## Facts

- Harvey R. Bitter was tried in federal district court on 18 counts of mail fraud under 18 U.S.C. § 1341 and one count of using an assumed name under 18 U.S.C. § 1342.
- On the third day of trial, after the government rested earlier than expected, Bitter obtained permission to leave the courthouse during a 45-minute recess to collect defense evidence from his office.
- Bitter returned 37 minutes late.
- Immediately upon his return, and without warning, hearing, or explanation, the trial judge ordered Bitter into custody for the remainder of the trial.
- Although counsel was told Bitter would be housed in a county jail about 18 miles away, Bitter was held in a different jail about 40 miles from the courtroom.
- Defense counsel repeatedly attempted to secure Bitter’s release during the trial but was unsuccessful; Bitter remained jailed throughout the defense case.
- Bitter was convicted on seven counts of mail fraud, sentenced to one year and one day on each count (concurrent), and fined \$3,500 total.
- The court of appeals affirmed; the Supreme Court granted certiorari.

## Issues

1. Whether a trial judge may remand a defendant to custody for the remainder of trial, based on a single instance of tardiness, without warning, hearing, or stated justification.
2. Whether such custody, imposed outside ordinary contempt or bail procedures and involving confinement far from the courthouse, unjustifiably burdens the defense and interferes with the right to counsel.

## Decision

- The Supreme Court reversed.
- The Court held the custody order was punitive in character, and required procedures for imposing punishment were not followed.
- The Court held the order could not be justified as necessary to facilitate the orderly progress of the trial.
- The Court concluded the confinement, including the distance of the jail from the courthouse, placed an unjustified burden on the defense.

## Legal Principles

- A trial judge has authority to control trial proceedings, including revoking bail and remanding a defendant to custody to protect the orderly and expeditious progress of trial.
- That authority must be exercised with restraint and only to the extent justified by danger presented by the defendant’s conduct or by a significant risk of interference with trial progress or order.
- When confinement functions as punishment rather than a legitimate trial-management measure, the court must follow the procedures required for imposing such punishment.
- A custody order during trial that substantially hinders attorney-client consultation and defense preparation, without adequate justification and procedure, is improper and warrants reversal.

## Conclusion

The Supreme Court reversed because the trial court’s unexplained mid-trial jailing of the defendant for a brief tardiness episode operated as punishment imposed without required procedures and unjustifiably burdened the defense and the defendant’s ability to consult counsel.


Bitter v. United States, 389 U.S. 15 (1967)