“Counsel, I find this interesting. First let me set you straight on a point of law. Twice you have used the word ‘trial’ and now you speak of a ‘mistrial.’ This is, as you know, not a trial, it is not even an adversary situation; it is merely an inquiry for the purpose of determining the identity of the young woman there who calls herself ‘Miss Smith.’ She is charged with no crime, no civil suit against her is before this court; it is simply that her claimed identity has been challenged by petitioners who assert an interest. So this court is assisting in a friendly investigation—helping like a good neighbor in attempting to straighten out a mixup. Not a trial.”
“I stand corrected, Your Honor.”
“Please be careful in your use of technical language. If there is no trial, there can be no mistrial. Do you agree?”
“Perhaps I should use other language, Your Honor. Petitioners feel that, under these disclosed circumstances, you are not the judge who should preside over this, uh, friendly investigation.”
“That is possible. But the matter has reached me in the course of due process and it will continue to remain before me unless compelling reasons are shown why I should step aside. Again on the matter of language, you used the word ‘clandestine.’ The Court will not at this moment consider whether or not Counsel’s choice of this word implies contempt—”
“Your Honor, I assure you—”
“Order. I am speaking. Nor will you discuss that aspect at this time. We will now consider only the meaning of this word. Clandestine’ means ‘hidden, secret, concealed’ with a flavor or connotation of surreptitious, or underhanded, or illicit. Tell me—this alleged relationship: Could it be verified in Who’s Who’?”
“Oh, certainly, Your Honor! That’s where I found it.”
“I know that my own fraternity is noted there; I assume that if appropriate it would be listed in the case of Johann Sebastian Bach Smith. Since you tell me that you have checked it, the Court takes judicial notice for whatever it is worth and requires no further substantiation. . . other than to comment that we could hardly have been members of the same chapter at the same time since we differ by almost half a century in age. Did your investigations show, that Johann Smith and I were jointly members of other organizations? For example Johann Smith was a founding member of the Gibraltar Club—and I am a member, and Miss Smith’s counsel, Mr. Salomon, is a member . . . and you are a member. In what other organizations do I share membership with Johann Smith? Now or in the past.”
“Uh. . . Petitioners have not investigated.”
“Oh, come now, I feel sure that you could turn up others. The Red Cross, for example. Probably the Chamber of Commerce at some time. I seem to recall that when I was a Scout Commissioner Johann Smith was one also. Possibly we’re both in other fraternal bodies. Almost certainly we have served as trustees, or such, for the same charitable or service groups, either simultaneously or successively. I note that you are a Shriner, so am I. Care to comment on the fact?”
“No comment, Your Honor.”
“But you and I almost certainly share several fraternal bonds. The Court takes notice of the wry fact that, since lawyers are not permitted to advertise, as a class they tend to join more organizations—fraternal, social, service, and religious—then do laymen as a class. Since you choose not to comment on the ones that you and I share in common, the Court will on its own motion investigate and place the results in the record. Now as to my alleged obligation to disqualify myself, do you wish to clarify your reasoning? Think it over while we take a recess, as your answer will go into the record. Ten minutes.”
“Order. Counsel for the Petitioners? You have had time to think.”
“Petitioners move that all remarks concerning fraternal associations and like matters be struck from the record.”
“Motion denied. Nothing will be struck from this record. Come now, Counselor, you must have had some theory. State it.”
“Your Honor, at the time I raised the point it seemed important. I now no longer think so.”