s conduct was not blameworthy.

. Holloway v. United States, 80 U.S.App.D.C. 3, 4-5 , 148 F.2d 665, 666-667 (1945), quoted in Durham v. United States, 94 U.S.App.D.C. 228 , 242, 214 F.2d 862, 876 (1954).

. Morissette v. United States, 342 U.S. 246, 252 , 72 S.Ct. 240 , 96 L.Ed. 288 (1952) (emphasis supplied). See also United States ex rel. McCann v. Adams, 126 F.2d 774, 775-776 (2d Cir. 1942) (L. Hand, J.), rev’d on other grounds, 317 U.S. 269 , 63 S.Ct. 236 , 87 L.Ed. 268 (1962); Hart, The Aims of the Criminal Law, 23 Law & Contemp.Probs. 401 (1958).

The nullification doctrine derives from the same moral principles as the mens rea or responsibility defense. But in view of my conclusion that the trial judge should have granted a nullification instruction, it is unnecessary for me to decide whether reversal would be required on the theory that the instruction that was offered effectively directed the jury to make a finding that the defendant possessed the necessary mens rea. Compare majority opinion at 1137-1138.

.See Williams v. Florida, 399 U.S. 78, 100 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970); Duncan v. Louisiana, 391 U.S. 145, 155-156 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968); United States ex rel. McCann v. Adams, supra; cf. A. Goldstein, The Insanity Defense 91 (1967):

[The insanity defense] is a normative standard applied to conflicting clusters of fact and opinion by a jury, an institution which is the traditional embodiment of community morality and, therefore, well suited to determining whether a particular defendant, and his act, warrant condemnation rather than compassion.

See also Robinson v. Diamond Housing Corp., 150 U.S.App.D.C. 17, 29 , 463 F.2d 853, 865 (1972).

. See Scheflin, supra note 2, at 226 n. 188.

. See, e. g., Trial and Terror, Newsweek (Nov. 4, 1946), reprinted in Racial Violence in the United States 161-62 (Grimshaw ed. 1969).

. See Carter v. Jury Comm’n, 396 U.S. 320 , 90 S.Ct. 518 , 24 L.Ed.2d 549 (1970); Turner v. Fouche, 396 U.S. 346 , 90 S.Ct. 532 , 24 L.Ed.2d 567 (1970).

. See Scheflin, supra note 2, at 177.

. H. Kalven & H. Zeisel, supra note 3, at 296-97. Jury nullification also provides us with crucial information about the morality of the death penalty. See McGautha v. California, 402 U.S. 183, 199 , 91 S.Ct. 1454, 1463 , 28 L.Ed.2d 711 (1971):

In order to meet the problem of jury nullification, legislatures did not try, as before, to refine further the definition of capital homicides. Instead they adopted the method of forthrightly granting juries discretion which they had been exercising in fact.

. Compare Sparf & Hansen v. United States, 156 U.S. 51 , 15 S.Ct. 273 , 39 L.Ed. 343 (1895).

. Defendants argue that the right to proceed pro se is both Constitutional and absolute. But not all Constitutional rights are absolute. Indeed, the right to be represented by counsel may be intelligently and knowingly waived, Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1937), and the right to discharge one attorney for another after the trial lias begun is subject to the trial court’s discretion, see Evans v. Ockershausen, 69 U.S.App.D.C. 285 , 100 F.2d 695 (1938). Other rights, such as the very important right to be present during the trial itself, may be waived by obstreperous conduct. Illinois v. Allen, 397 U.S. 337 , 90 S.Ct. 1057 , 25 L.Ed.2d 353 (1970). The considerations deemed important in Allen apply to a case such as this.

In another case, it may be important to distinguish the source of the right to proceed pro se. If that right is Constitutional in origin, as held in United States v. Plattner, 330 F.2d 271 (2d Cir. 1964), then any violation of that right at all might require a remand for new trial, despite the absence of prejudice. See id., at 273 , and the cases cited in footnote 2 therein. On the other hand, if the right is statutory only, then it may be subject to the harmless error doctrine. Similarly, if the right here asserted is enshrined in the Constitution, rather than established by statute, then a much more serious question regarding waiver would be presented.

However, these questions need not be decided in this case because the record here clearly establishes a waiver of the right to proceed pro se, even if such right is deemed Constitutional in nature.

. Mr. Justice Black, writing for the majority, expressed the concerns of the bench, the bar, and the majority of citizens who were aware of what was occurring:

“ * * * But our courts, palladiums of liberty as they are, cannot be treated disrespectfully with impunity. Nor can the accused be permitted by his disruptive conduct indefinitely to avoid being tried on the charges brought against him. It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humiliated and their orderly progress thwarted and obstructed by defendants brought before them charged with crimes. As guardians of the public welfare, our state and federal judicial systems strive to administer equal justice to the rich and the poor, the good and the bad, the native and foreign born of every race, nationality, and religion. Being manned by humans, the courts are not perfect and are bound to make some errors. But, if our courts are to remain what the Founders intended, the citadels of justice, their proceedings cannot and must not be infected with the sort of scurrilous, abusive language and conduct paraded before the Illinois trial judge in this ease.” 397 U.S. at 346-347 , 90 S.Ct. at 1062.

Justice Brennan, recognizing the importance of orderly trials, also set forth his views in a concurring opinion:

“ * * * The degree of liberty and equality that exists today has been the *110 product of unceasing struggle and sacrifice. Much remains to be done — so much that the very institutions of our society have come under challenge. Hence, today, as in Lincoln’s time, a man may ask ‘whether [this] nation or any nation so conceived and so dedicated can long endure’. It cannot endure if the Nation falls short on the guarantees of liberty, justice, and equality embodied in our founding documents. But it also cannot endure if we allow our precious heritage of ordered liberty to be ripped apart amid the sound and fury of our time. It cannot endure if in individual cases the claims of social peace and order on the one side and of personal liberty on the other cannot be mutually resolved in the forum designated by the Constitution. If that resolution cannot be reached by judicial trial in a court of law, it will be reached elsewhere and by other means, and there will be grave danger that liberty, equality, and the order essential to both will be lost.” Id. at 348, 90 S.Ct. at 1063.

And Justice Douglas, also cognizant of the threat posed by the strategy of disruption, stated in a separate opinion:

“I agree with the Court that a criminal trial, in the constitutional sense, cannot take place where the courtroom is a bedlam and either the accused or the judge is hurling epithets at the other. A courtroom is a hallowed place where trials must proceed with dignity and not become occasions for entertainment by the participants, by extraneous persons, by modern mass media, or otherwise.”