In Re Murchison.

Mr. Justice Reed and Mr. Justice Minton,

dissenting,

with whom Mr. Justice Burton joins.

The Court holds that it is unconstitutional for a state judge to punish a contempt, previously committed before him while acting as a so-called one-man grand jury, after a full hearing in open court. It holds that White, in being so punished for his blanket refusal to answer any questions before the grand jury, and Murchison, in being so punished for perjury before the same body, were deprived of their liberty without due process of law.

This conclusion is not rested on any irregularity in the proceedings before either the grand jury or the court. Under Michigan procedure a single state judge makes the *140 grand jury investigation, not in secret, but with other public officials to aid him, and a transcript is made of the testimony. There is certainly nothing unconstitutional about this. A State may reduce the customary number of grand jurors to one, and impart the investigatory duty to a member of its judiciary if it so desires. Further, the accused is afforded a full hearing in open court, with a statement of charges, benefit of counsel, and a full opportunity to explain his conduct before the grand jury, before being held in contempt. Thus all the requirements set down in In re Oliver, 333 U. S. 257 , are met.

The Court’s determination is rested on the sole fact that the same judge first cited petitioners for contempt committed in his presence, and then presided over the proceedings leading to the final adjudication. It is neither shown nor alleged that the state judge was in any way biased. Nor is this required by the Court, for it holds, as a matter of law, that the judge’s “interest” in a conviction makes the proceedings inherently prejudicial and thus constitutionally invalid. The fact that the “interest” of the state judge in this procedure is no different from that of other judges who have traditionally punished for contempt leads us to dissent.

In Sacher v. United States, 343 U. S. 1 , we upheld the power of a federal district judge to summarily punish a contempt previously committed in his presence. In that case, after a trial which had extended for some nine months, the trial judge issued a certificate summarily holding defense counsel in contempt for their actions during the trial. There were no formalities, no hearings, no taking of evidence, no arguments and no briefs. We held that such a procedure was permitted by Rule 42 of the Federal Rules of Criminal Procedure which codified the “prevailing usages at law.” The Court specifically rejected the contention that the judge who heard the contempt was disqualified from punishing it and should be required *141 to assume the role of accuser or complaining witness before another judge. In Offutt v. United States, 348 U. S. 11 , the Court simply stated an exception: when the trial judge becomes personally embroiled with the contemnor, he must step aside in favor of another judge. That decision was rested upon our supervisory authority over the administration of criminal justice in the federal courts. The Court now holds, even though there is no showing or contention that the state judge became embroiled or personally exercised, or was in any way biased, that as a matter of constitutional law — of procedural due process — a state judge may not punish a contempt previously committed in his presence. This seems inconsistent with all that has gone before.

The Court, presumably referring to the situation in the federal courts, states that the “adjudication by a trial judge of a contempt committed in his immediate presence in open court cannot be likened to the proceedings here.” The reason that it cannot, we are told, is because “we held in the Oliver case that a person charged with contempt before a ‘one-man grand jury’ could not be summarily tried.” This is hardly explanatory, for the question of whether the hearing is to be summary or plenary has no bearing on the attitude or “interest” of the judges in the two situations, which is indistinguishable. The simple fact is that in the federal courts we allow the same judge who hears the contempt and issues the certificate to punish it subsequently and summarily, but in this case we do not allow such punishment even after a full court trial. The only factual difference between Sacher and this case is that the contempt in Sacher was committed at a public trial. When the contempt is not committed in open court, we require that the criminal conviction be in public and that the individual be given a full hearing, with an opportunity to defend himself against the charges proffered and to make a record from which to appeal. In re *142 Oliver, 333 U. S. 257 . Petitioners had all this. They are not entitled to more.

We do not see how it can be held that it violates fundamental concepts of fair play and justice for a state judge after a full court trial to punish a contempt previously observed when acting as a grand jury, when it has been held that it is perfectly proper for a federal judge to summarily punish a contempt previously observed in open court. It seems to us that the Court has imposed a more stringent requirement on state judges as a matter of due process than we have imposed on federal judges over whom we exercise supervisory power.

The Court relies heavily on Tumey v. Ohio, 273 U. S. 510 . There we held that it deprives a defendant of due process to “subject his liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.” Id., at 523 . It is one thing to hold that a judge has too great an interest in a case to permit the rendition of a fair verdict when his compensation is determined by the result he reaches. It is quite another thing to disqualify a state judge as having too great an interest to render a due process judgment when his sole interest, as shown by this record, is the maintenance of order and decorum in the investigation of crime — an interest which he shares in common with all judges who punish for contempt.

The State of Michigan has decided that in the administration of its criminal law it is wise to have the investigating power in the hands of a judge. It has also decided that the judge who observes the contempt is to preside at the trial of the contemnor. It does not seem that there is here such a violation of accepted judicial standards as to justify this Court’s determination of unconstitutionality.

We would affirm.