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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/78229-0.txt b/78229-0.txt new file mode 100644 index 0000000..43befa8 --- /dev/null +++ b/78229-0.txt @@ -0,0 +1,10781 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 78229 *** + + + + + ... AND JUSTICE FOR ALL + + BY + + WILLIAM M. KUNSTLER + + 1963 + OCEANA PUBLICATIONS, INC. + DOBBS FERRY, N. Y. + + + + + © Copyright, 1963, by William M. Kunstler + + All Rights Reserved + + + Library of Congress Catalog Card Number 62-11115 + + Manufactured in the United States of America + + + + + To + + Michael J. Kunstler + + + + +Introduction + + +Years ago, when I tried to enlist the services of the great defender +of the underdog, Clarence Darrow, against a free speech prosecution of +some midwestern radicals, he refused, not because of lack of sympathy +but, as he said, because it was hopeless. “You can’t get anybody off +in these radical cases,” he said. “Whenever I get a case with anything +radical in it I cut it out. I’m not taking any more of them. I am just +defending murderers and other respectable criminals; sometimes I can +get them off.” + +What Darrow observed then is the theme of lawyer Kunstler’s selection +of cases where justice might have yielded to community passion and +prejudice. The cases are not exceptional: they are symptomatic. In +the First World War, passion against dissenters rose so high that, in +surveying the wreckage of the hundreds of federal prosecutions for +anti-war utterances, the then Chief Justice of the United State Supreme +Court, Charles Evans Hughes, was moved to wonder whether “American +democracy could survive another great war, however victoriously waged.” + +Half of the ten dramatic court cases skillfully analyzed by lawyer +Kunstler for laymen are still for me vivid experiences in the struggles +of the American Civil Liberties Union for fair trials against fear +and prejudice. All but two of them occurred during the period of my +active association with the Union from 1920 on. In some the Union was +only indirectly involved; in others it directly took part, and in one, +the trial of Scopes for teaching the theory of evolution, the Union +initiated the prosecution and handled the defense. + +This experience confirms the thesis underlying Mr. Kunstler’s selection +of a few of the hundreds of cases he could have cited to show how +difficult it is for juries and judges to rise above community fears to +deal justly and fairly with unpopular or hated defendants. In most of +the cases, “who you were, not what you did,” was on trial, what you +represented as a threat to majority prejudice or dominant powers, not +what you represented as a force of protest or progress with a claim on +equal justice. + +It is an old story forever new, and the lesson of history needs +constant repetition for us in the United States in terms of our time. +It was just such community hostility that condemned Socrates before +the jury of Athenian citizens, and forced Pontius Pilate to turn over +Jesus of Nazareth to the jury of priests. The witches of Salem were +hung in a fury of community condemnation, with the blessing of clergy +and officials. In our times, Mr. Kunstler could have brought to witness +the hundreds of cases against members of the Industrial Workers of the +World before and after World War I, condemned even before they were +tried as destroyers of property and enemies of government. Or coming up +to date, he could have cited dozens of prosecutions of Communists in +which conviction was a foregone conclusion, whatever the charge. + +His selection omits these cases in favor of more dramatic and +better-known trials illustrating a larger variety of intolerances, +racial, religious and political. Only four of the ten involve political +radicals,--three of them the casualties of cold war fears for national +security. All the defendants are long since dead or freed, with +the sole exception of Morton Sobell, convicted with the executed +Rosenbergs, now serving a savage thirty-year sentence. The stories are +therefore history in the dark chapter of dubious trials, with no call +to present action. + +What lessons can be learned from the record? Mr. Kunstler offers a few +in his preface. I would add one or two of my own. + +The emphasis on due process of law as the basic guarantee of our +liberties, so often voiced by courts and lawyers, and reasonably +true in ordinary trials, is secondary where prejudice prevails. And +prejudice is not confined to the fears of war-time, hot or cold, or to +the racial conflicts dramatized by a case nationally or internationally +famous, as most of these in this book were, but it exists in our +courts every day all over the country. What Negro can be assured that +he will get equal justice with a white man for the same offense? What +Mexican-American in the Southwest? What Puerto Rican in our eastern +cities? Is justice as equal in any court for the non-conformist and +unpopular as for the regulars? + +If our juries and judges are to approach the goal of even-handed +justice, we need the restraints, as Mr. Kunstler suggests, of fewer +trials by newspapers, more searching screening of juries, more resolute +and independent judges, and public defenders, competent to counteract +prejudice, for indigent defendants. I would not tamper with the jury +system, imperfect as it is in rising above community prejudice; but +skilled defense lawyers always know, when there is a choice, whether a +judge or a jury is likely to assure a fairer trial. + +Not all the cases Mr. Kunstler presents came out badly. Some had +salutary effects, even striking. The impact of the Tennessee evolution +case was so profound that, although anti-evolution laws were not +repealed, they were nullified in practice. The resistance to the +McCarthy inquisition, set forth in the Lamont case, combined with the +Senator’s own excess of zeal, destroyed him as a political demagogue +though the prejudice and fears he aroused continue, greatly diminished, +under cold war pressures. The recent school prayer decision will +doubtless do much to clarify the delicate relationship between church +and state. + +The short-range good won from the evils of most of these trials may +be matched by their long-range effects if the lesson Mr. Kunstler +impresses on us is learned in the administration of justice. But it is +a hard task to guard against the prejudices and fears of an aroused +community, as all history shows, and yet one which must be achieved if +our professions of justice are to be vindicated. + + ROGER N. BALDWIN + _Founder of the American Civil + Liberties Union_ + + New York, N. Y. + October 9, 1962 + + + + +Preface + + +In 1953, Professor Edmund M. Morgan, of Vanderbilt University’s School +of Law, in his introduction to a reprint of Felix Frankfurter’s _The +Case of Sacco and Vanzetti_, wrote: “In times when the opinion of the +community is shot through and through with deep-seated prejudices +concerning race, social class, economic theories or political +ideologies, a case in which either the issues or the parties involved +touch these prejudices, arouses passions which becloud judgment and +make impossible a fair consideration of the evidence.” Like Professor +Morgan, I have always felt that “the fixed preconceptions of the +community” can, in too many instances, contribute more to the outcome +of criminal trials than the quantity or quality of the evidence. It was +with this uncomfortable thought in mind that this book was conceived +and written. + +I do not claim that all the cases which appear in this collection bear +out the truth of Morgan’s observation. But they do illustrate some of +the difficulties that confront a defendant who is being tried in an +environment that is, to say the least, hostile to him or his cause. +This does not mean, of course, that his chance of a fair trial are +hopeless. But it goes without saying that he must struggle against +greater odds than those faced by others accused of crime who are more +acceptable to the community. + +Leo Frank, for example, was an outsider and a Jew charged with a +particularly heinous crime. As the judge who presided at his trial so +aptly put it, “If Christ and his angels came down here and showed this +jury Frank was innocent, it would bring him in guilty.” The Scottsboro +boys were southern Negroes accused of raping two white women. The fact +that the complaining witnesses were tramps, the defendants young boys, +and the evidence far from convincing, did not deter three successive +juries from imposing the death penalty. Sacco and Vanzetti were +immigrant Italians whose anarchistic views had made them anathema to a +society which sought its salvation in Attorney General Mitchell Palmer +and his pre-dawn raids. Mary Surratt, Alger Hiss, the Rosenbergs and +Corliss Lamont were, in one way or another, enemies of the state, Tom +Mooney an obstreperous labor agitator in an era of anti-unionism, John +Thomas Scopes a threat to the Bible, and the five petitioners in the +recent Herricks school prayer case against God. + +In all but three of these cases (Mary Surratt was tried by a military +commission, Corliss Lamont’s fate decided by a solitary judge and the +school prayer petitioners were limited to a single-judge court) the +defendants faced juries which were prepared to believe the worst of +them before their trials began. Mrs. Surratt was judged by nine army +officers wholly subservient to a vindictive, autocratic Secretary +of War, and Dr. Lamont, although he was spared a jury trial by the +dismissal of the indictment against him, would undoubtedy have been +confronted by a panel not overly favorable to an acknowledged leftist +who had defied a congressional investigating committee. But, whatever +the mode of trial, or type of tribunal involved, the fundamental fact +remains that all the pariahs had to run the gamut of a hostile climate +of opinion which militated strongly against their chances of success. + +The dilemma of the unpopular defendant (or plaintiff) has caused +grave concern to those interested in the just administration of the +law. Many solutions have been suggested. Some have urged that, as +in Great Britain, the news media be forbidden to report any but the +most rudimentary details of pending civil or criminal cases. Others +have proposed that more frequent changes of venue be granted by the +courts. Still others have questioned the validity of the jury system +itself. It is my hope that the cases in this volume will illustrate the +gravity of the situation and provoke some fruitful discussion of the +problem. As Prof. Morgan points out, “the administration of justice, +particularly in times of crisis, is one of the most important functions +of government.” It deserves the immediate attention of us all. + + WILLIAM M. KUNSTLER + + New York, N. Y. + September 15, 1962 + + + “I PLEDGE ALLEGIANCE TO THE FLAG OF + THE UNITED STATES OF AMERICA AND TO + THE REPUBLIC FOR WHICH IT STANDS, ONE + NATION UNDER GOD, INDIVISIBLE WITH + LIBERTY AND JUSTICE FOR ALL.” + + PLEDGE OF ALLEGIANCE TO THE FLAG + + + + +Table of Contents + + + INTRODUCTION VII + + PREFACE XI + + _1. She Helped to Kill a President_ 1 + UNITED STATES V. SURRATT + + _2. Atlanta’s Northern Jew_ 24 + GEORGIA V. FRANK + + _3. In Union There is Death_ 37 + CALIFORNIA V. MOONEY + + _4. Anarchists With Bloody Hands_ 65 + MASSACHUSETTS V. SACCO AND VANZETTI + + _5. He Defied the Bible_ 102 + TENNESSEE V. SCOPES + + _6. Their Skin was Black_ 120 + ALABAMA V. PATTERSON + + _7. A Traitor from Harvard_ 137 + UNITED STATES V. HISS + + _8. They Gave the Bomb to Russia_ 170 + UNITED STATES V. ROSENBERG + + _9. Contempt by Silence_ 194 + UNITED STATES V. LAMONT + + _10. Five Against God_ 210 + ENGEL V. VITALE + + BIBLIOGRAPHY 230 + + INDEX 232 + + + + +1 + +_She Helped to Kill a President_ + +The United States + +_versus_ + +Mary Eugenia Jenkins Surratt + + +A few minutes after eight o’clock on the morning of Palm Sunday, April +9, 1865, Robert E. Lee sat down at a field table and wrote a note to +General Grant, requesting an interview “with reference to the surrender +of this army.” That afternoon, at the McLean farmhouse on the edge of +Appomattox village, the fifty-eight-year-old Lee turned over the Army +of Northern Virginia to its embarrassed conqueror. The brief surrender +document was written out in pencil by Grant at a table in the McLean +living room and corrected by Lee who, resplendent in dress uniform sat +across the room from the somewhat disheveled Union commander. At 3:45 +p.m., the Confederate general signed his acceptance of Grant’s rather +generous terms and went out to explain to his incredulous troops what +he had done. + +Even though Joe Johnston and Kirby Smith were still at large in the +deep South, the Civil War was all but over. Two days after Appomattox, +Grant and his wife arrived in Washington where the general was promptly +lionized by a city gone wild after more than four nerve-wracking years +of being a front line capital. In honor of the couple, Mrs. Lincoln +had done her part by inviting them to a theatre party at Ford’s Opera +House on the evening of Good Friday, April 14th. _Our American Cousin_, +a new comedy with the incomparable Laura Keene, had been playing to +enthusiastic audiences throughout the North and, although the President +wasn’t particularly overjoyed at the prospect of sitting through +a late-evening play, he knew better than to obstruct Mary’s plans. +However, at the last moment the Grants begged off, primarily because +the general had little stomach for what he termed “show business.” + +At nine o’clock on Good Friday evening, coachman Francis Burns stopped +the White House carriage in front of Ford’s between E and F on Tenth +Street. Outside of the Lincolns, his only other passengers were Major +Henry Reed Rathbone and Clara Harris, an engaged couple who were +filling in for the Grants. When the quartet entered the Presidential +box, Major Rathbone and Miss Harris took the two seats nearest the +stage with their hosts sitting behind them. Lincoln sprawled in a +haircloth rocking chair directly in front of a door that opened on a +narrow hallway. Sometime during the afternoon, a small hole had been +bored in the door, through which it was possible to observe the box’s +occupants from the corridor. + +Shortly after the Lincoln party had entered the box, John F. Parker, a +perennially thirsty patrolman who had been assigned by the Metropolitan +Police to guard the President, decided to leave his post in the hallway +and look for a nearby bar. At 10:15, just as, on stage, Harry Hawk was +referring to Mrs. Mountchessington as “you sockdologizing old mantrap,” +actor John Wilkes Booth opened the now unguarded door and put a bullet +into the head of the dozing man in the rocker. The rest was for the +chroniclers--the leap to the stage, the broken shinbone, the mad dash +across the Navy Yard Bridge, the frenzied manhunt through the woods and +swamps of Northern Virginia, and the end of the trail in a burning barn +on Garrett’s farm just south of Port Royal. + +The self-styled avenger, who believed that “God ... made me the +instrument of his punishment,” was destined to die just before sunrise +on April 26th on the front porch of a Virginia tobacco farm. The cause +of death--a bullet wound in the neck. Whether Booth shot himself, as +Colonel Everton Conger, the leader of the cavalry patrol which had run +him to earth, believed, or was killed by fanatical Sergeant Boston +Corbett who claimed that God had been looking over his shoulder when +he squeezed the trigger, didn’t change the essential fact that the +assassin was as dead as he was ever going to be. The troopers who +searched his body found a small diary and the daguerrotypes of five +women in his pockets. + +Seconds after Booth’s one-shot derringer had earned him a sizeable +place in the history books, a wild-eyed young man on a bay horse +pulled up in front of Secretary of State William H. Seward’s mansion +on Lafayette Square. Pretending to be a messenger sent by Seward’s +physician, he broke into the Secretary’s bedroom where he stabbed him +three times. Only a steel frame which the victim had been wearing to +support a fractured jaw saved him from death. The intruder then fought +his way out of the house, seriously wounding four other people in the +process, and rode off toward the east. + +Meanwhile, four Pennsylvania artillerymen carried the President’s +unconscious form across Tenth Street to William Peterson’s house. There +he was placed on a walnut cot in the first floor bedroom of William +Clark, one of Peterson’s boarders. He lingered during the night, but it +was soon obvious to the six physicians in the room, who could do little +more than remove the pressure-causing blood clots that continuously +formed at the entrance to the wound, that their illustrious patient +would never see another day. By dawn, his breath had become stertorous +and labored and, at 7:22 a.m., Surgeon-General Joseph K. Barnes, +recorded the last heartbeat. “Now,” Secretary of War Edwin M. Stanton +was supposed to have said, as he closed the dead man’s eyes, “he +belongs to the ages.” + +Some four hours earlier, a Metropolitan Police squad, headed by a +detective named Clarvoe, had arrived at a small boardinghouse at 541 +H Street, which was owned by one Mary Eugenia Surratt, a widow who +had come to Washington from Surrattville, Maryland, in the Spring of +’64. They were looking for Mrs. Surratt’s son, John, who, Clarvoe told +her, had just murdered Secretary Seward. When Mrs. Surratt informed +them that John had left for Canada when Richmond fell on April 3rd, +the squad searched the eight-room brick building from cellar to attic. +After ordering Louis J. Weichmann, one of Mrs. Surratt’s borders, to +report to headquarters the next morning, the policemen left the house. + +As soon as Lincoln died, Stanton, to whom one cause was as good as +another so long as he remained _primus motor_, announced that he +would not rest until he had found and prosecuted everybody who had +anything to do with what his reward circulars referred to as “the stain +of innocent blood.” Booth and David E. Herold, a slow-witted youth +whose only redeeming feature was his devotion to the actor, had been +identified as soon as they fled across the Navy Yard Bridge, minutes +after the murder. Herold had been captured by Colonel Conger’s cavalry +patrol just before it set fire to the barn in which the two men were +hiding. + +By that time, Stanton had rounded up seven other persons whom he +accused of conspiring to kill the President. There was Lewis Payne, +a Confederate deserter and the son of a Florida minister, who had +created the havoc at the Seward house. Payne and George A. Atzerodt, a +carriage-maker from Port Tobacco, had both boarded at Mrs. Surratt’s +prior to the assassination. Atzerodt, who, with Herold’s help, was +supposed to kill Vice-President Andrew Johnson at the Kirkwood House, +had lost his nerve and spent the night of April 14th wandering +aimlessly around the streets of Washington. He was finally captured on +April 20th at his cousin’s farm in nearby Germantown. Payne was picked +up when he showed up at the H Street boardinghouse at midnight on April +17th, with his head wrapped in a bloody shirtsleeve, just as Major H. +W. Smith was in the process of arresting Mrs. Surratt. + +Edward Spangler, the cantankerous stage carpenter at Ford’s had held +Booth’s horse while the actor was about his murderous business in the +President’s box. Samuel Arnold and Michael O’Laughlin, both of whom +had known Booth since childhood, had been persuaded by him to help out +in an abortive 1864 scheme to abduct Lincoln and hold him a hostage +until the North came to terms with the Confederacy. After almost a +year of fruitless discussions with Booth about ways and means, both +men had withdrawn from the project. On the night of the President’s +murder, O’Laughlin had been on a drinking bout in Washington with three +friends while Arnold was working for a sutler at Fortress Monroe near +Baltimore. Lastly, there was Dr. Samuel A. Mudd, the Maryland physician +who had set the murderer’s broken leg the morning after the shooting. + +By the end of April, Stanton had everybody he wanted. Herold was +brought back to Washington on the same steamboat as his master’s +blanket-wrapped corpse, and incarcerated with the other prisoners in +the brigs of some gunboats moored near the Navy Yard. All that remained +was the selection of a court. The Secretary of War was determined not +to let his prizes enjoy the benefits of a civil trial and urged the +new President to appoint a military commission to try them. Johnson +agreed and, on May 1st, named a commission composed of seven generals +and two colonels “for the trial of David E. Herold, George A. Atzerodt, +Lewis Payne, Michael O’Laughlin, Edward Spangler, Samuel Arnold, +Mary E. Surratt, Samuel A. Mudd ... implicated in the murder of the +late President, Abraham Lincoln, and the attempted assassination of +William H. Seward, Secretary of State, and in an alleged conspiracy +to assassinate other officers of the Federal Government at Washington +City.” The main charge--“maliciously, unlawfully, and traitorously +murdering the said Abraham Lincoln, then President of the United States +and Commander-in-Chief of the Army and Navy of the United States.” + +As far as Mrs. Surratt was concerned, Brigadier-General Joseph Holt, +the Judge Advocate General, didn’t mince words. She did, he said, +“receive, entertain, harbor and conceal, aid and assist, the said John +Wilkes Booth, David E. Herold, Lewis Payne, John H. Surratt, Michael +O’Laughlin, George A. Atzerodt, Samuel Arnold and their confederates, +with the knowledge of the murderous and traitorous conspiracy ... with +intent to aid, abet and assist them in the execution thereof, and in +escaping from justice after the murder of the said Abraham Lincoln, as +aforesaid.” On March 10th, Mrs. Surratt and the seven other defendants +pleaded, “Not Guilty.” + +Their trial, which began officially at ten a.m. on May 10th, was held +in a large room on the third floor of the Old Penitentiary. Several +days earlier, the defendants had been transferred from their nautical +prisons to cells in the same building where they were kept in solitary +confinement. Even their guards were forbidden by Stanton to utter a +word to them. Shortly after their arrival at the Penitentiary, the male +prisoners’ heads were encased in heavy canvas sacks which were slit in +the vicinity of their mouths. Payne’s attempted suicide by butting his +head against his cell’s stone wall had alerted the Secretary of War to +the possibility that some of his birds might succeed in beating their +brains out before he could properly hang them. When General Hartranft, +the Special Provost Marshal assigned to the commission, suggested the +hoods, Stanton was quick to order them. + +The trial had been scheduled to get underway on Tuesday, May 9th, but +since the defendants all asked for time in which to find lawyers, +General David Hunter, the President of the Commission, postponed +it twenty-four hours. The next morning, Mrs. Surratt applied for +permission, as Benn Pitman, the chief court stenographer recorded it, +“to introduce Frederick Aiken, Esq. and John W. Clampitt, Esq., as +her counsel, which applications were granted.” Dr. Mudd was the only +other defendant to have drummed up a lawyer, and Hunter adjourned the +Commission to the next day “to allow further time for the accused to +secure the attendance of counsel.” + +Aiken and Clampitt were two young attorneys who volunteered their +services in Mary Eugenia’s behalf. Neither had had much experience in +criminal trials and they were only too happy to welcome the assistance +of Reverdy Johnson, the United States Senator from Maryland, who felt +that the least he could do for an old constituent was to help her +defend her life. On Saturday, his co-counsels introduced him to the +Commission, only to find that one member--Brigadier-General T. M. +Harris--objected to Johnson because he had publicly questioned the +legality of the loyalty oath of 1862. When the Senator informed the +Commission that he had merely expressed his opinion that the Maryland +Constitutional Convention of 1864 did not have the authority to make +the taking of such an oath a condition of voting on the new charter, +Harris withdrew his objection. + +As the prisoners filed into the courtroom, Pitman and his fellow +reporters noticed that all except Mrs. Surratt and Dr. Mudd wore +ten-inch manacle bars which prevented them from bringing their hands +together. Mudd sported ordinary handcuffs while the feet of all the +male defendants were shackled together with chains. With Atzerodt and +the half-mad Payne, Stanton had taken the additional precaution of +welding heavy weights to their steel anklets which made it impossible +for them to walk without help from their guards. + +The courtroom itself was a dimly lit room with only four small windows +to illuminate its more than twelve hundred square feet. The prisoners’ +dock consisted of a railed-off raised platform at the far end of the +room. The defendants were separated from each other by blue-clad +guards who sat between them. Mrs. Surratt’s seat was the last chair +on the right side of the platform, just a few feet away from the door +through which prisoners were brought from their cells every morning at +precisely nine o’clock. There were two small field tables directly in +front of the makeshift dock around which the seven defense attorneys +sat. In the middle of the chamber were two long conference tables, one +of which was occupied by the members of the Commission, with the other +reserved for the official reporters. The witness stand was located +in dead center between two of the three pillars that supported the +room’s eleven-foot ceiling. The walls had been freshly white-washed and +cocoa-nut matting had been spread over the stone floor. + +As soon as all the defendants were represented by counsel, they were +given permission to withdraw their “Not Guilty” pleas and attack the +Commission’s jurisdiction. Each prisoner took the position that, since +they were all civilians and there were appropriate Washington civil +courts available to try them, the Military Commission did not have +any power over them. The Judge Advocate answered this by claiming +unequivocally that “this Commission has jurisdiction in the premises.” +Hunter, who was very much Stanton’s man, went through the formality of +clearing the courtroom, and then announced that the prisoners’ pleas +were over-ruled. After a motion for separate trials had suffered the +same fate, all of the defendants then reaffirmed their innocence. + +As it put in its case against the eight defendants, the prosecution +digressed for hours attempting to prove that Jefferson Davis and the +other Confederate leaders had been responsible for Lincoln’s murder. In +fact, Holt and his aides were determined to show that the assassination +plot had been connected with Southern guerilla warfare in New York +and Vermont as well as with the maltreatment of Union captives at +Andersonville and other rebel prisons. Although, the evidence hardly +supported their grandiose thesis, they succeeded in creating an +illusion that the prisoners in the dock were part of a gigantic plot in +which the President’s death was only one of many factors. + +Late on the afternoon of May 13th, the Provost Marshal escorted Lou +Weichmann to the tri-railed witness stand. Weichmann stated that he +had first met John Surratt in the Fall of 1859 at St. Charles College +in Maryland. Because of this friendship, he had moved to the H Street +boarding house on November 1, 1864. He remembered that his landlady had +requested him to visit John Wilkes Booth at the National Hotel twelve +days before the President’s murder “and say that she wished to see him +on ‘private business’.” Later that same evening, Booth had come to the +house and closeted himself with Mrs. Surratt for more than an hour. + +On April 11th, Mrs. Surratt had asked her boarder to see whether the +actor would lend her his buggy for a trip to Surrattsville, which was +some ten miles southeast of the capital. Booth informed Weichmann that +he had just sold his vehicle, but gave him ten dollars “that I might +hire one.” Weichmann had rented a surrey at Howard’s Stables and then +driven Mrs. Surratt to Surrattsville “for the purpose of seeing Mr. +Nothey, who owed her some money.” The couple had returned to Washington +late that afternoon. + +After lunch on Good Friday, Mrs. Surratt had again asked Weichmann to +drive her into the country because, she told him, she had received a +letter “in regard to that money Mr. Nothey owed her.” She had given +him a ten-dollar bill with which to hire another rig. “We took with us +only two packages; one was a package of papers about her property at +Surrattsville; and another package done up in paper, about six inches, +I should think in diameter. It looked to me like perhaps two or three +saucers wrapped up. This package was deposited in the bottom of the +buggy and taken out by Mrs. Surratt when we arrived at Surrattsville.” +As soon as they reached Lloyd’s tavern at 4:30, Lou had headed for the +taproom while his passenger went into the parlor. When he called for +her at six o’clock, he had noticed that Booth was with her and that the +two were in deep conversation. + +Before John Surratt left Washington early in April, Booth had been a +frequent visitor at 541 H Street. Whenever he called, he had always +asked for young Surratt or his mother. “Sometimes,” Weichmann recalled, +“when engaged in general conversations, Booth would say, ‘John, can +you go upstairs and spare me a word?’ They would then go upstairs and +engage in private conversation which would sometime last two or three +hours. The same thing would sometimes occur with Mrs. Surratt.” + +The witness had first seen Lewis Payne at the boardinghouse early in +March. The defendant, who had been introduced to Weichmann as Wood, +had arrived with no luggage and remained overnight. The next morning, +Payne had taken the early train to Baltimore. He had returned three +weeks later, this time dressed as a Baptist preacher, and said that +he had just finished a seven-day term in a Baltimore prison but that +the experience had taught him a lesson. “He had taken the oath of +allegiance, and was now going to become a good and loyal citizen.” + +From the first time he saw Payne, he was convinced that the latter +was up to no good. One day, he had found a black false mustache “of +medium size” on the table in his room. “When I found it, I thought it +rather queer that a Baptist preacher should use a mustache. I took it +and locked it up because I did not care to have a false mustache lying +round on my table.” Later, he used to entertain his fellow clerks in +the office of the Commissary-General of Prisoners with “a pair of +spectacles and the mustache.” + +One evening, he had returned to the house to find Payne and Johnny +Surratt “playing with bowie knives” in his room. He also saw two +Navy revolvers and four sets of new spurs on the bed. Just after the +assassination, the Metropolitan Police had found one of these spurs in +Atzerodt’s room at the Kirkwood House. Weichmann had seen Atzerodt, +whom the ladies at Mrs. Surratt’s called Port Tobacco, “at the house, +ten or fifteen times.” Like Booth, the carriage-maker had always asked +for John Surratt or his mother. + +Although Weichmann had never seen Arnold or McLaughlin before, he +had met Dr. Mudd walking with Booth on Seventh Street on January 15, +1865. The actor had invited him to join them for a glass of wine in +his room at the National. There, Booth and Mudd had had a private +conversation in the hallway, a discussion which Weichmann was told had +to do with the contemplated purchase of the physician’s farm by Booth. +“Dr. Mudd apologized to me for his private conversation and stated +... that Booth wished to purchase his farm, but that he did not care +about selling it, as Booth was not willing to give him enough.” It was +after this meeting, that Booth had begun to show up frequently at the +boardinghouse. + +Herold had been at H Street once. But Weichmann had also seen him +at Surrattsville in the summer of 1863. The only other time that +he had met him was in March of ’65 when Booth, who was playing the +part of Pescara in _The Apostate_, had given Surratt and himself two +complimentary tickets. On the way to the theatre, the two young men had +met Atzerodt and Herold, who were also going to the play. After the +final curtain, the witness “found Atzerodt and Herold in the restaurant +adjoining the theatre, talking very confidentially to Booth.” When the +Judge Advocate asked him to identify Herold, Weichmann pointed to the +defendant. Benn Pitman, using his brother’s new shorthand system, noted +that Herold “smiled and nodded in recognition.” + +Senator Johnson took over the brunt of the cross-examination. Weichmann +admitted that Mrs. Surratt, whom he had met through her son, was +a “member of the Catholic Church and a regular attendant upon its +services.” In fact, he had usually accompanied her to church on Sunday +mornings. Yes, he was on friendly terms with her son, John, who +had never intimated to him that there was a plot afoot to kill the +President. The only thing young Surratt had told him about Booth was +that he hoped to go on the stage with him in Richmond after the war. + +No, there was nothing suspicious about Mrs. Surratt’s April 11th visit +to Surrattsville. A John Nothey had owed her $479.00 for more than +thirteen years and she had decided to see him personally about it. She +had met Nothey early that afternoon in the parlor of a tavern she had +leased to a retired Washington policeman by the name of John M. Lloyd, +for fifty dollars a month, just before she moved to the H Street house +in the Spring of ’64. Her second visit, three days later, had been +motivated by a letter she had received from George H. Calvert, Jr., +“urging the settlement of the claim of my late father’s estate.” When +her husband died in 1862, he had still owed Calvert Senior part of the +purchase price of the Maryland property. + +When Johnson sat down, young Clampitt took over. He wanted to know +whether Weichmann had heard Booth or Mudd discuss anything subversive +when he saw them at the National Hotel in January. The witness had not. +As for the ten dollars which Booth had given him to hire a buggy for +Mrs. Surratt, “I thought at the time that it was nothing more than an +act of friendship. I said to Booth, ‘I am come with an order for that +buggy that Mrs. Surratt asked you for last evening.’ He said, ‘I have +sold my buggy, but here are ten dollars, and you go and hire one.’” +No, he had never told Mary Eugenia about that. A few minutes later, he +told Aiken that he had written a letter for his landlady to Mr. Nothey, +threatening him with a law suit if he did not pay what he owed her at +once. He remembered that he had helped her to calculate the interest on +“the sum of $479 for thirteen years.” + +When Weichmann stepped down late in the afternoon, Hunter adjourned for +the day. Since the next day--May 14th--was a Sunday, the commission did +not reconvene until the fifteenth. The first witness called on Monday +was Mrs. Surratt’s tenant, John M. Lloyd. He recalled that Herold, +Atzerodt and John Surratt had come to his house some five or six weeks +before the assassination. They had brought with them “two carbines with +ammunition ... a rope from sixteen to twenty feet in length, and a +monkey wrench.” Surratt had asked him to hide these articles and even +showed him a secret hiding place “underneath the joists of the second +floor of the main buildings.” On April 11th, he had met Mrs. Surratt on +the road at Uniontown. “When she first broached the subject to me about +the articles at my place, I did not know what she had reference to. +Then she came out plainer, and asked me about the ‘shooting irons.’... +Her language was indistinct, as if she wanted to draw my attention +to something, so no one else would understand. Finally, she came out +bolder with it, and said that they would be wanted soon.” + +Three days later, when he returned from watching a trial in Marlboro, +he had found Mrs. Surratt in his backyard. “She met me by the wood-pile +as I drove in with some fish and oysters in my buggy. She told me to +have those shooting irons ready that night, there would be some parties +who would call for them. She gave me something wrapped in a piece of +paper which I took upstairs, and found to be a fieldglass. She told me +to get two bottles of whiskey ready, and that these things were to be +called for that night.” + +At midnight, Herold had woken him up and said, “Lloyd for God’s sake, +make haste and get those things.” The tavern owner had immediately gone +to the place where he had hidden the carbines and given them to Herold. +For some reason, he did not turn over the rope and the monkey wrench. +Herold had taken the bottle of whiskey which Lloyd gave him and offered +it to a man who was sitting on a light-colored horse in front of the +tavern. In the bright moonlight, the tavern keeper had watched this +man, who “was a stranger to me,” put the bottle to his lips and drink +deeply. The two men had stayed for only five minutes before riding off +in the direction of Tee Bee, a hamlet a few miles to the south. Just as +they were about to leave, the man who was with Herold had said, “I will +tell you some news, if you want to hear it. I am pretty certain that +we have assassinated the President and Secretary Seward.” As they rode +off, only Herold took a carbine with him. The other man “said he could +not take his because his leg was broken.” + +Whether it was the unseasonably hot weather or a monumental case of +stage fright, Lloyd had wilted fast as the long morning wore on. By +the time the prosecution let him go, he was on the verge of collapse. +As Colonel John A. Bingham, Holt’s chief assistant, put him through +his paces, the ex-policeman’s back country drawl frequently became so +low that even the members of the Commission who were sitting directly +in front of him had difficulty in hearing him. Both Aiken and Clampitt +were constantly imploring Hunter to instruct the whispering witness +to raise his voice, requests that the presiding officer consistently +ignored. + +On cross-examination, Aiken couldn’t shake Lloyd’s story. But he did +get him to admit that there might have been a witness present at the +April 14th conversation with Mrs. Surratt about the “shooting irons.” + + Q. Are you positive again that Mrs. Surratt told you at that time that + the shooting irons would be called for that night? + + A. I am very positive. + + Q. Was there any other persons present during the interview? + + A. Mrs. Offutt, my sister-in-law, was, I believe, in the yard; but + whether she heard the conversation or not I do not know. + +But he couldn’t remember whether or not he had told “these +circumstances” to Mrs. Offutt. + +As for the package which Mrs. Surratt had brought to the tavern with +her on Tuesday, the 11th, he had taken it upstairs at once. + + Q. Did you undo it immediately when you got upstairs? + + A. As soon as I got upstairs, I saw what it was. + + Q. Did you lay the package down and leave it anywhere before you went + upstairs? + + A. No, sir. + +He was sure that he had told Mrs. Offutt, shortly after Mrs. Surratt +had started back to Washington, “that it was a fieldglass she had +brought.” + +He had gone to bed early on Good Friday because “I was right smart +in liquor that afternoon and after night I got more so.” He had been +sleeping soundly when Booth and Herold arrived. As soon as they had +ridden off, Lloyd went back to bed. When he awoke the next morning, +his yard was being picked over by Union soldiers who had traced Booth +and Herold there. He was asked whether he “had seen two men pass that +way in the morning.” He had replied that he had not. “That is the only +thing I blame myself,” he remorsefully told the Commission. “If I had +given the information they asked of me, I should have been perfectly +easy regarding it. That is the only thing I am sorry I did not do.” In +fact, it was not until the middle of the next week that he had decided +to tell Captain George Cottingham, who had locked him in Roby’s Post +Office in Surrattsville for safekeeping, that Booth and Herold had been +at the tavern at midnight on April 14th. + +As Lloyd rushed out of the hearing room, obviously destined for the +first bar he could find, Holt recalled Weichmann. Outside of some +elaboration of his previous testimony about the strange goings-on at +chez Surratt, he contributed nothing further to the case against Mary +Eugenia. He conceded that he had not heard the conversation between +his landlady and Lloyd at Uniontown. It seemed that “Mrs. Surratt +leaned sideways in the buggy and whispered, as it were, in Mr. Lloyd’s +ear.” When Aiken asked him why he hadn’t told somebody about the +suspicious circumstances at the house on H Street, he insisted that +“my suspicions were not of a fixed or definite character.” Besides, +when he had tried to tell Captain Gleason of the War Department about +some peculiar remarks he had heard Booth utter about kidnapping the +President, the officer had “laughed and hooted at the idea.” + +After Lloyd was brought back to explain that he now wasn’t sure where +he had taken the package which Mrs. Surratt had brought to the tavern +on Friday, April 14th, Emma Offutt took the stand. She had been in +the carriage with Lloyd when they had met Mrs. Surratt near Uniontown +three days before the assassination. No, she hadn’t heard a word of the +conversation because her brother-in-law had gotten out of the buggy +to talk to Mrs. Surratt and “I was some distance off.” As far as Good +Friday was concerned, she hadn’t heard anything that was said between +Lloyd and Mary Eugenia in the tavern’s backyard. Mrs. Offutt had spoken +to Mrs. Surratt shortly after the latter’s arrival that afternoon but +she “gave me no charge in reference to her business, only concerning +her farm, and she gave me no packages.” + +Major H. W. Smith had been in charge of the troops who had arrested +Mrs. Surratt on the night of April 17th. “While we were there, Payne +came to the house. I questioned him in regard to his occupation, and +what business he had at the house that time of night. He stated that +he was a laborer, and had come there to dig a gutter at the request of +Mrs. Surratt.” Major Smith had asked Mrs. Surratt, who was sitting in +the parlor, whether she had hired Payne. She had stepped out into the +vestibule and, from a distance of three feet, taken a long look at the +man. “Before God, sir,” she had told Smith, “I do not know this man, +and have never seen him, and I did not hire him to dig a gutter for me.” + +When Holt showed the witness a brown and white coat, he promptly +identified it as the coat that Payne had been wearing that April night. +Ten minutes later, when William E. Doster, Payne’s attorney, asked +him whether he was sure that the brown and white coat had been worn +by the defendant, he repeated that “I am certain that this is the +coat.” Seconds after the words had left his mouth, Major Smith was +busy eating them. Doster shoved a drab-gray coat under his nose and +asked him whether he didn’t want to change his mind. He did. “The coat +now shown me is the one worn by Payne on the night of his arrest,” he +conceded. It was very difficult, he explained, in the poor light of +Mrs. Surratt’s vestibule to tell one coat from another. But now he was +certain that “the coat just shown me is the one.” + +Both Smith and R. C. Morgan, who had been sent to H Street to +superintend “the seizing of papers”, had found photographs of such +Confederate leaders as Beauregard, Jefferson Davis and Alexander H. +Stephens. Lieutenant John W. Dempsey, the officer in charge of the +search party, had turned up a rotogravure of John Wilkes Booth hidden +behind a small framed lithograph entitled _Morning, Noon and Night_ +which hung in Mrs. Surratt’s first floor bedroom. But Captain W. M. +Wermerskirch, Smith’s executive officer, swore that he had also seen a +photograph of Union General George McClellan in the parlor. + +Weichmann had testified that the H Street boardinghouse had been a +beehive of activity during March and early April of ’65. On May 22nd, +Holt called Honora Fitzpatrick, one of Mrs. Surratt’s more attractive +boarders. Miss Fitzpatrick was a very definite young lady. “During the +month of March last,” she said, “I saw John Wilkes Booth and John H. +Surratt there.” Payne and Atzerodt had also dropped in but only once or +twice. Early in March, Payne and Surratt had taken her to a performance +at Ford’s Theatre. “I do not know what box we occupied, but I think it +was an upper box. John Wilkes Booth came into the box while we were +there.” + +On May 23rd, the Judge Advocate called it a day and Messrs. Johnson, +Aiken and Clampitt began their labors on behalf of Mrs. Surratt. Their +first witness was George Cottingham, the special officer who had +arrested John Lloyd on April 15th. For two solid days, he had urged his +prisoner to tell what he knew about Booth and Herold. Finally, Lloyd +had broken down and sobbed, “O, my God, if I was to make a confession, +they would murder me.” When Cottingham had asked him who had designs +on his life, he was informed that it was “these parties that are in +this conspiracy.” + +Then the dam had burst. The conscience-stricken Lloyd had told +Cottingham everything. “He stated to me that Mrs. Surratt had come +down to his place on Friday between 4 and 5 o’clock; that she told him +to have the fire-arms ready; that two men would call for them at 12 +o’clock....” The two men had turned out to be Booth and Herold, who +showed up at midnight and picked up a carbine and some whiskey. As he +had unburdened himself to Cottingham, he began to cry out, “O, Mrs. +Surratt, that vile woman, she has ruined me! I am to be shot! I am to +be shot!” + +Cottingham had obviously caught the defense by surprise. Aiken had +interviewed him in the bar of the Metropolitan Hotel on May 20th +and, at that time, Cottingham had told the lawyer that Lloyd had not +mentioned Mrs. Surratt. But, he insisted, “I had an object in that +answer. He wanted to pick facts out of me in the case, but that is +not my business; I am an officer and I did not want to let him know +anything either way. I wanted to come here to the Court and state +everything that I knew.” + + Q. Did I ask you if Mr. Lloyd, in his confession, said anything at all + in reference to Mrs. Surratt? + + A. That question you put to me, and I answered; I said, “No.” + + Q. That Mr. Lloyd did not say so? + + A. I did say so. I do not deny that. + + Q. Then you gave me to understand, and you are ready now to swear to + it, that you told me a lie? + + A. Undoubtedly, I told you a lie there; for I thought you had no + business to ask me. + + Q. No business! As my witness, had I not a right to have the truth + from you? + + A. I told you you might call me into court; and I state here that I + did lie to you; but when put on my oath, I will tell the truth. + +The fact that the Commissioners of Prince George’s County had offered +a $2000.00 reward for information leading to the arrest of “anybody +connected with the assassination” had had absolutely nothing to do with +this fine distinction! + +At this juncture, the defense introduced two letters which it claimed +would satisfactorily explain Mrs. Surratt’s April 14th trip to +Surrattsville. The first was signed by George H. Calvert, Jr., and +was dated April 12th. When Mr. Calvert took the stand, he identified +his letter which insisted that Mary Eugenia “pay the balance +remaining due on the land purchased by your late husband.” The second +communication, which had been written by the defendant to John Nothey +from Surrattsville on April 14th, demanded that he settle his debt to +her “within the next ten days” or she would “settle with Mr. Calvert +and bring suit against you immediately.” B. F. Gwynn, who had read this +note to the illiterate Mr. Nothey, said he had received it from Mrs. +Surratt at the tavern on the afternoon of the 14th. + +Lloyd had previously testified that he had been “right smart in liquor” +on that fateful Good Friday. The defense team saw nothing to be lost +by exploiting this admission to the fullest. Gwynn had seen him on the +Marlboro road at 4:30 that afternoon and “he had been drinking right +smartly.” Joe Nott, the bartender at Lloyd’s tavern, claimed that his +employer “had been drinking a good deal; nearly every day and night, +too, he was pretty tight. At times, he had the appearance of an insane +man from drink.” As far as the 14th was concerned, “he was pretty tight +that evening.” + +Zad Jenkins, Mrs. Surratt’s brother, thought that Lloyd “was very much +intoxicated at the time.” Richard Sweeney, who had run into the tavern +owner on the Marlboro road, remembered that “he was considerably under +the influence of liquor and he drank on the road.” James Lusby had +ridden back to Surrattsville with him, and said he was “very drunk on +that occasion.” Mrs. Offutt thought that her brother-in-law was “very +much in liquor, more so than I have ever seen him in my life.” So much +so, in fact, that he had become deathly ill shortly after returning +from Marlboro and had to lie down. But Lloyd was evidently a man of +great recuperative powers, because she had seen him heading back to the +barroom a few minutes later. + +As the trial dragged on, it was obvious that the Judge Advocate was +relying heavily on Mrs. Surratt’s refusal (as he called it) to +recognize Payne in the vestibule of her house on the night of April +17th. But Zad Jenkins swore that her “eyesight is defective,” while her +daughter, Anna, testified that “my mother’s eyesight is very bad, and +she has often failed to recognize her friends.” It was only her vanity, +Anna said, that kept her from wearing glasses. Honora Fitzpatrick, who +shared Mrs. Surratt’s room, said that her landlady had “complained +that she could not read or sew at night, on account of her sight. I +have known of her passing her friend, Mrs. Kirby, on the same side of +the street, and not seeing her at all.” Honora had also been unable to +identify Payne that night until “the skull-cap was taken off his head.” +Mrs. Eliza Holahan, another boarder, knew that “Mrs. Surratt’s eyesight +was defective.” Anna Ward, an old friend, stated that the defendant had +frequently “failed to recognize me on the street” + +The rest of the case for Mrs. Surratt consisted of evidence of her +good character and loyalty to the Union. Anna Ward knew her as “a +perfect lady and a Christian,” while four Catholic priests attested +to her religious devotion. Her brother recalled that she frequently +gave “milk, tea and such refreshments as she had in her house to Union +troops when they were passing.” Rachel Semus, whom, Pitman noted, was +“colored”, had been the Surratt cook for six years. She remembered that +her employer had “fed Union soldiers at her house, sometimes a good +many of them; and I know that she always tried to do the best for them +that she could, because I always cooked for them.” Rev. E. F. Wiget, +the president of Gonzaga College, had “always heard everyone speak +very highly of her character.” John and Bill Hoxton, Surrattsville +neighbors, had “never heard her utter a disloyal word.” + +On June 13th, the defense suddenly recalled Mrs. Offutt. As she took +the stand, Aiken told the Commission “that at the time Mrs. Offutt +gave her testimony before, she came here very unwell. If I have been +correctly informed, she had been suffering severely from sickness, and +had taken considerable laudanum. Her mind was considerably confused at +the time, and she now wished to correct her testimony in an important +particular.” Colonel Bingham was on his feet in a flash. + + Q. Is it something you swore to here in court? + + A. Of course, I took the oath when I appeared here. + + Q. Do you want to correct anything you have sworn to here in court? + + A. Yes, sir, I should like to do so. + +There wasn’t much Bingham could do with an obviously determined lady, +and he sat down as abruptly as he had gotten up. + +Mrs. Offutt reminded Hunter and his colleagues that when she had +testified on May 17th, the Judge Advocate had asked her whether Mrs. +Surratt had handed her a package at Lloyd’s tavern on April 14th, and +her answer had been “No.” Now, she remembered that “she did hand me a +package and said she requested to leave it there.” Later on, she had +seen it “lying on the sofa in the parlor.” After Mrs. Surratt had left +for Washington, the witness had noticed that Lloyd went into the parlor +and “had a package in his hand.” She thought that “after the package +was handed to me, it might have been taken by Mrs. Surratt and handed +to Lloyd, but I did not see her give it to him.” + +As Clampitt reminded the Commission, “Mr. Lloyd, under oath, swore that +he received a package from Mrs. Surratt. We wish to show that a package +was received of Mrs. Surratt by Mrs. Offutt. We wish to show in this +connection that it was the same package that Mr. Lloyd swore to. If we +can show that this was the identical package that Mr. Lloyd swore to +receiving, we can show that his testimony is not worth the snap of a +finger.” But Mrs. Offutt did not know what was in the package; all she +remembered was that Mrs. Surratt had given it to her around 5:30 that +afternoon and she had “laid it down” on the parlor sofa. She had no +idea of what had happened to it after that, except that she had seen a +package in her brother-in-law’s hands when he entered the house a few +minutes later. + +When the defense rested on June 13th, the government trotted out John +Ryan, Frank Smith, James P. Young and P. T. Ransford, all of whom +swore that Lou Weichmann, its witness-in-chief, was a very trustworthy +fellow indeed. But only one--Young--had known him for any length of +time. John T. Holohan, who had occupied a second-floor room at Mrs. +Surratt’s in early 1865, swore that he had never heard anyone mention +his landlady’s bad eyesight. With the testimony of six Prince George’s +County neighbors that Zad Jenkins was, among other things, “one of the +most disloyal men in the country,” the prosecution had shot its wad as +far as Mrs. Surratt was concerned. + +The closing arguments began on June 16th and continued for twelve +days. While they droned on, John Clampitt tried to introduce the +joint affidavit of Louis Carland and John P. Brophy, two friends of +Weichmann, who swore that he had told them that he had perjured himself +during the trial. He, and not Mrs. Surratt, had suggested that he try +to borrow Booth’s buggy for the April 11th trip to Surrattsville. He +had also informed Carland and Brophy that he had told a fellow clerk in +the War Department all about the kidnap plot as early as February, and +that Stanton had forced him to testify against Mrs. Surratt despite the +fact that Lou thought she was innocent. But he had played along with +the Secretary of War because “I didn’t want to hang.” + +But Holt wasn’t going to let a piece of notarized paper spring Mary +Eugenia. He rejected it as hearsay and, when Clampitt offered to +produce Brophy in person, the Judge Advocate thumbed down his request +on the ground that it was too late to call another witness. But on +June 27th, eleven days after the prosecution had closed its case, +Holt called one John Cantlin to testify to an anonymous advertisement +printed in the _Selma_ (Alabama) _Dispatch_ on December 1, 1864, +offering to kill Lincoln, Seward, and Johnson, for one million +dollars. Brophy felt so strongly about the rejection of his affidavit +that he tried to see Andrew Johnson about it but the President was +incommunicado as far as the trial was concerned. + +In his closing argument, Reverdy Johnson pointed out that the Military +Commission lacked the power to try Mrs. Surratt. “As counsel for one of +the parties,” he told its members, “I should esteem myself dishonored +if I attempted to rescue my client from a proper trial for the offense +charged against her, by denying the jurisdiction of the Commission, +upon grounds that I did not conscientiously believe to be sound. And, +in what I have done, I have not more had in view the defense of Mrs. +Surratt, than of the Constitution and the laws. In my view, in this +respect, her cause is the cause of every citizen. And let it not be +supposed that I am seeking to secure impunity to any one who may have +been guilty of the horrid crimes of the night of the 14th of April. +Over these, the civil courts of this District have ample jurisdiction, +and will faithfully exercise it if the cases are remitted to them, and +guilt is legally established, and will surely award the punishment +known to the laws.” + +Johnson left it to his youthful associates to discuss the substantive +case against Mrs. Surratt and young Aiken did his best. What had “two +months of patient and unwearying investigation, and the most thorough +search for evidence that was probably ever made” developed insofar +as his client was concerned? Only that she knew Booth (and who in +Washington did not?), that she had taken a message to Lloyd (so had +a hundred others), and that she had failed to recognize Payne (bad +eyes in a dim light). The chief witnesses against her--the unreliable +Weichmann and the drunken Lloyd--were both trying to save their own +skins. He ended in a blaze of rhetoric, asking the Commission’s members +to disregard “suspicion fastened and fed upon the facts of acquaintance +and mere fortuitous intercourse with that man in whose name so many +miseries gather, the assassinator of the President.” + +Colonel Bingham, who summed up for the prosecution, ended his +two-day presentation with the observation that Mrs. Surratt was “as +surely in the conspiracy to murder the President as was John Wilkes +Booth himself.” After all, wasn’t her house the headquarters of the +conspirators? And didn’t she deliver a fieldglass to Lloyd and instruct +him to have the carbines ready? Would an innocent woman fail to +recognize a man who had been her boarder? If she wasn’t involved in the +plot against the President, why did Booth always ask for her when he +visited H Street? As far as the Special Judge Advocate was concerned, +the questions answered themselves. + +When he sat down late in the afternoon of June 28th, the court was +cleared for the last time and the Commission began its deliberation. +It took only minutes for it to decide that Payne, Herold and Atzerodt +should hang. Dr. Mudd, Mike O’Laughlin and Sam Arnold were sentenced +to “hard labor for life,” while Ed Spangler drew six years. But the +Commission couldn’t make up its collective mind about Mrs. Surratt. +On its first ballot, only four of its members voted to execute her. +The other five could not be convinced that the evidence had disclosed +that she was guilty of anything more than running a boardinghouse that +catered to a mighty strange lot of roomers. + +But two days of Washington’s heat did what all of the Judge Advocate’s +arguments had failed to accomplish. At noon, on June 30th, the five +recalcitrants voted that “the said Mary E. Surratt be hanged by the +neck until she be dead, at such time and place as the President of the +United States shall direct.” However, they insisted on appending a +petition for commutation of the “sentence of death ... to imprisonment +for life” to the record of the case which Holt was to submit to +Johnson. On July 5th, the President formally approved the Commission’s +sentences and ordered that Herold, Atzerodt, Payne and Mrs. Surratt be +executed “on the seventh day of July, 1865, between the hours of ten +o’clock a.m. and two o’clock p.m. of that day.” Whether he ever saw the +recommendation for mercy or not, no one could say. + +But Clampitt and Aiken weren’t ready to call it quits yet. At two +o’clock on the morning of July 7th, the two young men persuaded Andrew +Wylie, one of the Justices of the Supreme Court of the District +of Columbia, to issue a writ of habeas corpus on the ground that +prosecution by the Military Commission had deprived Mary Eugenia of her +right to trial by jury. Major General W. S. Hancock, the commander of +the Middle Military District, was ordered “to produce ... the body of +your said petitioner” at ten o’clock the next morning. But Stanton had +an ace up his sleeve. When Hancock, accompanied by Attorney General +James Speed, walked into Judge Wylie’s courtroom, almost two hours +after the time specified in the writ, he did not have Mrs. Surratt +with him. What he did have was a message from the President, declaring +that “I do hereby especially suspend this writ.” Judge Wylie had no +choice--he yielded to the suspension. + +The scaffold had been built in the courtyard of the Old Penitentiary +Building. Just as General Hancock was presenting Johnson’s suspension +order to Judge Wylie, Captain Christian Rath, the officer in charge of +the execution, approved the drop. Four graves had been dug to the left +of the gallows near the prison wall. At the side of each one was a +pine box containing glass bottles in which the name of each defendant +had been placed. Shortly before two o’clock, Mrs. Surratt, despite +Payne’s last minute statement that she “was innocent of the murder of +the President,” was led from her cell. Accompanied by two priests, she +climbed the fifteen steps to the gallow’s platform where she sat in an +armchair while an officer read the sentences aloud. Five minutes later, +with her hands tied behind her back and her face covered by a white +hood, she dropped into eternity. + +On July 15th, the four surviving defendants, who had begun serving +their terms in the Albany Penitentiary, were re-sentenced to “hard +labor in the military prison at Dry Tortugas, Florida.” In 1867, +O’Laughlin died of yellow fever, but Mudd was pardoned in 1868, and +Spangler and Arnold one year later. In 1867, John Harrison Surratt, +whom spectator Walt Whitman described as “very young ... with sharp +eyes,” was tried by a Washington civil court for his part in the +conspiracy. The jury voted eight-to-four for acquittal and the +government decided to call it a day and dropped the charges against +him. By this time, everyone knew that Stanton had suppressed Booth’s +captured diary which contained an entry for April 14th, clearly +indicating that it had not been until that very day that the actor had +decided to kill rather than kidnap the President. Mary Eugenia had +never had even a fighting chance. + + + + +2 + +_Atlanta’s Northern Jew_ + +The State of Georgia + +_versus_ + +Leo M. Frank + + +The southern Negro stands halfway between slavery and freedom. On +one hand, he is his own man, able to own property, to be compensated +for his labor and even, in some areas, to vote. On the other, he +must endure many forms of segregation, perform his community’s less +desirable chores, and suffer whatever slings and arrows his white +neighbors choose to send his way. But occasionally he finds himself +an honest-to-goodness hero. This metamorphosis occurs whenever he +mounts the witness stand to testify against another Negro whom, for one +reason or another, the state wants to put out of the way. In Atlanta, +in 1913, it didn’t seem to make much difference that the victim was a +twenty-nine-year-old northern Jew. + +After he graduated from Cornell, Brooklyn-born Leo M. Frank married +a Georgia girl. With her parents’ help, he was able to buy a small +interest in the National Pencil Factory, a medium-size enterprise +which operated out of a four-story building on South Forsyth Street in +Atlanta. National employed more than one hundred employees, most of +whom were women, and Frank, who was also its production superintendent, +directly supervised their work from his tiny second-floor front office. + +The factory building was a narrow rectangular structure which ran 150 +feet back from South Forsyth Street to a small alley. The entrance +to the plant was through an enclosed hallway on the first floor. +An elevator shaft was located in this hallway near the foot of a +glass-enclosed stairwell. Behind this shaft there was a hatchway which +opened into the basement. Outside of a boiler and some lockers for +Negro employees, the cellar was empty. + +The stairs led up to the building’s second floor where Frank’s small +cubicle was located. His office opened into a large room where most of +the plant’s clerical help worked. At the very rear of the building was +National’s metal room where tips were attached to the ends of completed +pencils. The metal room, which was separated from the rest of the +second floor by a wooden partition, was entered by means of a double +glass door. The actual manufacturing of lead pencils was performed on +the third and fourth floors. + +National’s employees were normally paid at noon on Saturday. However, +Saturday, April 26, 1913, was a holiday--Confederate Memorial Day--and +Frank had met his payroll the day before. But some of the girls who +worked in the metal room had been laid off the preceding Monday because +the plant had run out of pencil tips. Some of them decided to take +advantage of the holiday and pick up the few dollars owed them for +their single day’s work. One girl, fourteen-year-old Mary Phagan, +who lived in an Atlanta suburb, decided to kill two birds with one +stone--she would pick up her pay at the plant and then take in the +parade which was scheduled to start at two p.m. + +Mary ate an early lunch of cabbage and wheat bread and left her house +at 11:45. She boarded a street car which let her off at the corner of +Broad and Hunter Streets, just a block away from the pencil factory. +She arrived at National shortly after noon and went immediately to +Frank’s office where she received a pay envelope containing $1.25. She +asked the superintendent whether a new supply of metal had arrived +and, when he said “No,” she left the office, and he listened to her +footsteps as she went down the stairs to the first floor. Only one +other person was ever to see her alive again. + +Fifteen hours later, Newt Lee, the factory’s night watchman, was making +his rounds through the darkened building. In the cellar, near the back +of the building, he found the body of Mary Phagan. The girl had been +strangled and it appeared that she had probably been raped. Although no +spermatozoa were found on her body or her clothes, the epithelium of +the walls of the vagina was torn and bruised and her underwear, which +was ripped, was spotted with blood. From the condition of her clothes, +it was obvious that whoever had killed the girl had dragged her body +along the cellar floor. There was a deep cut on her head and numerous +bruises on her arms and legs. + +Newt Lee was a Negro which was enough to make him a prime suspect. He +was immediately arrested and thrown into the Fulton County Jail, and it +seemed that the Atlanta police had more than enough to mark the case +solved. But because somebody thought that Frank had appeared unduly +nervous when he was informed of Mary’s death, the police decided to +book him, too. Frank proved anything but an uncooperative prisoner. +He hired private detectives to assist the Atlanta constabulary in its +efforts to find the girl’s murderer, and persuaded his captors to allow +him to spend some time alone with Lee in his cell in order to induce +him to talk. + +But the night watchman stuck to his plea of innocence and was soon +released while his employer was held for the action of the grand jury. +A garrulous prostitute informed the police that Frank had telephoned +her the night before the murder and pleaded for a room. He had told +her that it was a matter of “life and death.” She also swore that, on +the day after Mary’s body was found, he had offered her a large sum of +money to leave town. Although she later repudiated her entire story +and disappeared, the damage was done and Frank, who was referred to +by a local magazine as “this filthy, perverted Jew of New York,” was +indicted on May 24, 1913, for Mary’s murder. + +When the dead girl’s body was found, two notes, scribbled on sheets +of paper ripped from a scratch pad, were discovered on the floor near +her. Written in pidgin English, they claimed that “a long tall negro” +had been making love to Mary and that “i write while play with me.” +According to the author “he said he wood love me, laid down, play like +the night witch did it, but that long tall negro did buy his self.” + +The police were convinced that Frank had written the notes in an +attempt to throw the blame on Lee. This theory was somewhat shaken +when, on the Thursday after the murder, a Negro porter named Jim Conley +was discovered scrubbing a bloodstained shirt in the factory’s basement +sink. Conley, who was later described as a “low squatty Negro with a +gingercake complexion,” was picked up and lodged in the county lockup +where he languished for almost three weeks. However, when he finally +convinced the police that he could not write, he was given back his +shirt and released. + +Then Harry Scott, a Pinkerton operative engaged by the pencil factory +to solve the crime, discovered that Conley was much more literate than +he had let on. Now thoroughly frightened, the porter was returned +to jail where he poured out a tale of sex and murder that was sure +to find ready listeners. He said that on April 26th he had stood +watch for Frank, who habitually used the factory as seraglio, when +the superintendent had assaulted and killed Mary Phagan. Then, after +helping his employer hide the body in the basement, he had written +the two notes which had been found near her corpse. In all, he told +the investigators from the Solicitor General’s office four different +versions of this story. As each one was investigated and found +untenable, Conley assured his avid audience that “Sure, I lied but I +swear to God I am telling the truth this time.” The following July, he +was to tell a fifth story on the truth of which a man’s life was to +depend. + +Although Frank testified before the coroner’s jury and claimed that he +neither knew Mary Phagan nor had killed her, he was swiftly indicted +for her murder and his trial began on July 28, 1913, in the Fulton +County Courthouse before Superior Court Judge L. S. Roan and an +all-male jury. By the time the trial got under way, all Atlanta had +prejudged the “Jew of New York” and the newspapers were off and running +on an orgy of sensationalism that was not to die down until Leo Frank +had become the symbol of the Gate City’s greatest shame. + +Conley was, by all odds, the prosecution’s most important witness. +Ordinarily, the testimony of a Negro who “always seemed to be +kind of nervous or half drunk” wouldn’t have carried much weight +in a Georgia court. But what Arthur Garfield Hays referred to as +“counter-prejudices” were at work. To the rednecks, a Jew from Brooklyn +was even worse than a “no-account nigger” and Conley’s audience was +sublimely ready to believe every word he uttered. + +He told a fantastic story. Frank had come to him early on the morning +of April 26th and said: “I want you to watch for me like you have +been doing the rest of the Saturdays.” According to Conley, for more +than two years he had been picking up a little extra change by acting +as Frank’s lookout while the superintendent was enjoying himself with +various women in his office. “I always stayed on the first floor ... +and watch for Mr. Frank, while he and a young lady would be upon the +second floor chatting.” + +On this particular Saturday, the witness had been given very precise +instructions as to the afternoon’s activities. “Now, there will be a +young lady here after a while,” Frank had told him, “and me and her +are going to chat a little.” When the girl arrived, the superintendent +would “stomp like I did before” and Conley was to shut the door that +led to second floor. “Now, when I whistle, I will be through, so you +can go and unlock the door and come upstairs to my office like you were +going to borrow some money from me and that will give the young lady +time to get out.” + +Shortly after noon, he swore, he had seen Mary Phagan climbing up +the steps to the superintendent’s office. He had heard her footsteps +approaching Frank’s cubicle and then the sound of two people walking +toward the metal room. A few minutes later, there was a scream, +followed by the sound of someone running from the metal room to +the front of the building. At that moment, another young lady had +entered the building, walked up the stairway to the second floor and +immediately come down and left the factory. How she had opened the +locked door was anybody’s guess. + +Apparently, Conley was used to an occasional scream or two emanating +from the second floor on Saturday afternoons because he promptly went +to sleep. “Next thing I knew, Mr. Frank was up over my head stomping, +and then I went and locked the door ... and the next thing I heard Mr. +Frank whistling. When I heard him whistle, I went and unlocked the door +just like he said and went on up the steps. Mr. Frank was standing up +there at the top of the steps, shivering and trembling and rubbing his +hands like this. He had a little rope in his hand, a long, wide, piece +of cord. His eyes were wide and they looked right funny. He looked +funny out of his eyes. His face was red.” + +After Frank had composed himself, he told the porter that there had +been a little trouble upstairs. “I wanted to be with the little girl,” +he had said, “and she refused me, and I struck her, and I guess I +struck her too hard, and she fell and hit her head against something, +and I don’t know how bad she got hurt. Of course, you know that I ain’t +built like other men.” + +The two men had then gone upstairs to the metal room where Conley had +picked up the dead girl’s body and carried it to the elevator. He had +taken it to the basement where it was placed on a trash heap near the +rear of the building. Then, Frank had ordered him to write the two +notes which were eventually found near the corpse. The porter insisted +that the defendant had dictated the notes to him and had promised him +$200.00 for his help in covering up the crime. Frank’s bank balance on +the day before this grandiose offer was exactly sixteen dollars. + +After Conley had graphically described the murder itself, Hugh M. +Dorsey, the Solicitor General of Georgia, made him recount what he had +witnessed on other Saturdays when he claimed Frank was entertaining +some of the easier ladies of Atlanta in his upstairs lovenest. He +remembered one girl in particular, a Daisy Hopkins, who had been a +steady visitor to the second-floor playroom. Just before Thanksgiving +of 1912, he had inadvertently wandered into the superintendent’s office +where he saw Daisy “sitting down in a chair and she had her clothes +up to here, and he was down on his knees and she had her hands on Mr. +Frank and I found them in that position.” When the couple left the +office, they found the inquisitive porter waiting in the anteroom. + + Q. What was said when they saw you? + + A. When Mr. Frank came out of the office, Mr. Frank was hollering, + “Yes, that is right, that is right;” and he said, “That is all right, + it will be easy to fix it that way.” + +According to Conley, the defendant was equally at home in other parts +of the factory. “I have seen him another time,” he said, “There in the +packing room with a young lady lying on the table.” + + Q. How was the woman on the table? + + A. Well, she was on the edge of the table when I saw her. + +Before he left the stand, the witness, who proudly described himself, +in Frank’s words, as “the best nigger I ever saw,” had titillated +the spectators with a running account of two years as a peeping Tom +in the pencil factory. What went on during those languorous Saturday +afternoons was enough to shock a satyr. “Why,” Conley said, about +Frank, “I have seen him in a position I haven’t seen any other man that +has got children.” + +But Frank wasn’t the only one whom Conley had observed making hay in +what must have been the most sybaritic factory in Georgia--or anywhere +else, for that matter. Once, Frank and his paramour of the moment had +been joined by a Mr. Dalton and another lady. They had told the porter +to “go down and see nobody don’t come up and you will have a chance to +make some money.” Dalton, who was to return to the plant on many future +occasions, usually took his playmates down to the basement. From his +first-floor observation post, Conley was able to watch both the stairs +leading to Frank’s office and the hatchway to the cellar. He evidently +proved to be sharp of eye for, until the death of Mary Phagan, no one +in Atlanta knew that more was being made at National than pencils. +For his services, he received from twenty-five cents to one dollar a +sortie. Although Dalton later testified that he had found the factory a +convenient place in which to make love, he denied that he had ever seen +Frank similarly occupied. + +According to Frank, Mary Phagan had arrived in his office at 12:12 +p.m. that Saturday. Another metal room worker, Monteen Stover, who had +also gone to the factory to pick up her pay, said that she had been +in the plant from 12:05 to 12:10. Since Conley had sworn that Miss +Stover had entered the building after the dead girl, then Mary must +have entered the plant before 12:05. However, Frank’s stenographer had +taken the last of his dictation at 12:02, at which time she went home. +Thus, it was clear that the only time in which the superintendent could +have been alone with Mary was between 12:02 and 12:05. Lemmie Quinn, +the factory foreman, had seen him in his office at 12:20 when, Quinn +testified, he had exhibited no sign of nervousness. + +According to its schedule, the English Avenue car on which Mary had +taken her last ride was due to arrive at the corner of Broad and +Marietta Streets at 12:07½ p.m. Mathas, its motorman, was certain that +“we were on schedule.” He also believed that “we got to Broad and +Hunter about 12:10.” It was at the latter crossing that Mary had left +the street car and gone directly to the factory which was only a block +away. + +Hollis, the conductor, was just as definite. “We ran on schedule that +day,” he testified. “We got to Broad and Marietta 7½ minutes after 12, +schedule time ... it takes 2½ minutes to run from Broad and Marietta +to Broad and Hunter. I have timed the car again and again since then.” +Occasionally, a car would run ahead of schedule but “hardly ever.” He +insisted that it was “against the rules of the company to get to the +city ahead of time.” + +The division superintendent backed up the motorman and the conductor +as far as the schedules went. However, he remembered that the men +frequently came in ahead of time. Just a week before the trial, he had +suspended a motorman for arriving a few minutes before his scheduled +time. Sometimes, one car would “cut off” another which was ahead of +it and come in much too early. On one occasion, he had seen one car +cut off another which was scheduled to arrive at Broad and Marietta at +12:05. + +In rebuttal, the prosecution put one of the line’s inspectors on the +stand. He had never heard of a 12:07½ time for reaching Broad and +Marietta; as he remembered it, the schedule called for a 12:07 arrival +at that crossing. On one occasion, he had seen Mathas cut off the car +in front of him. The men liked to come in ahead of schedule “on relief +time, for supper and dinner.” In fact, the crew on Mary’s car had been +relieved for lunch just after it arrived in the center of the city +after dropping her off at Broad and Hunter. + +At 12:50 that day, Frank had announced to several people in the factory +that he was going home for lunch. Three employees had seen him leave +the building ten minutes later and a dozen witnesses passed him as he +walked home where he arrived at 1:20. Yet Conley had said that it had +been 12:56 when he had seen Frank at the head of the stairs with a +piece of rope in his hand. He had also testified that the two notes had +been written after one o’clock and that Frank was still in the building +when the porter left at 1:30. + +Conley had stated that Mary’s body had been taken to the basement in +the electric elevator that serviced the building. But two factory +employees who had been working on the fourth floor that afternoon had +not heard the whirring noise that always accompanied its operation. +More important, a pile of trash that Conley himself had observed at the +bottom of the elevator shaft on Saturday morning was not crushed by the +descending car. + +The porter had also insisted that Mary had been killed in the metal +room. However, no blood was found anywhere on the second floor or in +the elevator cab. But in the basement, Atlanta police had found blood +scattered on the floor, the walls and the inner door that led to the +alley in back of the plant. Incidentally, the hasp of the outer door +had been pried off with an iron bar. + +Frank’s attorneys were convinced that Conley, who was on a holiday +toot, had attacked Mary and killed her. It was their opinion that the +cinders which were found all over her clothes indicated that Mary +had put up quite a battle for her life in the cellar and that it had +taken the drunken porter some time to kill her. After her death, he +had suddenly come to his senses and decided to write notes putting +the blame on a “long, sleam tall negro.” Since he was a stocky, +light-colored Negro, this description would, he had thought, prevent +suspicion from falling on him. His last precautionary effort had been +to wash his bloodstained shirt in the basement sink on the Thursday +after the murder. + +In addition to trying to prove that Frank was a sexual deviate, the +prosecution was determined to show that he had had his eyes on Mary for +a long time. W. E. Turner, a boy who worked as a messenger at National, +said that “I saw Leo Frank talking to Mary Phagan on the second floor +about the middle of March.... There was nobody else in the room then. +She was going to work when he stopped her. She told him she had to go +to work. He told her that he was the superintendent of the factory +and that he wanted to talk to her ... she backed off, and he went on +towards her, talking to her. The last thing I heard him say was he +wanted to talk to her.” At this point, Turner had left the floor and +had seen and heard nothing else. + +Dewie Howell, a girl who had once labored in the metal room with +Mary, had been found by the prosecution in Cincinnati’s Home of the +Good Shepherd. Miss Howell had worked at the pencil factory during +February and March of 1913. She had “seen Mr. Frank hold his hand on +Mary’s shoulder. He would stand pretty close to Mary when he talked to +her. He would lean over in her face.” Irene Jackson, another National +employee, had seen him open the door of the girls’ dressing room one +afternoon and stare inside. + +After Frank had been arrested, four policemen came to the jail with +Conley in tow and insisted on seeing the defendant. Frank had refused +to talk to them because his lawyer wasn’t to be present at the +conference. Dorsey took great pleasure in pointing out that it had +been one of the private investigators hired by the factory at Frank’s +request who had suggested that Conley be taken to the superintendent’s +cell in an effort to shake the truth out of the porter. He was later +to tell the jury that Frank had not been so coy at the time he had +requested permission to visit Newt Lee’s cell when the night watchman +was still under suspicion. + +Since the time of Mary’s visit to the factory was crucial to both the +state’s and the defendant’s cases, each side tried to show by the +condition of the food in her stomach how many minutes had elapsed +between her 11:30 lunch and the time she died. Dr. H. F. Harris, +Dorsey’s medical expert, was the secretary of the Georgia Board of +Health while Dr. W. F. Westmoreland, who testified for the defense, +was its former president. Harris thought that the girl had eaten her +cabbage and wheat bread “perhaps three quarters of an hour or half an +hour or forty minutes, or something like that, before death occurred.” +Westmoreland estimated that death had occurred nearer to one o’clock. +Both physicians had previously been involved in an altercation provoked +by charges of professional misconduct being filed against Harris by +Westmoreland. The former was subsequently cleared and his accuser +forced to resign as president of the Board of Health. There was bad +blood all around and the two physicians effectively neutralized each +other. + +When the defense took over, it tried to dispel the aura of sexual +degeneracy that the Solicitor General had so painstakingly developed. +A reward of $5000.00, offered by William J. Burns to anyone who could +turn up a single immoral act in Frank’s past life, went begging. +Even the Atlanta police, who could hardly be classed as impartial +observers, were unable to locate any evidence in Brooklyn or Ithaca +that in any way implicated the defendant. So clean was his record +that Chief Beavers did an about-face and insisted that the police had +never claimed that he was a degenerate. But if Atlanta officialdom +had changed its mind, the man in the street still saw Frank as the +anti-Christ. + +Dorsey, who was later to refer to the sodomy trial of Oscar Wilde in +his summation, had also introduced testimony that Mrs. Frank had never +visited her husband in jail. What could be clearer evidence that he was +guilty of murdering what Tom Watson’s _The Jeffersonian_ referred to as +“our little girl--ours by the Eternal God!” To rebut these inferences, +the defense put witness after witness on the stand to testify to +Frank’s good character. But Judge Roan consistently permitted Dorsey to +undermine the effect of their testimony. The cross-examination of Mary +Pirk, a National worker, was typical. + + Q. You never heard of a single thing immoral during the five years? + + A. Yes, sir, that’s true. + + Q. You never knew of his being guilty of a thing that was immoral + during the five years--is that true? + + A. Yes, sir. + + Q. You never heard a single soul during that time discuss it? + + A. No, sir. + + Q. You never heard of his going in the dressing room there of the + girls? + + A. No, sir. + + Q. You never heard of his slapping them as he would go by? + + A. No, sir. + +The trial was destined to last for a month. As it wore on, popular +feeling against Frank grew by leaps and bounds. In its last week, the +Solicitor General was carried down the steps of the courthouse at the +end of each day on the shoulders of a surging crowd that shouted, +“Hurrah for Dorsey.” On August 23rd, when one of Frank’s character +witnesses was on the stand, the spectators began to laugh and it +took all of Judge Roan’s courtroom savvy to quiet them down. An hour +later, a claque in the rear of the room began to applaud exchanges +of causticities between Dorsey and various defense lawyers. Again, +Judge Roan stepped into the breech and restored some sort of order. +But apparently he was at the end of his resources because he promptly +called in the police and the Fifth Georgia Regiment to keep the +restive audience under wraps. + +On August 25, 1913, the trial’s last day, the courthouse was ringed by +thousands of people who shouted such pleasantries as “Hang the Jew or +we will hang you!” into the Pryor Avenue windows of the first-floor +courtroom. As the _Atlanta Constitution_ described it, “A veritable +honeycomb of humanity spread over the section ... Men and women clung +to the walls of buildings and stood in doorways. Windows were crowded +with women and girls and children. It was as though a street audience +had gathered to watch an eventful procession.” + +The situation grew so bad that Roan cleared the courtroom when the +jury announced that it had decided on a verdict. The cheering from the +outside reached such a crescendo that it was almost impossible to hear +the foreman inform the judge that he and his colleagues had found Leo +Frank guilty of murder in the first degree. When a court bailiff leaned +out of a window and shouted the word “guilty,” a reporter noted that +“a combined shout ... rose to the sky. Pandemonium reigned. Hats went +into the air. Women wept and shouted by turns ... Few will live to see +another such demonstration.” + +Judge Roan, who had previously said that “if Christ and his angels +came down here and showed this jury Frank was innocent, it would bring +him in guilty,” denied his attorneys’ motion for a new trial despite +the fact that he publicly acknowledged that he did not know “this +morning whether Leo Frank is innocent or guilty.” The next day, Frank +was sentenced to be hanged in the courtyard of the “common jail of +Fulton County.” Before Roan went through the dreary formalities that +marked the first step in taking a man’s life, he afforded the slender, +dark-haired defendant an opportunity to make a last statement. Frank, +in a voice that was all but drowned out by the clamor outside the +courtroom, swore that “I am innocent of little Mary Phagan’s death, and +have no knowledge of how it occurred....” + +On February 17, 1914, the Supreme Court of Georgia affirmed the death +sentence. Ten months later, the United States Supreme Court refused +to intervene although Mr. Justice Holmes was moved to state that “I +very seriously doubt if the petitioner has had due process of law +... because of the trial taking place in the presence of a hostile +demonstration and seemingly dangerous crowd.” It looked very much as if +Leo Frank would never live to see his thirty-first year. + +But on June 30, 1915, Governor John H. Slaton, with rare courage, +sacrificed his political career and commuted Frank’s sentence to life +imprisonment. Unfortunately, his _beau geste_ was an empty one because, +several months later, a mob broke into the prison hospital where Frank +was recovering from an attack by a fellow prisoner who, in a frenzy of +self-righteousness, had cut his throat, rushed him back to Atlanta, and +hanged him from a tree that grew in front of Mary Phagan’s house. After +the jury’s verdict, the defendant had asked a reporter, “Can it be that +the law, and our system of its administration, is so inexorable that +truth and innocence may never be heard after once the die is cast? Is +the door forever closed and the way barred?” His swinging body was the +answer. + + + + +3 + +_In Union There is Death_ + +The State of California + +_versus_ + +Thomas J. Mooney + + +Saturday, July 22, 1916, was a day that San Francisco would long +remember. Its Chamber of Commerce, anticipating early American entrance +into World War I, had organized a Preparedness Day parade which was +scheduled to kick off at 1:30 p.m. The two-mile line of march extended +from the Ferry end of Market Street to the Civic Center, and every +organization in the Bay area that could muster a column of fours was to +be represented. Market Street had been closed to all traffic shortly +before the parade started and an enormous crowd lined both sides of the +route. The various units had assembled in the Embarcadero at noon and +marched westward to the music of more bands than San Francisco had ever +heard at one time. At 2:06 p.m., as the Spanish-American War veterans +stepped smartly out of Steuart Street to join the parade, an enormous +explosion shattered the air. When the smoke cleared, the police found +eight mutilated corpses lying in the street. + +It was soon clear that a bomb had gone off on the westerly sidewalk +of Steuart Street, some seventeen feet in from Market Street. Captain +Duncan Matheson of the San Francisco Police, who was on duty nearby, +ordered Lieutenant Stephen Bunner to take care of the wounded while he +kept the parade moving. As soon as the dead and injured had been taken +away, Bunner ordered the sidewalks washed with fire hoses. He later +stated that he “was satisfied that all the evidence had been collected +by the detectives and the persons around before I ordered the sidewalks +washed.” + +About an hour and a half later, District Attorney Charles M. Fickert, +accompanied by a San Francisco banker named Frederick H. Colburn, +arrived at the scene. Colburn found some “nickel flattened bullets and +a ragged piece of pipe, one or two .32 cartridge shells, rim fire,” +on the sidewalk. A remarkably curious man, he then asked for a sledge +hammer and “broke a strip three or four inches wide around the little +hole in the sidewalk where the concrete was shattered.” Some more +cartridges and several jagged pieces of iron were found in the hole. +Colburn then pushed in some loosened bricks in the adjoining wall and +discovered a few more scraps of metal lodged behind them. + +After clearing Market Street for the 42nd Division which had come over +from Oakland to join the parade, Captain Matheson returned to Steuart +Street, only to find that Bunner had washed the sidewalk clean. The +police officer walked over the explosion area and found a bloody strip +of iron, a narrow piece of metal with several nails in it, fifteen +exploded .32-caliber shells, three .22-caliber bullets, and some fibre +strands which he thought looked like “imitation leather.” He then +returned to Market Street where he “stayed until all the parade had +cleared about 4:30, and then walked back to the scene of the explosion.” + +In his absence, Fickert and Colburn had arrived and the latter had +enlarged the break in the sidewalk. Matheson was extremely angry that +no efforts had been made to guard the explosion area and he ordered +Steuart Street roped off. He also set up a police detail to keep the +souvenir hunters from removing any evidence that had not yet been +picked over. The detectives who had swarmed over the area minutes after +the explosion had taken no measurements of the size of the hole in the +sidewalk and had made no record of the positions of the victims’ bodies. + +That evening, Martin Swanson, a former Pinkerton operative who was +employed by the Public Utilities Protective Bureau, strolled into +Fickert’s office and nonchalantly remarked that he knew who was +responsible for the tragedy. He named two coast labor leaders--Warren +K. Billings and Thomas J. Mooney--as the ones who had planted the bomb. +They had been assisted, he said, by Israel Weinberg, a cab driver, +Edward D. Nolan, the President-elect of Machinists’ Lodge 68, and +Mooney’s wife, Rena. Swanson was evidently quite persuasive because +Fickert immediately put him on the payroll, and picked up Billings, +Weinberg and Nolan four days later. The Mooneys were on vacation in +Montesano, Washington, when they read that they were being sought as +suspects in the bomb case. After Mooney had wired Chief of Police White +that “this attempt to incriminate me in connection with bomb outrage is +one of the most dastardly pieces of work ever attempted,” the couple +took the first train back to San Francisco. They were arrested on July +27th, by policemen who boarded their coach at Guerneyville. + +This wasn’t the first time that Swanson had used Mooney’s name in vain. +Three years earlier, when the linemen of the Pacific Gas & Electric +Company in neighboring Contra Costa County had gone on strike, the +detective had been hired to find out who was dynamiting the utility’s +property. He had accused Mooney, who was leading the strike, of +possessing explosives, and the union organizer was tried three times +before he was eventually acquitted. Swanson had been more successful +with Billings who was sentenced to two years at Folsom Penitentiary for +carrying dynamite. + +On June 10, 1916, Mooney, as a representative of the Amalgamated +Association of Street and Electric Railway Employees of America, called +an organization meeting of the carmen of the United Railroads, San +Francisco’s trolley lines, at Woodsman’s Hall. Early the next morning, +three of the carrier’s transmission towers near San Bruno were slightly +damaged by dynamite. According to Weinberg and Billings, Swanson +went all out to pin this bombing on Mooney. On July 17th, he hailed +Weinberg’s taxi and offered the cabbie $5000.00 to swear that he had +driven Mooney to San Bruno after the meeting at Woodsman’s Hall. When +he repeated the offer two days later, Weinberg told him that he had no +information to sell. + +On July 18th, Swanson met Billings at the office of the Pacific Gas +& Electric Company, where the latter had gone to pay a bill. The +detective promised him a machinist’s job with the utility as well as +five thousand dollars if he would help connect Mooney with the San +Bruno explosion. Billings was as uncooperative as Weinberg had been, +and Swanson soon gave him up as a bad job. He later admitted that +he had spoken to both men about Mooney’s part in the bombing of the +transmission towers, but denied that he had offered any money to either +one. + +When Billings, Weinberg, Nolan and the Mooneys were arrested, they were +held incommunicado until the Grand Jury met on the evening of August +1. Meanwhile, San Francisco was staging mass meetings at which speaker +after speaker urged that all radicals, anarchists and liberals be run +out of town. The Law and Order Committee of the Chamber of Commerce +raised more than $400,000 for the avowed purpose of ridding the city +of its “anarchistic” elements. All of the newspapers embarked on an +orgy of speculation, openly inspired by the District Attorney’s office, +in which no effort was made to separate fact from fancy. As far as +the _Examiner_, the _Call_, the _Chronicle_ and the _Bulletin_ were +concerned, Fickert had an open-and-shut case against all the suspects, +and it made little difference what they printed under their banner +headlines. + +The first witness before the Grand Jury was Henry Kneese, the City +Marshal of South San Francisco, who said that he had found a suitcase +containing forty sticks of dynamite on the state highway leading to San +Bruno on June 10th. Apparently, Fickert wasn’t above some titillating +irrelevancies to soften up a jury. Kneese was followed by Dr. David E. +Stafford, the physician who had performed the autopsies on Hetta Knapp +and the seven other persons killed in the July 22nd blast. Dr. Stafford +stated that he had removed small pieces of .22- and .32-caliber shells +and particles of iron pipe from their bodies. After Will George M. +Hon, the foreman of the Cadillac Garage, testified that, when Billings +was discharged from his mechanic’s job in June, he had owned a brown +suitcase, Captain Matheson and Lieutenant Bunner described the scene at +Steuart and Market Streets following the blast + +Earl R. Moore, a policeman, was the first witness to place any of the +defendants on Market Street before the explosion. He had been ordered +to clear the parade route of all traffic. Shortly after one p.m., he +had noticed an old Ford jitney with a broken horn and a torn rear +cushion parked in front of 721 Market Street, a two-story building +directly across the street from the offices of the Preparedness Day +Parade Committee. While he was standing near the automobile, waiting +for its owner to show up, he had observed a man loitering on the +sidewalk a few feet away. When Moore asked him if he knew who owned the +vehicle, the man had answered, “Oh, he’ll be here in a minute.” The +policeman “went on down toward 4th Street and I came back in about ten +minutes again and the machine was gone.” Four days later, he identified +Billings as the man who had spoken to him that afternoon. + +Herbert C. Wade, the principal of a Hawaiian school, had been in no +mood to watch the Preparedness Day Parade. Bothered by a bad toothache, +he had been heading for his dentist’s office in 721 Market Street. As +he walked toward the entrance to the building, Billings passed him +“and went up the steps into the dental office. He had a suitcase or +something of the sort with him.” A few minutes later, the witness saw a +man and woman but he was unable to say that they had been Mr. and Mrs. +Mooney. “It was somewhere around one o’clock when I saw Billings,” he +told the jurors, “ten minutes to one or ten minutes after.” + +The dentist’s receptionist, Estelle G. Smith, had been waiting for the +parade to start when Billings entered the office. He had a suitcase in +his hand and told her that he was a motion picture cameraman for the +_San Francisco Chronicle_. When he asked for permission to photograph +the parade from the roof, she told him that he would have to wait until +the dentist returned from lunch. Because she thought he was “sick from +the heat,” she had decided to let him go up to the roof at once. She +had asked a friend, Louis Rominger to “Please show this man to the +roof” while she returned to the window to watch the parade, which had +just started. When Mayor Rolph passed by in the street below, she had +waved a towel at him and shouted, “Hello, Mayor Rolph!” According to +photographs taken by the International Film Company, the Mayor had +passed 721 Market Street at 1:50 P.M. + +At “half after one or so,” a tall “very repulsive looking man, long +mustache,” who looked like “a Russian Jew,” burst into the dental +office and attempted to push by Miss Smith who was standing in front of +the stairway. When she threatened to call the police, a woman ran up +the first-floor steps and persuaded the man to leave the building. Five +minutes later, a “very agitated” Billings came down from the roof and, +after thanking the receptionist for her kindness, hurriedly departed. +She was sure that the woman had been Rena Mooney. + +Alice Kidwell, Miss Smith’s mother, had been seated at the window in +the dentist’s reception room when she saw the Mooneys talking to two +men on the sidewalk outside the building. Mrs. Mooney left the group +for a moment and, when she returned, “I saw her with her hand waving +it up this way, beckoning to someone on the roof.” A few minutes +later, the young man who had been taking pictures on the roof left the +building. Mrs. Kidwell remembered saying, “Good gracious, he couldn’t +have taken very many because he was up there just a short time.” She +last saw the Mooneys walking west on Market Street. + +A tramp waiter by the name of John McDonald was the only witness before +the Grand Jury who testified to seeing both Mooney and Billings at +Steuart and Market Streets. He had been standing on the east side of +Steuart, some fifteen feet south of Market, when he noticed a “young +fellow coming down carrying a grip in his hand.” Because the man +appeared so nervous, McDonald kept his eye on him as he walked down +Steuart Street. Just before he reached the corner, he “transferred the +suitcase over to his left hand and set it down near the wall.” Then, +the young man walked to a saloon at the comer of Steuart and Market +where he was joined by another man who had been inside. He identified +the youth who had been carrying the suitcase as Billings and the man +who had emerged from the bar as Mooney. + +McDonald watched the two men talk together for a few minutes and then +he saw Mooney take out a pocket watch and check it with the clock in +the Ferry Building tower. Seconds later, Billings “took a cut right +through the parade toward the other side of Market Street as though he +were going back to the Ferry Building.” After waiting a few minutes, +Mooney also crossed Market Street “as though he was going across to +Drum Street,” one block west of the Embarcadero. By this time, the +witness had lost interest in both men and decided to walk up Market +Street. He had reached the Alameda Cafe, some 150 feet from where he +had been standing, when the explosion occurred. + +Mrs. Mooney, who was known professionally as Rena Herman, had been +teaching music in a fifth-floor studio in the Eilers Building at 975 +Market Street for almost eight years. On the day of the parade, she had +watched the spectacle from the roof of her building with her husband +and two relatives. When they arrived on the roof, “the parade hadn’t +started then. Everybody was yelling it was starting. We hurried to get +up there. We didn’t leave the roof until after the parade passed.” +Neither she nor Tom had been at 721 Market Street on July 22nd; in +fact, they hadn’t left the Eilers Building until five o’clock that +evening. + +Although Mooney, Billings and Nolan refused to testify because they had +not been permitted to talk to their lawyers, Weinberg stated that “I am +willing to answer every question you wish to ask me.” He denied that +his taxi had been parked in front of 721 Market Street on the afternoon +of the explosion or that he had been in the vicinity of Steuart and +Market around two o’clock. Although he swore that his jitney was in +perfect working condition, he admitted that “the machine in the back is +torn, the thread.” At one p.m. on the 22nd, he was driving a passenger +to Fillmore and Sutter. Then he had gone to the office of the gas +company and paid his bill which was two months overdue. Because the +parade was disrupting all traffic, he had decided to call it a day and +go home. “I went to the butcher shop,” he said, “and got some meat and +went home about three or a little after three.” He had remained home +until “five or a little after.” + +When Mooney was arrested on the San Francisco train, the police who +searched him found the key to Nolan’s basement apartment at 82 Angelica +Street in his pocket. Officer Peter J. Hughes, who had been a member +of the squad which ransacked the apartment, testified that he had +found plaster of Paris, a box containing saltpetre and another bag +that contained what “looked like black powder.” A motorcycle belonging +to Mooney, twenty pounds of epsom salts, a bag of flour, and a small +quantity of flashlight powder were also uncovered. According to Hughes, +“We asked him [Nolan] several times before we went down in the basement +if there was anything in the basement. He said ‘no.’” + +On August 2nd, the Grand Jury returned a true bill, charging all five +suspects with the murders of the eight people who had been killed in +the explosion. Fickert, whose first act after having been elected +District Attorney in 1909 had been to obtain the dismissal of graft +indictments against officers of the United Railroads, looked forward +to the Mooney trial with a relish that was undisguisable. However, he +decided that it might be more expedient to try second offender Billings +first and the latter’s trial began on September 11, 1916, in the +Superior Court of San Francisco, before Judge Frank H. Dunne. + +The prosecution called most of the witnesses who had testified before +the Grand Jury. McDonald repeated his story of seeing Billings at +Steuart and Market just before the explosion. “As near as I can +remember it must have been eight or ten minutes to two when I first +discovered him.” After describing the meeting of Billings and Mooney +in front of the saloon, the witness said that he “went down to the +restaurant on the Embarcadero, 34 was the number, and got a glass of +buttermilk.” It was while he was there and not, as he had told the +Grand Jury, in front of the Alameda Cafe, that the explosion took +place. Also, he now said that he had lost both men in the crowd after +their meeting at the corner of Market and Steuart. + +Fickert had found a new witness to support McDonald’s story. John +M. Crowley was an automobile mechanic who worked on the corner of +Steuart and Mission. He was positive that he had seen Billings at 1:55, +“standing about three feet from where I was.” He saw him again at the +same place immediately after the explosion and he remembered that the +defendant had refused to take off his hat when the band was playing +“The Colors.” But he was certain that Billings had not been carrying +anything in his hands at either time. + +Estelle Smith and Herbert Wade swore that they had seen Billings at 721 +Market Street at approximately one p.m. on July 22nd. Peter Vidovich, +an eccentric patient who had decided not to wait for the tardy dentist, +was just descending the steps to the street when he saw Billings +struggling up the narrow stairway with a suitcase. “I backed up and +stood behind the banister on the top of the stairway and give him a +chance to come up.” The suitcase was, he remembered, “kind of pale +color like, rather deeper that the ordinary suitcase ... pale color of +chocolate or wine color. It was a kind of funny suitcase, it was kind +of different.” + +Mellie Edeau and her daughter, Sadie, had come from Oakland to see the +parade. Although neither woman had been called before the Grand Jury, +they both swore that they had seen Billings on the roof of 721 Market +Street. Shortly before one p.m., they had been standing in front of the +Kamm Building which was next door to 721. Sadie Edeau testified that +“when I first saw Billings he was on the roof of 721 Market, leaning +over the edge of the building. He had a suitcase in his hand.” Her +mother said she had noticed him “on top of the roof ... with a suitcase +and he was talking to someone on the street below him.” + +According to four employees of Uhl Brothers, there had been a cameraman +with a suitcase on the roof of 721 Market Street on Parade Day. +Alphonse De Caccia had seen a young man with “a kodak, a kodak grip--a +black grip about two feet long and a foot wide” sitting in a corner. +This man, he said, had been there when DeCaccia left “about 4:15.” +Tracy F. Barrett had observed a “man sitting in the west corner [with +a] camera very similar to a newspaper reporter’s camera,” while William +B. Crump was sure that this man was still there at “about ten minutes +after two” when the witness left the roof. Henry Pincus had seen a man +“sitting on the firewall” when he arrived on the roof just as Crump was +leaving. + +On the day of the blast, Billings had left his house at 1:30 p.m. As +he headed for Market and Kearney, he had noticed “a large battleship +gray Hudson automobile” on Union Square Avenue. He ended up at Market +and Sixth where he “bought an extra with an account of the explosion.” +Then he had helped a friend of his who was running a jitney bus between +the Ferry and uptown. At no time during the day had he been “at Steuart +and Market or 721 Market. I didn’t see Mrs. Kidwell, Estelle Smith, or +Rominger, and I had no suitcase.” + +On September 23rd, the young machinist was convicted of murder in the +first degree, but the jury fixed his punishment at life imprisonment. +Now, with Billings on his way back to Folsom, Fickert could concentrate +on the man whom he had once described as “a direct action anarchist.” +On January 3, 1917, Mooney’s trial began before Judge Franklin A. +Griffin and twelve Bay area citizens. Fickert, who had let one of his +assistants handle the Billings prosecution, had had enough of the +sidelines and showed up with Edward A. Cunha and James M. Brennan, two +stalwarts from his office. Mooney was defended by W. Bourke Cockran, +Maxwell McNutt and John Lawlor. It took two weeks to select a jury +from the 177 talesman who were called and sworn and it was not until +January 18th that Ed Cunha was able to begin the state’s campaign to +convince Foreman William V. MacNevin and his eleven San Francisco +County colleagues that the bombing had been the opening gambit in a +Wobbly-inspired campaign to overthrow the State of California. + +After six physicians had testified to the wounds and causes of +death, Fickert called a whole battery of witnesses who described the +cartridges, pieces of metal, ball-bearings and bits of imitation +leather that were scattered all over the area after the explosion. Then +Frederick H. Colburn, Captain Matheson and Lieutenant Bunner were put +through their paces as to what they had seen and done after the blast. +With these preliminaries behind him, Fickert finally got around to his +star witness, talkative John McDonald, who had already told the Grand +Jury and the Billings panel that he had seen Mooney and Billings at the +corner of Market and Steuart Streets just before the bomb went off. + +McDonald had been found wandering around the Hall of Justice two days +after the explosion, claiming that he had seen the men who planted the +lethal suitcase. Prior to his sudden prominence, he had been a waiter +at a number of cheap San Francisco restaurants. Just a week before +the parade, he had been released from the hospital where he had spent +several months recuperating from a serious stomach operation. The +doctors had told him that he would not be able to work for some time +and he had just about run through his meager savings when he walked +into Fickert’s office with his story. By July 24th, rewards totalling +more than $14,000.00 had been reported by the _Chronicle_ “for the +arrest and conviction of the criminals who perpetrated the bomb outrage +on Saturday.” + +It had been “about 1:40” when the witness arrived at the corner of +Steuart and Market. He had gone to Steuart Street “because I thought +there would not be such a crowd there.” After watching the parade for a +few minutes, he had “moved up ten or fifteen feet on Steuart.” When he +first saw Billings, the machinist was coming down Steuart Street from +the direction of Mission Street. He had had a suitcase in his hand. + + Q. Would you describe more in detail to the jury his actions when you + saw him coming walking along Steuart Street with a suitcase? + + A. Well, he was carrying the suitcase, and his head was working + on a pivot, and he looked all excited as if he was worrying about + something. That is what called my attention to him first. + + Q. You at that time then noticed the cellar doors, the iron doors + there? + + A. Yes. + + Q. Did he put the suitcase down before he got to the iron doors or + afterwards? + + A. No, before he got to the iron doors. + + Q. He put it against the wall? + + A. Let it down by the side of the wall. + +Then he had watched Billings walk to the saloon at the corner of +Steuart and Market where, just as he pushed the swinging door open, +“right on the second, that man there, Mooney, he came out of the +saloon.” As the two men were talking, Mooney kept checking his watch +with the clock on the Ferry Building on the Embarcadero Plaza. When the +brief conversation ended, Billings “started out in the crowd and I lost +sight of him and my attention was drawn to this other man.” + + Q. Thomas J. Mooney? + + A. Yes. + + Q. What did he do? + + A. He took his watch out again and looked down toward the dock in the + Ferry building and after he put his watch back in his pocket he drew + his shoulders up and put his hand to his face like he was studying and + looked alongside the building. + + Q. What did he do? + + A. He turned around and went through the crowd and I lost sight of him. + +McDonald described the suitcase as being “kind of jersey, brownish +color,” nineteen inches long, fourteen inches deep and seven inches +thick. He was “just as positive as I am sitting in this chair” that +Billings and Mooney were the men he had watched that July day. As +far as the time was concerned, he thought that he had seen Billings +walking up Steuart Street “about five minutes” after he himself had +arrived at the corner at 1:40. + +Cockran, who had been thumbing through the transcript of McDonald’s +testimony at the Billings trial, could hardly wait for Cunha to finish +with the witness. He didn’t waste any time getting down to bedrock. + + Q. Didn’t you say at the Billings trial that when you saw Billings + place that suitcase there it was about two o’clock? + + A. Yes, but Mr. Cockran-- + + Q. Explain your answer. I understood you to say at the last trial + ... it was two o’clock, and now you want to add something to your + testimony. Am I right? + + A. I know that is also the way I also testified in Judge-- + + Q. Can’t you answer that? Did you say at the last trial it was two + o’clock when you saw Billings place that suitcase near those trap + doors? + + A. Yes, but I also said in Judge Dunne’s court it was eight or ten + minutes of two when Billings came at the time with the suitcase. + + Q. You repeat now it was eight to ten minutes of two and it wasn’t two + o’clock when he put it down? + + A. No, sir, I don’t say it was two o’clock when he put it down. + + Q. You said it then, didn’t you? + + A. Yes. + +After Cockran had brought out that it would have been difficult for +McDonald, who was standing more than one hundred feet away, to see the +five-foot-four Billings through the crowd, the defense attorney came +back to the all-important time element. + + Q. Wasn’t the parade between you and Billings? + + A. They were standing 50 feet off or more on Steuart Street. + + Q. They were on the move at the time? + + A. No, sir. + + Q. Do you mean to say they were not moving at two? + + A. I wasn’t there at two. + + Q. Where were you at two? + + A. Down towards the Alameda Cafe on Market Street or close to it. + + Q. Then you were not there looking at him place it there at about two + o’clock? + + A. I mean about as near as I can tell to two o’clock. + + Q. You don’t want to qualify it now? + + A. I don’t change it. + +In his testimony before the Grand Jury, McDonald had said that, after +losing sight of Mooney, he had “started down Market Street and I got as +far as the Alameda Cafe when the explosion occurred.” He had repeated +this statement, almost word for word, at the Billings trial. Cockran +decided to put the question to him once more. + + Q. How far did you get when the explosion occurred? + + A. Well, I had been standing down in front of the Alameda Cafe looking + at the parade go by, and the parade had gone by, and I still stood + there awhile and I seen the people pushing up toward Steuart and + Market and I thought they were, that it was the units coming out of + Steuart Street, and I was standing in front of the Alameda Cafe when + the explosion occurred. When I did hear the report, I thought it was a + signal for the units to come out of Steuart Street. + +If McDonald could be believed (and it was obvious that Cockran was not +prepared to accept this thesis), he had walked some 150 feet up Market +Street after watching the Mooney-Billings tableau before he heard the +blast. Since he had testified that he had first seen Billings at “eight +or ten minutes to two,” some “25 to 50 feet” away from the corner, +that the machinist had placed the suitcase against the building wall +“about two o’clock,” and that he himself had started up Market Street +in the direction of the cafe before two, it had taken him more than +six minutes to cover the half-block. But the witness had an answer for +this: “... when I started down Market I just took my time and walked +along slowly. I didn’t walk any faster than a snail crawls almost. It +took me a little time to get down to the coffee house.” Didn’t Mr. +Cockran realize that he was still a very weak man? + +McDonald was followed on the stand by Frank C. Oxman, a cattle dealer +from Durkee, Oregon, who had replaced the syphilitic, wife-beating +Crowley as a corroborative witness. It seems that he, too, had been on +the corner of Market and Steuart Streets just before the explosion. He +had pulled into town from Portland “between 12 and 1 o’clock,” and +checked into the Terminal Hotel which was directly across Market Street +from the Alameda Cafe. Then “I went to two or three restaurants and +they were crowded and I couldn’t get a seat and I went over and bought +some fruit and was at the corner of the street and was expecting to +cross the street when the automobile drove up.” + + Q. Where did it come from? + + A. I call it down Market Street. It was going toward the Ferry + Building. + + Q. What was it attracted your attention to that machine? + + A. This defendant was in the front seat holding a suitcase on the + outside with his hands, on the running board. + + Q. The defendant on trial, Thomas J. Mooney? + + A. Yes. + +He described the car as “an old Ford” and identified Israel Weinberg +as its driver. He had seen Mrs. Mooney and Billings, whom he depicted +as “the little auburn-haired boy,” in the vehicle’s rear seat. When +Weinberg stopped the car near the saloon at the corner of Market and +Steuart, “the little auburn-haired boy jumped out of the hind seat, +very excitedly and very rapidly, and took the suitcase from the other +gentleman that was holding it on the front of the machine.” Another +man, who had been sitting in the Ford’s back seat, a man who “had a +stubby mustache and looked like a working man,” got out of the car and +relieved Billings of the suitcase. Then the two men had walked rapidly +down Steuart Street just beyond some metal cellar stairs where Billings +“took the suitcase from the other man and ... set it down by some +doors.” + +While all this was going on, Mooney had left the car and was standing +on the curb, “right out near where I was,” watching Billings and his +mustached companion walk down Steuart Street. + + Q. Then what happened? + + A. Then they came on back where Mr. Mooney was standing near the post + and seemed to be looking for somebody, I don’t know--I think they went + in the door of the building there, I won’t be sure whether all of them + or not, and directly came out. + +Oxman was near enough to hear Mooney tell Billings, “Give it to him +and let him go; we must get away from here; the bulls will be after +us.” The latter then handed something “to the other gentleman that +carried the suitcase part of the way.” + + Q. What happened? + + A. He went across the street ... the other gentleman, I don’t know who + he was. + +After another brief conversation between Mooney and Billings, the +machinist “went first toward the car and Mr. Mooney looked at his watch +and looked at his watch and looked at the tower clock also at the same +time. He glanced over to where the suitcase was after Mr. Billings left +him and then he proceeded to go to the car also.” When he last saw the +Ford, it had “turned into Steuart and went up Steuart.” + +Oxman was certain that all of this had taken place at least twenty +minutes before the explosion because he had returned to the hotel to +wait for a telephone call. + + Q. Now, when you got over to the hotel, did you notice anything about + the time? + + A. Yes. + + Q. What would you say the time was when you arrived there? + + A. It was 15 minutes to two o’clock. + + Q. Around fifteen minutes to two? + + A. Yes, because my telephone call was at two o’clock. + +When Cockran took over, he wanted to know why Oxman had been so +intensely interested in three men and a suitcase with a mammoth parade +going by right under his nose. The witness had a ready answer to this +oblique reflection on his credibility. “I thought these people were +a set of thieves,” he said. “I took more than one glance at them. I +thought they had stolen this suitcase and were caching it out, that was +the reason I took close observation of them.” Besides, despite the fact +that the cattleman weighed two hundred pounds, “Billings pushed me out +of the way so he could go past.” A fat man would remember a thing like +that. + +Why hadn’t he reported the incident to the police when “he had noticed +a mounted policeman there very close just before that?” He didn’t want +to become involved. “Although I thought these men were thieves, I +didn’t call a policeman, I didn’t look for one.” But he did jot down +the license number of the Ford jitney--No. 5187--on the back of a +Western Union envelope with the notation, “Think stolen grip. S. F. +July 22.” + +Thirteen-year-old Jimmy McDougall had been a flag boy with the First +California Volunteers that afternoon. His unit formed in Steuart +Street and had just turned the corner into Market Street when the bomb +exploded. While he was waiting for the Volunteers to join the parade, +Jimmy remembered seeing a light-brown leather suitcase “sitting where +the hole was afterwards.” He had first seen the suitcase, which was +about fifty-one inches long, ten inches wide, and a little more than +fourteen inches high, “about ten minutes before I started to march.” +But he hadn’t noticed any of the defendants in the area. + +Before turning to les dames Edeau, Fickert called Detective John +A. Dolan who had “arrived at the scene of the explosion about five +minutes after it.” Like the other gendarmes who had preceded him on the +stand, he described the positions of the bodies, the condition of the +sidewalk, and the various pieces of metal that littered the area. When +Fickert turned the witness over to him, Cockran saw a neat opportunity +to put a small spike in Oxman’s story. He asked Dolan whether he had +noticed any cars on Market Street after the parade had started. The +detective, who had been assigned to look out for pickpockets on the +sidewalks, said that he had seen no automobiles along the line of march +and that he knew there was a general order excluding them from the area. + +Sadie Edeau and her mother had both testified in the Billings trial. +Although the two women swore that they had observed Billings on the +roof of 721 Market Street, neither one had mentioned seeing any of the +other defendants. Now Miss Edeau said that, shortly after witnessing +Billings on the roof, “I saw Thomas J. Mooney and Mrs. Mooney ... +coming down from the way of 721 Market Street.” When Billings came out +of 721, she had watched him talking to Patrolman Moore. “I next saw +Billings meet Mooney in the center of the sidewalk a little past the +entrance to the Kamm Building a little further out on Market Street.” +When she last saw the trio, they “all started down to the Ferry.” A few +minutes earlier, she had seen Weinberg enter a “five-seated Ford” which +had been parked on Market Street, facing downtown, and “drive down +toward Third Street.” All of this had occurred “between half past one +and twenty minutes to two.” + +Cockran was beside himself when he took the witness over. + + Q. Now, Miss Edeau, will you tell us why you didn’t mention Mr. Mooney + and Mrs. Mooney and Israel Weinberg and the Kamm Building and that + automobile ... at any time during the trial of the Billings case? + + A. Yes, I was never asked anything about them on the witness chair. + + Q. Were you asked what you saw that day? + + A. I was only asked what I saw Billings do. + +In fact, she hadn’t even told Draper H. Hand, the detective who had +interviewed her in Fickert’s office before the Billings trial, all +that she had seen because she “wanted to stay out of the affair.” But +she insisted that she had revealed to him “about seeing the jitney and +seeing the officer honk that horn.” + +However, there was someone in whom Miss Edeau had confided before going +to the police. She had spoken to Professor H. C. Migram, an elder in +her church. But, while she had told him “more than I told Mr. Hand,” +she was obviously not a lady who liked to reveal all at one sitting. + + Q. Did you tell him everything you saw? + + A. I didn’t tell him everything we saw. + + Q. He told you to come over to the District Attorney and tell him + everything you saw? + + A. Certainly. + + Q. And as I understand you, you didn’t tell him everything you saw, + some of it you reserved until today? + + A. Yes. + + Q. Why didn’t you? + + A. Because I didn’t feel like doing it. + + Q. You didn’t feel like telling the whole truth? + + You wanted to tell as much as you wanted? + + A. The reason why I didn’t tell it was because I didn’t want to get + into it. + + Q. But you were in it! + + A. We need not have gotten into it if we didn’t want to be truthful. + + Q. But the elder advised you to go and tell the District Attorney + everything you know? + + A. Yes. + + Q. And you went over and didn’t tell him all that you knew? + + A. I think we did. + +Cockran was muttering to himself when he sat down. + +Mellie Edeau not only vigorously confirmed her daughter’s version, +but insisted that they neither knew of any reward nor were “after +the reward.” “Such a thing as that would not appeal to me,” she told +Cockran. After Patrolman Moore, Peter Vidovich and Herbert C. Wade had +repeated the testimony they had given in the Billings trial, Fickert +called T. K. Stateler, a Civil War veteran who, like young Jimmy +McDougall, had also seen “a suitcase at the place where I afterwards +saw the indentation on the sidewalk.” Stateler, who didn’t have the +stamina he had had at Gettysburg, had tired on his walk from his office +to his unit’s assembly point in Steuart Street. “I looked for something +to sit down on,” he said, “and I saw the suitcase. It was in the shade +and it occurred to me to sit on it.” But a solid belief in private +property had won out and he had decided to rest his G. A. R. bones on a +nearby fence instead. As for the suitcase, “it looked like an old one, +dark tan I should say.” + +Fickert closed out his case with a lecture on the detonation of +dynamite by Arthur H. Crane, an explosives expert, and the testimony of +the officers who had arrested Billings and Weinberg. Lieutenant Bunner +had picked up Billings at the Lane Hospital on July 26th. Later that +day, he had searched the suspect’s home at 2410 Mission Street where +he had uncovered a can of .22-caliber cartridges, a loaded .32-caliber +pistol, a .22-caliber rifle, and ten ball bearings. Detective Hand +had apprehended Weinberg in the famous Ford jitney that same day at +the corner of Golden Gate Avenue and Market Street. Sergeant William +R. Proll, accompanied by two policemen and the ubiquitous Martin +Swanson, had ransacked the Mooney studio in the Eilers Building on July +26th. They had found “fifteen .32-caliber cartridges ... also three +steel-jacketed bullets ... nine .38-caliber cartridges,” as well as an +Iver Johnson pistol. On Tuesday, January 30th, twelve days after Cunha +had arisen to address the newly impanelled jury, he informed Judge +Griffin that “the State rests, your Honor.” Now it was Mooney’s turn. + +Fickert’s case depended on convincing the jury that the cause of the +blast was a time-bomb concealed in a suitcase which Mooney and Billings +had planted at Steuart and Market Streets. Yet, there were witnesses +who had seen an object falling from a roof just before the explosion +occurred. Dr. Mora J. Moss, a physician who was marching with the Sons +of the American Revolution, happened to look toward a building on the +southwest corner and “saw a black object falling through the air.” +When he noticed it, it was between twelve and fifteen inches from the +ground. “It disappeared,” he testified, “behind the people standing +on the sidewalk and a violent explosion immediately followed.” At the +time, he was sure that it was a signal bomb to start the parade and had +been dropped from the Ferry Building. + +Fannie Dahl, Charles F. Hollfender, Louis Eris, and Maud Masterson, +all of whom had been standing in the crowd on Market Street, also had +seen “a dark object” flashing by. Dr. Moss had described it as “a foot +to fourteen inches in length and three and a half to four inches in +diameter.” Eris thought that “it seemed to be cylindrical in shape +and about a foot across.” To Mrs. Masterson it resembled “an object +like a balloon falling.” Janice Compton, who had a sixth-floor room +in the Terminal Hotel, had been watching the parade from her window +when she “saw a man crawl along the cornice of the building then +being demolished just east of the saloon, walk across the roof of the +southwest corner building and lean over the cornice and return, and in +a second the explosion occurred.” + +Thomas U. Doidge, who worked for the Fine Arts Engraving Company, +said that he had been standing near the trolley pole in front of 721 +Market Street, waiting for the parade. After the street had been +cleared of all traffic, a car drove up and parked so close to him that +he had to step aside so that its driver could get out. A few minutes +later, Patrolman Moore had walked over and asked Doidge, “Is this your +car?” When the witness answered, “No, sir, the driver has gone in the +building here,” Moore “took hold of the horn and honked four or five +times.” Shortly after the policeman had continued on his beat, the +driver came out of 721, entered his car and turned left into O’Farrell +Street. Doidge had not noticed any “suitcase or anything else in his +hand.” + +On the afternoon of July 22nd, Wade Hamilton, an employee of the +Eilers Music Company, had been photographing the parade with a small +Brownie folding camera from the roof of 925 Market Street. Four of his +pictures were taken from the rear of the roof and, when he developed +them, he noticed that the Mooneys were included in a group of persons +standing within camera range. A large jeweler’s clock on the opposite +sidewalk also showed up in the photographs. When the defense attorneys +asked Hamilton to let them see prints of the films, he refused and +immediately turned them over to Fickert. At the Billings trial, +blurred prints, which failed to show the clock in the background, were +furnished to the defense and introduced in evidence. + +Now, Maxwell McNutt, who had taken over for Cockran, was determined +to force the prosecution to come across with Hamilton’s negatives. He +asked Griffin to order the Police Department to “produce the films +referred to by this witness.” Cunha gave him a bit of a fight. + + MR. CUNHA: I believe they are in the possession of Mr. Blum, the + police photographer. + + MR. McNUTT: We will ask that they be brought here before the witness + leaves the stand. + + THE COURT: Yes, send for them. + + MR. CUNHA: It is Mr. McNutt’s business not ours, to send for them. + + MR. McNUTT: I have no control over Mr. Blum. Go and get Mr. Blum and + tell him to deliver the films which were delivered to him a week after + the day of the Preparedness Day Parade. + +Cunha, after reminding McNutt that he “had copies of those at the last +trial,” gave in meekly. When the films were brought into the courtroom, +Hamilton identified them as those he had taken on July 22nd. + +Theodore Kytka, a photography expert for the United States Government, +had made enlargements of Hamilton’s pictures. They clearly showed that +the Mooneys had been on the Eilers Building roof at 2:01 p.m. and 2:04 +p.m. on the day of the parade. Since the Eilers Building was more than +a mile away from the corner of Market and Steuart, it was difficult to +see how Mooney could have been in two places at approximately the same +time unless one was prepared to accept a theory later advanced by Mrs. +Edeau that a person’s “astral” and “physical” bodies can be separated +at will. + +John C. Lawlor, another Eilers Music Company employee, had gone to +the roof with his wife “about a quarter to two, ten minutes to two, +something like that.” He had seen Rena Mooney there “about ten minutes +to two.” However, in the Billings trial, he had testified that “I first +went up about ten minutes to two and that I remained there about ten +minutes and started to go down the street and had an engagement and met +Mrs. Mooney coming on the roof alone.” His wife, Gertrude, remembered +that Mooney had also been on the roof “but I can’t say what time it +was.” Mr. and Mrs. Mario Cresafulli had seen the couple there at 1:50 +p.m. as had Mrs. Julia de Lorenzo. + +Before the Mooneys had gone to the roof, they had been in their +fifth-floor studio-apartment. Benjamin Kirsch, who had his tailor shop +in Room 503 of the Eilers Building, had seen Rena Mooney “going down to +the mezzanine floor with a sheet of music in her hand” between one and +1:30 p.m. Harry Rosenblatt, Mrs. Kirsch’s brother, arrived at the shop +“between one and half past” and met the Mooneys there as did Sam Green, +a family friend. Nicholas Hugh Treanor went to Mrs. Mooney’s studio on +the morning of July 22nd and did not leave until 12:30. Rebecca Cutler, +a violin pupil, said that she had come for a lesson that morning but +that she couldn’t remember “what time of day it was.” + +Rena Mooney testified that she had seen three of her pupils on the +morning of the parade. Camille Leger had arrived first, only to +announce that “she would rather not take her lesson that week because +she had been on vacation and had not practiced.” Mrs. Mooney told the +girl not to give it a second thought since the cancellation “was just +as well for me as I was going on a vacation myself.” She had decided to +purchase some underwear at Schwartz & Goodman’s on Fifth Street and the +girl accompanied her to the elevator. While she was out, Rena stopped +in the Clarion and bought a shirt and a tie for her husband. + +After Rebecca Cutler’s violin lesson, the Mooneys decided to go up +to the roof to see the parade because a huge flag on the front of +the building had blocked all their windows. Martha Timberlake, Mrs. +Mooney’s cousin, and Belle Hammersburg, her sister, went to the roof +with the couple and stayed there until the parade ended. Hilbert +Roberts, a fourteen-year-old pupil of Mrs. Mooney’s, “saw her on Parade +Day on top of the Eilers Building while the parade was going on,” but +didn’t know what time it had been. + +When Mooney took the stand, he confirmed his wife’s account of their +activities on July 22nd. He had left the apartment for breakfast at +Hoffman’s Restaurant at 9:30 that morning and returned an hour later. +He recalled that Rebecca Cutler had left his wife’s studio “in the +neighborhood of 1 or 1:15.” A few minutes later, Mrs. Hammersburg and +Mrs. Timberlake arrived and, at approximately 1:30, the quartet went up +to the roof. “We did not leave the roof,” he testified, “until the last +section had passed.” Like his wife, he denied being either at Steuart +and Market Streets or 721 Market Street at any time during the day. + +Israel Weinberg, a Russian-born ex-journeyman carpenter who had turned +to hacking early in 1915, had met Mrs. Mooney when a Mrs. Strager (his +wife remembered the name as Trager) recommended her as a music teacher +for his son. Until he was arrested, he had never met Nolan or Billings. +At 2:05 on July 22nd, he had been paying a bill at the gas company +office on Grant Avenue. Then, after buying some chops and a loaf of +bread, he went home and had his lunch. At 4:45, he had driven to the +Ferry and “kept working until ten o’clock that night.” When it came to +denials, he was just as definite as the Mooneys. “I did not drive a +jitney on parade day up to 721 Market Street or to Steuart and Market +or carry as passengers Mooney, Billings, Mrs. Mooney and a man with a +stubby mustache.” + +Weinberg insisted that he had picked up two men at 29th and Valencia +who ordered him to take them to the 12:20 Ferry. Although he told them +that “I guess I can make it,” he had arrived five minutes too late. +Then, the cabbie picked up two more passengers on E Street who were +destined for Fillmore and Sutter. When the cab reached Golden Gate +Avenue and Jones Street, Weinberg said, “I saw a jitney driver I know, +Simon Statler.” Later a Simon L. Sutter testified that “I saw Israel +Weinberg driving around Golden Gate Avenue and Jones St. between 12:30 +and around 1 p.m. or probably a little after. I don’t know the exact +time. It was in the early afternoon.” Esther Caplan, who ran a misfit +clothing store at 1269 Golden Gate Avenue, had seen Weinberg “between +half past one and two on Saturday” when he had stopped in for a few +minutes to read her a letter from his wife, who had gone east for the +summer. David J. Smith, an old friend, had met him on Golden Gate +between Webster and Fillmore “about a quarter to two.” Weinberg was on +the sidewalk, walking toward his cab, when Smith, who was accompanied +by Leon Carasso, a life insurance agent, had hailed him. + +On February 9, 1917, the jury returned a verdict, finding Mooney guilty +of murder in the first degree. Cockran immediately moved for a new +trial on the ground that the verdict was against the weight of the +evidence, but Judge Griffin decided to let things stand as they were. +On February 24th, he sentenced the defendant to be “hanged by the +neck until you be dead.” If this wasn’t the end of the road for the +thirty-year-old ex-moulder, it was as reasonable and uncomfortable a +facsimile as a union man could ask for. + +But there was more to come. On April 11th, the _San Francisco Bulletin_ +published photostatic reproductions of a series of letters between +Oxman and one F. E. Rigall, the proprietor of a pool hall in Grayville, +Illinois. In the early morning hours of December 14, 1916, the Oregon +cattle dealer had written an urgent--and misspelled--note on the +stationery of the Hotel Terminal to his old friend, urging him to +“cum to San Frisco as a expurt witness in a very important case.” He +promised him “mileage and all that a witness can draw probly 100 in the +clear.” Oxman closed with the plaintive plea that “I need a witness.” +Two days later, Rigall wired: “Will come. Wire transportation and +expenses.” + +Oxman answered him at once. “Your Telegram Received,” he wrote, “I +will wire you Transportation in Plenty of time.” But there was one +condition. “You will only hafto say you saw me on July 22 in San Frisco +and that will be easey dun.” In the meantime, he advised his friend +that “the silent Road is the one and say nothing to any Body the fewer +People no it the Better.” On Christmas day, Oxman informed Rigall’s +mother that he was “sending Ed transportation tomorrow.” Perhaps, he +would be able to use her, too, as “a Extry witness” might come in very +handy. + +Rigall arrived in San Francisco on January 6, 1917, and registered at +the Terminal Hotel as “L. O. Charles.” He was given Room 437. Four days +later, the register was changed to show that 487 was now occupied by +an “F. E. Rigall, Evansville.” On January 17th, at the request of “Mr. +C. M. Fickert,” a card was issued to an “F. E. Rigall” by the Olympic +Club of San Francisco, extending to him “the privileges of the club for +a period of two weeks.” Apparently, nothing was too good for “a Extry +witness.” + +But Rigall was destined never to see action in the Mooney trial for the +simple reason that he had never been in San Francisco before in his +life. On February 12, 1917, three days after Mooney’s conviction, he +sent Cunha a congratulatory wire but warned him that “my evidence will +get party new trial.” The Assistant District Attorney replied by return +telegram that he was “astonished at your suggestion that you have +testimony to help defendant,” and exhorted Rigall to “wire me collect +all details at once.” There was no answer from Grayville. + +On February 13th, Charlotte La Posee gave the defense attorneys an +affidavit in which she swore that she had seen Oxman watching the +parade near the entrance to the Phelan Building, more than a mile from +Steuart and Market, at the exact time when, according to his testimony, +he had observed Mooney and Billings planting the lethal suitcase. +According to the _Examiner_, Fickert was “undisturbed” at this +revelation because “John Regal, an Oregon business man, was a companion +of Oxman the day of the Preparedness Parade and could corroborate the +testimony of the cattle man.” The reason “Regal” hadn’t been called at +the trial was “because of domestic difficulties.” + +Rigall got around to putting his story in writing on April 22nd when +he signed an affidavit in which he claimed that Oxman, with Fickert’s +help, had tried to get him to say that he had seen Mooney at the corner +of Market and Steuart on Parade Day. For this, he was to receive +$250.00 from Oxman and a liberal share of the reward money. But his +conscience had gotten the better of him and he had left San Francisco +on January 26, 1917, without testifying. When he returned home to +Grayville, he had told the story to Mayor Claude O. Ellis, who had +persuaded him to return to California and prevent “the God damndest +frame-up that you ever heard of.” + +Six days earlier, Estelle Smith, the dental assistant who had testified +that Billings and his famous suitcase had been on the roof of 721 +Market Street on the day of the explosion, had admitted that Oxman +had tried to bribe her to identify Weinberg as well. “Wouldn’t you +testify,” he had asked her, “that you saw him for a check in four or +five figures?” To her question, “Who sent you to me, Fickert?,” he had +replied, “No, not Fickert, but men higher up than Fickert.” When she +had told the District Attorney of this offer, she was informed that the +cattleman was “a queer old duck.” + +On April 30, 1917, Oxman was indicted for subornation of perjury. +One month later, Rena Mooney was brought to trial and acquitted on +July 25th. Fickert managed to keep her in jail on the other seven +indictments until March 30, 1918 when she was released in five thousand +dollars bail. On November 27th, Weinberg also was acquitted but it was +not until March 22, 1918, that he was admitted to bail. Nolan, with +Captain Matheson’s help, walked out of prison shortly after the Oxman +exposures and was never tried. + +In the Weinberg trial, eighteen police officers who had been stationed +in the vicinity of Steuart and Market on July 22nd testified that they +had seen no jitney in that area between 1:30 and 2:06 p.m. Inspector +William H. Smith and Captain Walter J. Peterson of the Oakland Police +Department both said that Mrs. Edeau had first told them that she and +her daughter had seen two middle-aged men “carrying a black suitcase +with white metal trimmings at Steuart and Market Streets.” When Mrs. +Edeau was taken to City Prison to identify Mooney and Billings, she +had told Inspector Smith, “I have never seen either of these men in my +life before.” In any event, it had been her “physical” body at Steuart +and Market, she had informed the startled officer, because her “astral” +body was standing on the sidewalk in front of the Kamm Building +watching Billings leaning over the roof of 721 Market Street. Two years +later, her physical hand was to write for the rewards her astral eyes +had earned. + +Although Oxman was acquitted of subornation of perjury, Woodrow Wilson +appointed a Mediation Commission to make an investigation into the +Mooney case. On January 16, 1918, the Commission informed the President +that, while it was not in a position to determine the defendant’s guilt +or innocence, it did feel that “a solid basis exists for the feeling +that an injustice was done ... and that an irreparable injustice would +be committed to allow such conviction to proceed to execution.” On the +strength of this report, Wilson persuaded Governor William D. Stephens +to commute Mooney’s sentence to life imprisonment. + +Because California law did not permit the granting of a new trial on +the basis of evidence that was not in the original record, it became +impossible, notwithstanding Judge Griffin’s earnest attempts, to give +Mooney another hearing. Both the trial judge and the Supreme Court of +California were powerless to act despite that fact that, in May of +1921, Mr. and Mrs. Earl Hatcher of Woodland, California, told a Grand +Jury investigating Oxman’s possible perjury at the Mooney trial that +the cattleman did not board the San Francisco train until 2:15 p.m., +nine minutes after the bomb had exploded some ninety miles to the +southwest. When Griffin reminded Governor Stephens that Mooney had +been condemned upon evidence “concerning the truth of which, there +had arisen a very grave doubt,” he had made the understatement of the +century. + +But there were still more surprises in the offing. Alice Kidwell, +Estelle Smith’s mother, who had testified before the Grand Jury that +she saw Mooney waiting for Billings outside of 721 Market Street, had +written a letter on February 2, 1917, to her husband, who was then +serving a term for forgery in Folsom Penitentiary. In it, she told +him that “the authorities are going to let you out and maybe in a few +days. Captain Matheson and the District Attorney went to see two of the +Board this A.M. and will see the others at Sac. I know I am needed for +authorities and they are helping me by getting you out.” + +Fickert’s largesse was impressive. Before Estelle Smith had retired +to the safety of a dentist’s office, she had been a San Francisco +prostitute with a long arrest record. In addition, she and James L. +Murphy, an uncle, had been indicted in 1913 for the murder of a boarder +at the rooming house in which they were then living. Estelle was never +tried but her uncle was convicted and sentenced to twelve years in +the penitentiary. Coincidentally, Uncle Jim was released on April 10, +1917, forty-five days after Mooney’s sentence. In 1929, Miss Smith gave +Fremont Older, then the editor of the _San Francisco Call_, a sworn +statement in which she admitted she and the Edeaus had been carefully +coached by Fickert’s men. + +On February 7, 1921, John McDonald, the only key witness besides the +Edeaus to testify in all four trials, executed a startling affidavit in +New York City. In it, he stated that, while he had seen a man “lay down +a suitcase” on Steuart Street, he had never seen that man again. But +the District Attorney had wanted more out of him than this. “I think I +talked to Fickert every day for weeks about the case. He kept saying +to me every time I came, always using hard names against Mooney and +Billings, ‘Those are the men you saw there that day.’ Up to this time +I had never told Fickert that I could not have identified these men +if they had not been pointed out to me, and I could not do so.” Just +before the trial, Fickert told him that “there is a reward of $17,500 +for the conviction of these people, and when I put them away, I will +see that you get the biggest slice of the reward.” For a man who hadn’t +worked in months, the temptation was just too much. + +For some weeks prior to July 22nd, more than two hundred hand-printed +post cards had been mailed to various sponsors of the parade. These +cards warned their recipients that, because of their “extreme activity +in promoting and glorifying militarism ... the extermination of you +and your evil class, is going to be the sole and patriotic duty of +the Employees Liberty League.” Although many detectives thought that +there was a connection between the cards and the explosion, Fickert +had dropped any further investigation along this line when handwriting +experts advised him that neither Mooney nor Billings could have written +them. But in 1930, Alonzo A. Smith swore that his brother, Louis, had +told him before he died that he had been hired to throw a time bomb +from the top of Market Street building during the Preparedness Day +Parade. Dora E. Monroe said that Louis had once stated that “it was me +that threw the bomb ... which Tom Mooney was convicted for.” It was +to be dropped into a certain car in the parade and Smith had received +a two-thousand-dollar advance with eight thousand more promised for +results. But he had lost his nerve and thrown the bomb too early. + +The rest of the story consisted of one application after another by +Mooney for a pardon. Although his petitions were supported, at one +time or another, by Captain Matheson, Detective Hand, Matthew Brady, +Fickert’s successor, Judge Griffin, and nine of the ten living Mooney +jurors, four California governors in a row--Richardson, Young, Merriam +and Rolph--refused to free him. Even a daring attempt by the defendant +in 1933 “to risk my neck” by insisting on being tried on one of the +other murder indictments, came a cropper when the district attorney +informed Judge Louis H. Ward that “the evidence in this case is +insufficient ... the State asks for an instructed verdict and rests.” + +It was not until January of 1939 that Governor Culbert L. Olson ended +more than twenty-three years of imprisonment by granting Mooney an +unconditional pardon. But for San Quentin Convict Number 31921, it all +came much too late. The fifty-six-year-old man, who returned to San +Francisco to find his countrymen on the brink of another war, had only +three more years to live. The spirit that, as late as 1932, had been +“aflame with furious indignation,” had burned itself out in a dungeon. + + + + +4 + +_Anarchists With Bloody Hands_ + +The Commonwealth of Massachusetts + +_versus_ + +Bartolomeo Vanzetti and Nicola Sacco + + +Thursday, April 15, 1920, dawned bright and windy in South Braintree, +Massachusetts, a manufacturing town some twenty miles south of Boston. +Shortly after nine that morning, Shelley A. Neal, the local American +Express agent, waited at the New Haven railroad station for the +delivery of a $15,776.51 payroll. The money was consigned to Slater & +Morrill, Inc., one of South Braintree’s two shoe companies. + +The cash arrived on the Boston train at about 9:10, and Neal took it +to his office on the first floor of Hampton House, a four-story frame +building on Railroad Avenue, a few feet from its intersection with +Pearl Street, South Braintree’s main thoroughfare. Slater & Morrill +occupied the top three floors of Hampton House, with its business +office on the second floor. After he had sorted and counted the money, +Neal left his office and walked down Railroad Avenue to the shoe +company’s main entrance in the center of the rectangular building. As +he locked his door, he saw that the hands on his office clock stood +at exactly 9:30. He was a rapid walker and had almost arrived at the +double-doored entrance before he noticed, with some apprehension, that +a large, newly varnished black automobile with its motor running was +parked alongside the curb. + +When Neal passed the car, he saw that its driver, a light-haired man +with an emaciated, jaundiced face, was watching him intently. As he +entered Hampton House, he observed that the man got into the car and +drove slowly up Railroad Avenue. Neal followed the vehicle with his +eyes and thought that he could glimpse another man sitting in its rear +seat. Although he later admitted that he had considered the driver’s +conduct extremely suspicious, the agent did not report the incident to +anyone at Slater & Morrill. + +The company’s paymistress receipted for the money and began at once +to fill the pay envelopes. When she had finished, the grey-colored +packets were stacked in two large tin flats. Thursday was payday at the +factory, and the boxes were scheduled to be picked up at three o’clock +that afternoon by Frederick A. Parmenter, Slater & Morrill’s acting +paymaster. + +The car that had aroused Neal’s suspicions was apparently seen in other +parts of South Braintree that morning. At 10:30, Harry E. Dolbeare, a +piano repairman, was walking on Hancock Street when he noticed what he +later described as “a carload of foreigners” in a large black sedan +turning into Hancock Street from Holbrook Avenue. In the back of the +car, he saw a man with “a very heavy mustache ... leaning forward as +though he was talking to either the driver or the other person in front +of the car.” In all, there were four men in the car who appeared to him +to be “a tough looking bunch.” + +A little after 11:30, Mrs. Lola R. Andrews, an unemployed practical +nurse, arrived in South Braintree with Mrs. Julia Campbell, an elderly +friend. Both women were seeking work and applied first at Slater & +Morrill’s Factory No. 2, a four-story frame building which was located +about an eighth of a mile east of Hampton House on Pearl Street. As +the women entered the factory, Mrs. Andrews noticed a large black car +parked in front of it. She saw a swarthy man, dressed in dark clothing, +bending over the hood. In the back seat, she observed a thin, emaciated +looking man with what she later depicted as “a light complexion.” + +There were no jobs open at Slater & Morrill and, when Mrs. Andrews left +the building some fifteen minutes later, she saw that the swarthy man +was now lying on the ground with his head and shoulders under the front +part of the vehicle. The sickly looking man, who had been sitting in +the rear seat, was outside, leaning against the back of the car. Mrs. +Andrews asked the man under the car if he could direct her to the Rice +& Hutchins factory. At the sound of her voice, he got to his feet and +pointed to the five-story brick building which was some 120 feet west +of Factory No. 2. + +Earlier that day, John M. Faulkner, a Cohasset pattern maker who was +bound for the post hospital at the Watertown Arsenal to be treated for +an infected hand, had boarded the 9:20 train to Boston. He was sitting +in the second seat on the left hand side of the smoker. As the train +came into East Weymouth, the passenger sitting on his right asked him +if the stop was East Braintree. As Faulkner remembered it, “he said, +‘the man behind me wants to know if it is East Braintree.’” The pattern +maker had then looked at the other man who was sitting in a single seat +near the lavatory. “He looked like a foreigner, with a black mustache, +and cheek bones.” The “foreigner” wore a felt hat and was dressed +in “kind of old clothes.” Faulkner had watched him leave the train, +carrying a leather bag, when the local pulled into East Braintree +shortly after ten o’clock. + +At 11:30, William S. Tracy, a real estate broker, had driven by South +Braintree Square. He “saw two men standing with their back to the +window of that [drug]store, the window nearest the corner of Pearl +Street.” Some ten minutes later, he returned to the Square and noticed +that the two strangers were still there. “The man nearest the drugstore +was the shorter of the two and the other fellow ... the shorter man of +the two, he stood erect, and their general appearance was that they +were dressed respectably and looked as if they might have been waiting +for a car.” What had attracted his attention to the men, whom he +thought were Italians, was the fact that “no one was allowed to lean up +against that building.” + +Just after noon, one William J. Heron, a railroad detective, saw two +strange men loitering near the station restroom. “One of them was +about 5 feet 6 inches, weighed about 145 pounds, Italian. The other +fellow was about 5 feet 11; I should say, weighed about 160. They were +smoking cigarettes, one of them.” He had observed them closely because +he considered it unusual for them to be there with no train due for +some time, and “they acted kind of funny to me, nervous....” Heron had +come to South Braintree to look for a lost boy whom he had found in +the station and taken into the ticket office. When he emerged, a few +minutes later, “the two men were gone.” + +Shortly before three o’clock, Parmenter and Alessandro Berardelli, +a guard, arrived at the paymistress’ office on the second floor of +Hampton House. They signed for the payroll and each man took one of the +tin boxes containing the pay envelopes. Mark Carrigan, a shoe cutter, +who worked on the third floor of Hampton House, watched the two men +leave the building. They crossed Railroad Avenue, passed to the right +of the New Haven station, talked briefly with James E. Bostock, a +Slater & Morrill millwright, and then started up Pearl Street toward +Factory No. 2. + +A few minutes earlier, Bostock had noticed two foreign looking +strangers--he later said he thought they were Italian fruit +peddlers--leaning against a fence near a water tank on the north +side of Pearl Street, but he did not mention them to Parmenter or +Berardelli. His conversation with the paymaster and the guard was +brief--he remembered only that Parmenter had ordered him to “go into +the other factory and fix the pulley on the motor” and that he had +answered that he couldn’t do the job that afternoon because he was +“going to get this quarter past three car to Brockton.” + +Albert Frantello, a former Slater & Morrill employee, also saw the two +strangers who had attracted Bostock’s attention, and remembered that +“the one that was nearest me had on a black cap, dark suit, dirty front +on him, looked like a jersey, dark complexion and needed a shave, and +he was a stocky build. The other fellow, he was light complexioned. +He had on a cap; dark suit. He was about as tall as the other fellow, +about the same height, only he was slimmer, kind of pale looking, and +his hair was light. It was not as dark as the other fellow’s. I would +say he was slimmer than the other fellow. He was not stocky build.” The +first man had been wearing “a dark cap ... pulled down just like any +ordinary fellow would have his cap on, just resting on his forehead.” +The two men had been having an argument and Frantello overheard the +stocky one berate his companion “in the American language.” + +After his brief conversation with Parmenter and Berardelli, Bostock +hurried on toward Hampton House. He had only gone a few steps when he +was startled to hear a fusillade of shots behind him. He turned and +saw the guard lying on the ground and a man standing over him with a +smoking pistol in his hand. As he later testified, “... he stood over +him. He shot, I should say, he shot at Berardelli probably four or five +times. He stood guard over him.” Parmenter had dropped his box when he +was hit by the first bullet and managed to run across Pearl Street, +closely pursued by a second man who shot him in the back just as the +pair reached an excavation for a new restaurant on the north side of +the street. + +According to Bostock, both bandits “was dressed in sort of dark +clothes, with ... dark caps ... they appeared to be foreigners.” As +for their physical appearance, “they was fellows of medium build ... +smooth face, dark complected.” When one of the gunmen fired two shots +at him, the millwright jumped behind the wooden fence where he had +first noticed them just before meeting Parmenter and Berardelli. He +had started to run back toward the railroad crossing when a black +seven-passenger Buick drove slowly down the street, picked up the two +gunmen and their loot, and then proceeded down Pearl Street toward the +railroad crossing. The millwright ducked behind the water tank as the +car shot by him. It was so close to him that “if I laid out at arm’s +length I could have touched the spokes of the car as it passed me.” He +saw four men inside, one of whom was firing at the excited crowd which +was rapidly collecting around the bodies of the paymaster and the guard. + +When the shooting started, Lewis L. Wade, a sole leather cutter who +doubled in brass as an auto mechanic for Slater & Morrill, was filling +Mr. Slater’s car with gasoline from a pump located in a little concrete +shed in front of Factory No. 2. He saw Parmenter run across the street +and disappear from view behind “a dirt truck.” A short, bareheaded man +who “needed a shave” was standing over Berardelli, pumping bullets into +the fallen guard. “And the next thing that I saw was a car come up +Pearl Street, and stop--well, it didn’t exactly stop. I wouldn’t say +for sure whether it stopped or not. And there was a man at the wheel +... he was a pale-faced man, a man, I should judge ... about probably +30 or 35. He looked to me like a man that had sickness or he was sick.” + +As soon as the car had passed him, Wade ran into the factory office and +called in the first alarm to the Braintree police. When he returned, +he “went to where Berardelli lay and he was not dead then. He was +breathing, and when he breathed the blood would come up and down on his +face.” Across the street, the mechanic noticed that James E. McGlone, a +teamster who was transporting stone from the restaurant excavation, was +struggling to keep his frightened team from stampeding. McGlone later +described the killers as “dark-skinned Italians” while Hans Behrsin, +Mr. Slater’s chauffeur, who had been crouched behind the gasoline shed +during the shooting, thought they had been “light complexioned boys.” + +Mrs. Barbara Liscomb, who had been looking out on Pearl Street from +a third-floor window squarely in the middle of the Rice & Hutchins +building, said she saw “two men lying on the ground and one man, a +short dark man, standing on the ground facing me with his head up, +holding a revolver in his hands.” She was only at the window “about two +seconds,” having collapsed when the man waved the gun at her, and she +did not see the automobile traveling down Pearl Street. As she later +put it, “I sort of fainted away.” + +Mary E. Splaine, a Slater & Morrill bookkeeper, was working in her +corner office on the second floor of Hampton House that afternoon. Just +after three o’clock, she had watched Parmenter and Berardelli walk +up Pearl Street toward Factory No. 2, and had returned to her desk +when they passed out of her line of vision. When she heard the shots, +which she first thought were automobile backfires, she returned to +the windows which opened on Pearl Street. She saw a black automobile +driving slowly in the direction of the railroad tracks. It crossed +the tracks and, as it passed under her window, she saw one of its +passengers leaning out of the car, a man she later described as “an +active looking man.” + +Miss Splaine did not see the actual shooting but twenty-two-year-old +Lewis Pelser, a Rice & Hutchins employee, claimed that he did. He was +working on the main floor of the factory building when he heard the +first shots. He had rushed to the window, looked out and, as he put it, +“I seen this fellow shoot this fellow. It was the last shot. He put +four bullets into him.” The killer “had wavy hair pushed back, very +strong hair, wiry hair, very dark.” Pelser also jotted down the license +number of the car, noticing as he did so that the rear window of the +vehicle had been removed and that a rifle or shotgun barrel protruded +from this opening. Edgar C. Langlois, his foreman, had watched the +shooting from the floor above Pelser. According to him, the murderers +had been “stout ... thick-chested young men.” + +Winifred H. Pierce, a Slater & Morrill shoemaker, had run to a window +on the Pearl Street side of Hampton House as soon as the gunplay +started. He saw two men in a black car, one of whom was climbing into +the front seat from the rear. Lawrence D. Ferguson, a co-worker who +was standing next to Pierce at the window, corroborated his story. +But Daniel J. O’Neil, a South Braintree school boy, had a different +version. According to him, the man in the car’s back seat had “walked +along [its] running board and before the car had got over the other +side of the crossing that man was sitting in the front seat.” The +man he had seen “was a man [with] dark hair, cleanly shaven, broad +shoulders light complexion.... He wore a blue suit and no hat ... of +and his hair was thick but light and combed back straight over his +head.” + +As Parmenter and Berardelli walked up Pearl Street toward Factory +No. 2, they had been followed by Roy E. Gould, a razor sharpening +paste peddler, who hoped to sell his product to the Slater & Morrill +employees after they were paid. He was running in order to get to the +factory before the paymaster did, so that he could set up his display +stand. Before he could catch up with the two men, the hold-up occurred. +As the Buick passed within ten feet of him on its way toward the +railroad crossing, one of the gunmen fired at him, the bullet piercing +the pocket of his overcoat without injuring him. Gould gave his name +to a Braintree policeman and indicated that he would be available for +questioning if needed. His observations apparently failed to titillate +the police and he was never questioned by them. + +Frank J. Burke, an itinerant glassblower who had arrived in South +Braintree at 2:30 that afternoon to give a demonstration of his art at +a local school, claimed that the hold-up car had passed within ten feet +of him after the shooting. When he first saw it, the sedan was moving +slowly down Pearl Street toward the railroad crossing. He watched two +men jump on the running board and climb into the back seat. As the car +approached the crossing, one of these men crawled into the front seat +next to the driver. Seconds later, Burke heard a gunshot in the car, +and the man who had climbed over into the front seat pointed a revolver +at him and shouted, “Get out of the way, you son of a bitch!” He saw “a +dark man with a short cropped mustache” in the rear of the car. + +Mark Carrigan watched the car drive over the Pearl Street crossing but +it was going too fast for him to recognize anyone in it. One of its +occupants, “had black hair and looked, possibly, like an Italian.” +Louis De Beradinis, who owned a shoe repair shop at the corner of +Railroad Avenue and Pearl Street, noticed a man with a gun standing on +the vehicle’s running board. “This man pointed a revolver to my face” +and had “a long face, and awful white, and light hair combed in the +back. It was a thin fellow I saw.” + +Carlos E. Goodridge, a Victrola salesman, who was whiling away a slow +day in Magazu’s poolroom which was a block west of Hampton House on the +north side of Pearl Street, rushed out when he heard the excitement. He +saw the black sedan cross the New Haven tracks and watched, with idle +curiosity, as it approached Magazu’s. Suddenly, he noticed that one of +its occupants--“a dark complexioned fellow, with dark hair, a peculiar +face that came down pointed”--was pointing a gun at him, and he jumped +back into the poolroom and hid under one of the tables. + +Michael Levangie, the gate tender at the Pearl Street crossing, had +lowered his gates for an approaching train when the Buick came toward +him. He was startled to see that one of the passengers in the car was +pointing a revolver at his head. He was ordered by this man to raise +his gates. He remembered that the person who shouted at him spoke with +a decided foreign accent although it was Burke’s recollection that +the man who had ordered him out of the way had used good English. As +Levangie later testified, “I looked back at the train to see if I had a +chance to let them go. I saw that there was a chance to let them go and +I let them, and I put my gates back where they belonged.” He was able +to describe only one of the vehicle’s occupants, the driver, who, he +said, was “a dark complected man with cheek bones sticking out, black +hair, heavy brown mustache, slouch hat and army coat.” + +The Buick continued down Pearl Street and turned left on Hancock +Street. As it crossed the New Haven tracks, it was seen by eight +railroad workers, most of whom described the driver as “kind of +light-complexioned” and the man sitting alongside of him on the front +seat as “big and dark.” Shelley Neal saw it make the turn when he +ran out of his office upon hearing the shots. As it passed the drug +store on the corner of Pearl and Hancock, its passengers scattered +rubber-headed tacks along the road. It took more than a week before +South Braintree could count a day without at least one blowout on +Hancock Street. Daniel Buckley, a railroad employee, was the last +person in South Braintree to see the car as it headed out of town on +South Street. + +Several people remembered spotting it later that afternoon as it +headed south through Randolph, Canton, Stoughton, Brockton and West +Bridgewater. At four, sixteen-year-old Julie Kelliher, a student at +Brockton’s Hancock School, saw a black sedan hurtling through that town +at such a high rate of speed that she reported it to the police. It was +next seen by Austin Reed, the gate tender at the Matfield Crossing just +outside of West Bridgewater, at 4:15. Reed waved his warning sign at +the oncoming automobile because a train was expected momentarily. One +of the men in the car pointed his finger at the startled gate tender +and snarled, “What to hell you hold us up for?” The man he saw was “a +dark complected man, kind of hollow cheeks, with high cheek bones, had +a stubby mustache. His hair was black.” + +Meanwhile, back in South Braintree, the horror-struck bystanders, who +had been scattered momentarily by some shots from the rear window +of the disappearing Buick, regathered around the two wounded men. +Berardelli was lying in the street with his head next to the curbing. +He was almost dead. According to Jim Bostock, the first man to reach +him, “he laid in a kind of crouched position and I helped lay him down +and every time he breathed, blood flowed and was coming out of his +mouth.” The two men were taken to the home of Horace A. Colbert, a +railroad tower man who lived just east of the restaurant excavation, +where Berardelli died. Parmenter lived until five o’clock the next +morning. + +Fred L. Loring, a Slater & Morrill shoe worker, noticed a cap with +earlaps near Berardelli’s body, which he picked up and turned over to +his superintendent. The next day, the latter gave the cap to Jeremiah +F. Gallivan, Braintree’s police chief, who kept it under the seat of +his car for ten days before delivering it to Brockton’s Captain John +Scott. The only other evidence found at the scene were some empty +cartridges which littered Pearl Street. Berardelli’s Harrington & +Richardson revolver, which he had been carrying that day, was missing. + +Two days later, the Buick was discovered by two horsemen in +Bridgewater’s Manley Woods, some five miles west of the Matfield +Crossing. Leading away from the abandoned vehicle were the tiretracks +of a smaller car. Although the black sedan’s license tags had been +removed, plates with the number which Louis Pelser had jotted down +two days before had been pilfered from another car early in 1920. The +Buick itself had been reported as stolen by its owner, a Dr. Francis J. +Murphy, on November 23, 1919. The isinglass rear window was pushed out +and there was a bullet hole in the car’s right rear interior. It was +later identified by almost every eyewitness as similar to the one they +had seen on the day of the robbery. + +Bridgewater’s Police Chief Michael E. Stewart was convinced that the +crime had been committed by a resident Italian who owned a car. Mike +Boda, who boarded with a radical named Coacci in a shack near the +Manley Woods, was interviewed by Stewart three days after the South +Braintree murders. He told the police officer that his car, a small +Overland, was stored in Simon Johnson’s garage in West Bridgewater. +Stewart called on Johnson and told him to notify the police if anyone +called for Boda’s car. + +On the evening of May 5th, Nicola Sacco, a Stoughton shoe worker, +Bartolomeo Vanzetti, a Plymouth fish peddler, Boda, and a mutual +friend named Ricardo Orciani, started out from the former’s house for +West Bridgewater to pick up the Overland. Sacco and Vanzetti took the +trolley while the other two men rode on Orciani’s motorcycle. When +Boda and Orciani arrived at the garage, they found it locked. They +then walked over to Johnson’s house where they were soon joined by +Sacco and Vanzetti. Boda rang the bell and, when the garage owner’s +wife opened the door, told her that he had come for the Overland. While +the four men waited, Mrs. Johnson went over to a neighbor’s house and +telephoned to Chief Stewart. Meanwhile her husband had convinced Boda +that, since the Overland did not have 1920 plates, it would be better +to leave it in the garage. Boda apparently took his advice and drove +off on the motorcycle with Orciani. + +Sacco and Vanzetti left the Johnson house and boarded the North Elm +Street trolley for Brockton. When the car was passing through the +Campello section of Brockton, it was boarded by a policeman who +immediately arrested the two men. The officer found a .38-caliber +Harrington & Richardson revolver (which was not Berardelli’s) and some +shotgun shells in Vanzetti’s coat pocket. Sacco denied that he was +carrying a gun and “a slight going over” did not reveal any weapon +on his person. Later that evening, at the Brockton police station, +“an automatic .32 Colt revolver” was found in his belt as well as +thirty-two cartridges of various makes. + +Four weeks later, Vanzetti was indicted for an attempted holdup that +had taken place at Bridgewater on the morning of December 24, 1919, in +which several “foreigners” had tried to hijack a truck containing the +payroll of the White Shoe Company. According to eyewitnesses, two men +had parked their automobile so that it blocked off Broad Street, the +road leading to the shoe company. Guards in the payroll truck had fired +at the holdup men who had retreated to their car and driven away. One +of the thwarted bandits, who was armed with a shotgun, had discharged +his weapon harmlessly at the guards before turning tail. + +The trial of this indictment began at Plymouth on June 22, 1920, before +Judge Webster Thayer and a jury of twelve men, one of whom was the +foreman at the Plymouth Cordage Company from which Vanzetti had been +discharged in 1916 for participating in a strike. The charges against +the fish peddler were assault with intent to rob and assault with +intent to murder. Sacco was not indicted because the records of the 3-K +Shoe Factory in Stoughton indicated that he had been at work on the day +of the crime. + +Frederick G. Katzmann, the District Attorney of Suffolk and Plymouth +Counties, took the position that the 1920 Buick which had been found in +the Manley Woods on April 17th had also been used in the Bridgewater +assault. He had three witnesses--the two guards who had been in the +payroll truck and a shoe company employee--who identified Vanzetti as +the man who had fired the shotgun. A Mrs. Georgina F. Brooks, who had +been walking near the Bridgewater railroad station, said that she had +seen Vanzetti driving an automobile in the vicinity just after the +shooting. Maynard Freeman Shaw, a newsboy, swore that he had seen the +defendant that morning running up Broad Street with a gun in his hand. +He knew he “was a foreigner, I could tell by the way he ran.” Most of +the witnesses described the bandits’ automobile as a “dark touring car.” + +The prosecution rested on June 28th and Vanzetti’s attorneys, J. P. +Vahey and J. M. Graham, put sixteen Italians on the stand to prove +that the defendant had an alibi for the day of the crime. His landlady +said that she had seen Vanzetti preparing his fish on the evening of +December 23rd and that she had awakened him early the next morning. +Other Plymouth residents swore that they had purchased eels from him +during the day. John DiCarli bought some shortly after seven a.m. and +Mrs. Terese Malaquci an hour later. Between nine and ten, Beltrando +Brini, a thirteen-year-old boy who worked for Vanzetti, delivered some +fish to Mrs. Adeladi Bonjionanni and to her neighbor, Mrs. Margaretta +Fiochi. All told, some seven people testified that Vanzetti or young +Brini had filled orders for them on the morning of the twenty-fourth. +Upon the recommendation of his lawyers, who were afraid that his +radical opinions and activities would be brought out, Vanzetti did not +take the stand. + +The jury retired at 10:50 on the morning of July 1st and returned a +verdict of guilty on both assault charges a little more than five hours +later. In the middle of August, Judge Thayer sentenced the defendant +to twelve to fifteen years in prison. As the verdicts were announced, +Vanzetti turned to his many friends in the courtroom and said, +“Corragio.” Although a notice of appeal was duly filed with the Supreme +Judicial Court, it was never perfected because of the subsequent murder +conviction. + +On September 11th, both Sacco and Vanzetti were indicted for the South +Braintree murders by “beating and shooting ... against the peace of +said Commonwealth.” However, it was not until May 31, 1921 that their +joint trial began in Dedham, a Boston suburb, before the ubiquitous +Judge Thayer. It took more than four days and seven hundred Norfolk +County veniremen before George A. Gerard, the last juror, was sworn +in at 1:35 a.m. on June 9th. Thayer appointed Walter R. Ripley, a +stock-keeper and former Quincy police chief, as foreman and it was at +last time for Katzmann to put in his case against the two immigrant +defendants. + +After Vanzetti’s conviction on the assault charges, the Sacco-Vanzetti +Defense Committee, headed by Aldino Felicani, the editor of _La +Notizia_, an Italian-language newspaper, retained Frederick H. Moore +and William J. Callahan, for Sacco, and two brothers, Jeremiah J. and +Thomas F. McAnarney, for Vanzetti. Moore, a member of the California +Bar, was named chief counsel for both men despite strenuous pre-trial +efforts by Mrs. Sacco to have him withdraw in favor of William G. +Thompson, a Boston attorney. The Commonwealth was again represented by +Mr. Katzmann who was aided by Assistant District Attorney Harold P. +Williams. + +After the physicians who had conducted the autopsies on the two +murdered men had described their wounds and identified the bullets +taken from their bodies, Shelley Neal told the jury about the black +sedan he had seen in South Braintree on the day of the crime. He was +positive that it was the same car that had been found in the Manley +Woods two days later. But, outside of remembering that there had been a +slender man with light hair standing next to the Buick when he had seen +it parked in front of Hampton House on the morning of the holdup, he +was unable to describe any of the vehicle’s occupants. + +Neal wasn’t the only prosecution witness who couldn’t identify the +defendants. Hans Behrsin, Mr. Slater’s chauffeur, had observed two +“light complexioned fellows” sitting on the fence near Rice & Hutchins +just before the shooting. But he was unable to describe them with any +certainty because “they were all covered up.” After the murders, he had +seen the Buick heading for the Pearl Street crossing. When it passed +him, “the back curtains were drawn and flopping around back and forth, +and I think there were about five of them in there ... and as that +passed me by there was some one on the back there beckoning with a gun +or shotgun.” Because he hadn’t gotten a good look at any of the men in +the car, he couldn’t say that Sacco or Vanzetti had been riding in it. + +Jim Bostock had been taken to see the defendants shortly after their +arrest and asked whether they were the men he had seen on Pearl Street +that afternoon. Like Behrsin, he “could not tell whether or not they +was, no, sir.” Lewis Wade could not “say for sure” if Sacco was the +man who had shot Berardelli. Even though he had told Katzmann at the +Brockton Police Station that the defendant was the man he had seen, he +now thought he had been “a little mite mistaken.” The reason he was no +longer sure of his identification was that just before the trial he had +seen a man in a barber shop who resembled the murderer. + +Foreman Langlois, who had watched two “young men” firing at the +guard and the paymaster, remembered only that they had been “short +and dark complexioned, curly or wavy hair, about five feet, eight or +nine inches, about 140 or 145 pounds.” He was sure that he could not +identify either man if he saw them again. Mark Carrigan had seen the +car race over the crossing but had not been able to recognize anyone in +it because it had been going so fast. Louis DeBeradinis, the proprietor +of a shoe repair shop at the corner of Railroad Avenue and Pearl +Street, had been frightened by a man with “a long face ... and light +hair” who had leaned out of the car and pointed a gun at him. Although, +he thought that dark-haired Sacco looked like the man with the gun, he +insisted that the latter had been “a light-haired man.” + +But Katzmann was not wanting for more definite eyewitnesses. He had +five who claimed to have seen Vanzetti near South Braintree on April +15th. John Faulkner said he had observed him, bushy mustache and +all, on the Boston train that morning. But he was unable to remember +anything about the man sitting to his immediate right who had asked +him, supposedly at Vanzetti’s request, whether the next station was +East Braintree. He admitted that he had seen a picture of the defendant +in a newspaper before he was taken to the jail to identify him. The +conductor on the train later testified that he, too, had seen such a +man get off at East Braintree on several occasions long after April +15th, but he was certain that he was not Vanzetti. + +Harry Dolbeare, the piano tuner, who swore that he had noticed Vanzetti +among a group of “foreigners” sitting in the back of a car before noon +on the day of the shootings, couldn’t identify any of the other men. +Although gate tender Levangie was sure that Vanzetti was the “dark +complected man” who had frightened him with a pistol at the Pearl +Street crossing, he couldn’t remember whether Mr. McAnarney had visited +him at his shanty barely two weeks before the trial started. Alexander +G. Victorson, the railroad’s freight clerk, later testified that +Levangie had said, minutes after the shooting, that he didn’t think +he could identify the men he had seen in the car as it sped over the +tracks. + +An hour later, the gate tender told Henry McCarthy, a locomotive +fireman, that he had “ducked in the shanty” when he saw the guns +pointed at him. “I asked him if he knew them,” McCarthy said, “He said +no, he did not. I asked him if he would know them again if he saw them. +He said ‘No,’ he said all he could see was the gun and he ducked.” +Shortly afterward, Levangie informed Timothy J. Collins, a _Boston +Globe_ reporter, that he had not seen anyone in the car, while, at +4:30, he told Slater & Morrill’s Edward Carter that its driver had been +“a light-haired man.” + +Austin T. Reed, the gate tender at the Matfield Crossing in West +Bridgewater, identified Vanzetti as the man sitting next to the driver +of a “five-passenger car” which had roared toward his intersection at +4:15. The automobile had screeched to a stop when Reed lowered his +gates because of an approaching train. When the train had passed, +the car crossed the tracks and pulled up alongside Reed’s shanty. +Vanzetti, he said, had shouted, “What to hell did you hold us up for?” +in “English that was unmistakable and clear.” The vehicle then drove +off to the east, circled around, and finally recrossed the tracks, +disappearing in the direction of West Bridgewater. Like Faulkner, Reed +had gone voluntarily to Brockton and “asked to see the two defendants +that were there.” He had listened to Vanzetti speak to an officer at +the police station in “the same gruff tone that he used in speaking to +me.” + +Austin C. Cole was the conductor of the street car on which Sacco and +Vanzetti were arrested. He was sure that they were the same two men he +had seen on his car on either April 14th or 15th. According to him, +they had boarded the trolley at Sunset Avenue, some two miles from +West Bridgewater’s Elm Square. He particularly remembered Vanzetti +because he had first thought that the latter was a friend of his +named Tony. When the defense showed him a side view photograph of one +Joseph Scavitto, a man who bore a striking resemblance to Vanzetti, +the witness was unable to say that it was a picture of the man who had +boarded his car because he had never seen his profile. + +The prosecution had seven witnesses who identified Sacco. Lola Andrews +insisted that he was the man she had seen working under the car near +Slater & Morrill Factory No. 2. When Katzmann asked her to look around +the courtroom, she pointed to the steel cage in which both defendants +were seated and said, “That man there.” Sacco sprang to his feet and +shouted, “I am the man? Do you mean me? Take a good look!” Yes, she was +sure that the man who had just yelled at her was the same dark man who +had told her how to get to Rice & Hutchins. + +Mrs. Andrews claimed that she had picked out Sacco in the Dedham Jail +in February. After she had been taken through the prison, she had +accidentally seen the defendant in one of the cells. She couldn’t +remember whether he had been alone or not but she had watched him +for at least fifteen minutes. No one had told her to look into that +particular room. “The room I was in,” she said, “was--I don’t know just +how to explain it, but it had kind of an opening back here, like there +was a room underneath that you could look from the room I am in down +into this room underneath.” + +When Mr. Moore showed her some snapshots and asked her whether she +had looked at them before at his request, she stated that “I don’t +recognize any of those photographs at all.” The next day, Mrs. Andrews +collapsed on the stand when Mr. McAnarney tried to pin her down as to +just what pictures she had seen. Later in the trial, Mrs. Campbell, +who had accompanied Mrs. Andrews to South Braintree on April 15th, +swore that the man under the car had “never looked up at all” and that +neither she nor her friend had spoken to him. + +But Mrs. Campbell wasn’t the only witness to contradict the practical +nurse. George W. Fay, a Quincy policeman, said that she had told him +in February that she had not seen any man’s face that day. She had +also told Alfred N. LaBreque, the secretary of the Quincy Chamber of +Commerce, the same thing. Harry Kurlansky, a tailor whose shop was +near Mrs. Andrew’s house, remembered a conversation he had had with +her when she returned from the Dedham Jail. “The Government took me +down and want me to recognize those men,” she had complained to him, +“and I don’t know a thing about them. I have never seen them and I +can’t recognize them.” A former landlady, who readily admitted that she +didn’t like her and “wouldn’t have her in my house again,” said that +she had a “bad name” in the community. + +Real estate broker Tracy, who had told the police that he had seen +Sacco standing near a Pearl Street drugstore at noon on the day of the +murders, had identified him in jail ten months later. However, he was +not prepared now to say that he was “positively” the man. “To the best +of my opinion he is the man,” he testified. While he was “quite sure” +that he was right, he was willing to “suppose the best of people could +make a mistake.” + + Q. Then you feel you could not be mistaken in the identity of this man? + + A. I said I would not positively say he was the man; but I wouldn’t + positively say so. + +William J. Heron, the railroad detective, claimed that he had seen +Sacco handcuffed to a policeman near the Quincy Courthouse some six +weeks after having observed him in the South Braintree station. He was +“pretty sure” that the defendant was the same “nervous Italian” he had +watched in the waiting room. He readily admitted that he had refused to +talk to defense investigators when they came to see him before trial. +His reluctance, he said, had been due to the fact that he didn’t want +to become involved. Besides he didn’t think that his information would +be helpful to the defense. McAnarney’s face purpled with anger. + + Q. You took it on yourself to determine the fact that your evidence + would hurt these defendants, didn’t you? Did you? + + A. Yes, sir. + +The man whom Lewis Pelser had seen shoot Berardelli had been wearing a +“dark green pair of pants and an army shirt, tucked up.” He would not +swear that Sacco was the gunman but insisted that “he is the dead image +of the man I seen.” He had written down the Buick’s license number but +he had not seen anyone in the car. “I was too anxious to get away,” he +said, “I was kind of scared myself.” + +When Moore took over, he asked the witness whether he had been +interviewed by a Mr. Reid on March 26th. Yes, he had, but he hadn’t +told him everything he knew because “I didn’t know him well enough.” +He admitted that he had told the investigator that he hadn’t seen the +murderer because he had ducked under his workbench when the shooting +started. But he insisted that he “didn’t exactly lie to Mr. Reid.” In +fact, he hadn’t even told the District Attorney what he had seen that +day until he took the stand. Moore’s voice was heavy with disbelief. + + Q. You never talked to a living soul and told them what you intended + to say on the witness stand today, and told them the truth, until you + got on the witness stand. + + A. Yes, sir. + +Later, William Brenner, Peter McCullum and Dominic Constantino, who +had been working with Pelser on the first floor of the Rice & Hutchins +factory, testified for the defense that they had not seen the latter +at the window when the shooting took place. According to the three +men, everyone on the first floor had ducked under his bench when the +gunshots had shattered the air. Constantino was sure that Pelser had +not stood up until after the murders had occurred. He remembered that +Pelser had told him that he had not been able to see any of the killers. + +Mary Splaine, the Slater & Morrill bookkeeper, who had picked Sacco +out in the Brockton police station as the man she had seen leaning out +of the Buick just after it roared across the Pearl Street crossing, +identified him again. “He was a man,” she claimed, “that I should say +was slightly taller than I am ... he was an active-looking man. I noted +particularly the left hand was a good-sized hand, a hand that denoted +strength.... He had a gray, what I thought was a shirt ... and the face +was what we could call clear-cut, clean-cut face. The forehead was +high. The hair was brushed back and it was between, I should think, two +inches and two and one-half inches in length and had dark eyebrows, +but the complexion was a white, peculiar white that looked greenish.” +Evidently, years of poring over account books hadn’t interfered with +the witness’ eyesight because this detailed observation had been the +result of a three-second glance “from a distance of from 60 to 80 feet.” + +When Moore reminded her that, at the preliminary examination at Quincy, +she had said that she was not sure that Sacco was the man she had seen, +Miss Splaine denied that she had ever made that statement. The next +day, however, she indicated that perhaps she had indeed said that. + + Q. Do you wish to change any part of your testimony that you made + yesterday? + + A. Yes, sir. + + Q. What part of your testimony would you like to change at the present + time? + + A. That question and answer where you asked me if I possibly + identified the man, and in Quincy I said I didn’t feel I would + positively identify him. I said I didn’t say that yesterday, but on + reflection that was the answer in Quincy. + +In addition, she admitted that, after the shooting, she had identified +a photograph which the police had shown her as the man she had +observed leaning out of the car. She later learned that the man in the +photograph had been in New York’s Sing Sing Prison on April 15th. + +When Mr. McAnarney took over from Moore, he asked the witness whether +she was sure that she had had enough time on the day of the murders to +get a good look at the defendant. “Yes, sir, I think I did,” was her +answer. The lawyer shook his head. Hadn’t she testified in Quincy that +“I don’t think my opportunity afforded me the right to say he is the +man.”? Yes, she had made that statement. But now, she was “positive he +is the man, certain he is the man. I admit the possibility of an error, +but I am certain I am not making a mistake.” McAnarney pressed her. + + Q. What did you mean when you said you didn’t have sufficient + opportunity to observe him? + + A. Well, he was passing on the street. + + Q. That is the only opportunity you had? + + A. Yes, sir. + + Q. You have had no other opportunity but that fleeting glance? + + A. The remembrance of that. + +She hadn’t seen Sacco since the Quincy hearing on May 26, 1920, but, +even without “any further examination of him,” she had changed her mind +and now believed that he was the man. + +Frances J. Devlin, another Slater & Morrill bookkeeper, who worked in +the same room with Miss Splaine, had seen a man in the back of the +Buick fire into the crowd that had developed around Parmenter and +Berardelli. “He was a dark man,” she recalled, “and his forehead, the +hair seemed to grow away from the temples, and it was brown-black +and he had clear features, rather clear features, and rather good +looking, and he had a white complexion and a fairly thick-set man, I +should say.” She had identified Sacco at the Brockton Police Station +as looking “very much like the man that stood up in the back seat +shooting.” She was far more definite when Katzmann asked her to look +around the courtroom and “see if you see that man.” She pointed to the +steel cage in which the two defendants were sitting and said, “The man +on the inner side as you go out.” + + Q. The man who is smiling? + + A. Yes, sir. + + Q. That man you know is Sacco? + + A. Yes, sir. + +No, there had never been any doubt in her mind “at any time” that the +defendant was the man she had seen. + +Yet, a year earlier she had testified in Quincy that she couldn’t say +“positively” that Sacco was the gunman she had witnessed. But she had +a ready answer for the seeming conflict in her testimony. “At the time +there I had in my own mind that he was the man, but on account of the +immensity of the crime and everything, I hated to say right out and +out. I knew he was the man and still I didn’t want to say knowing as I +knew it would be a deliberate lie, according to my own mind, but still +I hated to say right out and out, so I just put it that way.” She had +also sworn in Quincy that short, stocky Sacco was “a man who seemed as +though he was a big man to me.” + +Victrola salesman Carlos E. Goodridge was certain that Sacco was the +man who had waved a gun at him when the black Buick raced by Magazu’s +pool parlor on lower Pearl Street. He remembered the defendant as +“a dark complexioned fellow with dark hair and he had ... a kind of +peculiar face, that came down pointed.” When McAnarney tried to find +out whether Goodridge wasn’t having his own problems with the law, +Judge Thayer intervened. “You can’t attack any witness’ credibility,” +he observed, “except by showing a record of conviction.” The jury was +never to learn that the salesman had recently pleaded guilty to larceny +and had been placed on probation. + +Goodridge’s testimony conflicted sharply with that of Harry Arrogani, +a South Braintree barber. Five or six days after the murders, +Goodridge had told the barber that he had seen “a man in the car but +if I have got to say who the man was, I can’t say.” Peter Magazu, +the owner of the pool room, said that Goodridge had described the +man who had pointed the gun at him as a “young man with light hair, +light complexion.” Andrew Manganio, Goodridge’s sales manager, later +testified that his pool-playing employee had refused to identify the +defendants in jail because he had been so frightened by the gun that +“he could not possibly remember the faces.” + +Drs. George B. Magrath and Nathaniel S. Hunting had conducted the +autopsies on the two murdered men. Four bullets were found in +Berardelli’s body and two in Parmenter’s. As each bullet was removed, +the physicians had scratched a Roman numeral in its base. The one which +had caused Berardelli’s death, a .32-caliber Winchester, was marked No. +III. At the trial, Captain William H. Proctor, the ballistics expert +for the Massachusetts State Police, testified that all but the No. III +shell had been fired through a Savage automatic pistol. + +When Sacco was searched at the Brockton police station, a “.32 Colt +automatic,” which was to become Katzmann’s Exhibit 28, was found in his +belt. Proctor said that he had conducted tests on the fatal bullet and +the defendant’s gun. As a result of his investigation, he was prepared +to say that No. III was “consistent with being fired by that pistol.” +As for the other five bullets, his opinion was that they had not been +fired from Sacco’s Colt. + +Captain Proctor’s opinion was shared by Charles Van Amburgh, an +assistant in the ballistics department of the Remington Arms Company. +He also had examined the fatal bullet and Sacco’s pistol. + + Q. Have you formed an opinion ... as to whether or not No. III bullet + was fired from that particular Colt automatic? + + A. I have an opinion. + + Q. And what is your opinion? + + A. I am inclined to believe that it was fired, No. III bullet was + fired, from this Colt automatic pistol. + +He had reached this conclusion after comparing the No. III bullet +with six test shots which he and Captain Proctor had fired into oiled +sawdust at Lowell, Massachusetts. “My measurement of rifling marks on +No. III bullet as compared with the width of the impressions which I +have taken of No. III or of this particular barrel,” he explained, +“together with the measurements of the width or dimension of rifling +marks in bullets recovered ... in Lowell, inclines me to the belief.” +In addition, he had observed marks on No. III which he thought were +caused by pitting in the groove of Sacco’s Colt. + +James E. Burns, an expert marksman who had been employed by the United +States Cartridge Company for more than thirty years, contradicted the +prosecution’s experts. He, too, had examined the fatal bullet, and he +was convinced that it had not been fired from Sacco’s gun. + + Q. ... on what do you base that opinion? + + A. On the 11 bullets that I examined that were fired from the Sacco + gun. It doesn’t compare with them at all. + +The Colt’s barrel had shown “a clean-cut lead all the way through.” +There wasn’t a particle of doubt in his mind that No. III had not been +fired “from a gun that had a clean lead.” + +J. Henry Fitzgerald, the director of the testing room at the Colt +Firearms Company, agreed with Burns that No. III “was not fired from +the pistol given to me as Exhibit 28.” He had examined three bullets +which had been fired by Mr. Van Amburgh at Lowell and, “the land marks +of the No. III bullet do not correspond, in my best judgment, to +bullets I have seen fired from this pistol.” Like Burns, he had been +unable to find any distinctive pittings in the groove of Sacco’s gun. + +The cap which Fred L. Loring had found lying near Berardelli’s +body had been turned over to Thomas F. Fraher, Slater & Morrill’s +superintendent. Katzmann called George T. Kelley, Sacco’s foreman at +the 3-K Shoe Factory, who testified that the defendant often wore a cap +to work. “There were times that he wore a cap,” Kelley said, “There was +other times he wore a hat.” As to the former, he could remember only +that it had been “a dark cap ... of a salt and pepper design.” He was +unable to recall whether the cap he had seen hanging on a nail near +Sacco’s workbench had earlaps or not. + +When the defense objected to the introduction of the cap on the ground +that it had not been sufficiently identified as belonging to Sacco, +Judge Thayer ordered Mr. Williams to ask Kelley whether “that cap ... +is like the one that was worn by the defendant Sacco?” “In color only.” +the witness replied. + + THAYER: That is not responsive to the question. I wish you would + answer it, if you can. + + KELLEY: I can’t answer it when I don’t know right down in my heart + that that is the cap. + + THAYER: In its general appearance, is it the same? + + KELLEY: Yes, sir. + +Thayer promptly admitted the cap into evidence as the Commonwealth’s +Exhibit 29. + +After Sacco’s arrest, Lieutenant Daniel T. Guerin had visited his home +and found another cap in the kitchen. Later in the trial, when Kelley +was recalled as a witness for the defense, he was shown this second +cap. He said that he thought that the cap the policeman had found +looked more like the one he had seen the defendant wearing than did +Exhibit 29. On cross-examination, Katzmann asked him if he hadn’t told +the police when they interviewed him about the cap that “I have an +opinion ... but I don’t want to get a bomb up my ass.” Kelley admitted +that he “might have said it when they drove off, but not at the time +when they showed me the cap.” + + Q. Was that in reference to the cap? + + A. Yes. + +Later in the trial, when Katzmann cross-examined Sacco, he asked him to +put Exhibit 29 on his head. According to the _Boston Herald_, “It stuck +on the top of his head and he turned with a satisfied air to let the +jury see.” He then explained to the District Attorney that the cap was +“too tight” to fit properly. + + Q. You are sure of that? + + A. I am pretty sure. I can feel it. + +He denied that the cap was his and his wife subsequently testified that +her husband “never wore caps with anything around for his ears, never, +because he never liked it and because, besides that, never, he never +wore them because he don’t look good in them, positively.” + +Mrs. Simon Johnson said that, after her husband had gone to bed on +May 5th, Boda had knocked on her front door and asked her whether he +could pick up his Overland car. When she awakened her husband, he had +told her to go next door to Mrs. Bartlett’s and telephone the police. +She had walked over to her neighbor’s house and called Chief Stewart. +Although there was no street light near her home, the area had been +illuminated by the headlight of a motorcycle which she noticed was +parked in the street. Two strange men who were standing in the vicinity +of the vehicle, seemed to follow her when she left to make her call. +Ten minutes later, when she was walking back from Mrs. Bartlett’s, she +saw the same men who appeared to be “walking along” with her. She was +sure that Sacco was one of the men who had tailed her that night. + +When she had testified in the earlier trial of Vanzetti at Plymouth, +Mrs. Johnson had not been so confident of her identification of the men +who had followed her. Then she had been certain that she “did not know +who they were or whether they were the same men or not.” Now, she was +prepared to say that “one of them” was the same man. + + Q. ... do you want to say that you recognized Sacco before you went + into the Bartlett house? + + A. I would know him if I saw him again. + + Q. I submit it is not an answer to the question. + + THE COURT. Can you answer it, Mrs. Johnson, by Yes or No? + + A. Yes. + + Q. Then by that I assume that you mean you did recognize him before + you went into the Bartlett house? + + A. Before I did, yes. + +The witness’ husband told a somewhat different story. At no time, +had either of the strange men been illuminated by the beams of the +motorcycle’s light. While he had not watched his wife walk over to the +Bartlett’s, he had seen her on the return trip. At that time, he was +sure that, with the exception of Boda, all the strangers were standing +near the cycle. He had told Boda that he couldn’t have the car that +night because “there were no 1920 number plates on it.” The latter had +replied that “I will send somebody for it tomorrow,” but no one had +ever called for the car. + +Michael J. Connolly and Earl J. Vaughan, two Brockton policemen, had +arrested the defendants on the North Elm Street trolley later that +evening. Connolly was the first officer to board the car. “... I went +down through the car,” he said, “and when I got opposite the seat I +stopped and I asked them where they came from. They said, ‘We went down +to see a friend of mine.’ I said, ‘Who is your friend?’ He said ‘A man +by the ---- they call him ‘Poppy.’ ‘Well,’ I said, ‘I want you, you are +under arrest.’” + +According to Connolly, Vanzetti, who had been sitting on the seat +nearest the window, put his hand in his hip pocket. The policeman had +shouted, “Keep your hands out on your lap, or you will be sorry!” When +the two defendants asked him why they were being arrested, he had told +them that they were “suspicious characters.” Vaughan then boarded the +car and Connolly ordered Vanzetti to stand up so that the latter could +“fish” him. He himself gave Sacco “a slight going over ... did not go +into his pockets.” + + Q. Was anything found on either man at that time? + + A. There was a revolver found on Vanzetti. + +The two suspects were then transferred to a police car which was +waiting alongside the tracks. Connolly “put Sacco and Vanzetti in the +back seat ... and Officer Snow got in the back seat with them. I took +the front seat with the driver, facing Sacco and Vanzetti.” During +the trip to the Brockton station house, Connolly noticed that Sacco +“reached his hand to put under his overcoat and I told him to keep +his hands outside of his clothes and on his lap.” When he asked the +defendant, “Have you got a gun there?,” the latter had replied, “No, I +ain’t got no gun.” Merle A. Spear, the driver of the car, swore that he +had heard this conversation and that Sacco had answered, “You need not +be afraid of me.” Later that evening, a Colt revolver had been found in +Sacco’s pocket. + +Chief Stewart had arrived at the police station shortly after eleven +o’clock that night. The two prisoners told him much the same story +that they had related to Connolly. They insisted that they had gone to +West Bridgewater to see a friend named Poppy but denied any knowledge +of Boda or Orciani’s motorcycle. Sacco thought that they had left his +house at 6:30 that day while Vanzetti was sure that they had started +out three hours earlier. Sacco claimed that he had purchased his Colt +in Hanover Street in Boston many months before his arrest. + +On June 22nd, after fifty-nine witnesses had testified for the +prosecution, Katzmann informed Judge Thayer that “We believe we have +nothing further to offer ... the Commonwealth rests, if your Honor +please.” Following Callahan’s opening statement, the defense promptly +called Frank J. Burke, the glassblower who had watched the Buick race +over the Pearl Street crossing after the murders. He had gotten a +good look at its passengers and he was certain that neither defendant +had been in the car. “I would say they were not,” he said. But on +cross-examination, Katzmann succeeded in showing that the witness had +such poor eyes that he had thought that Mr. Callahan’s Hudson in which +he had been driven to the courthouse that very morning was a Buick. + +Mrs. Barbara Liscomb, the Rice & Hutchins employee who had fainted when +one of the gunmen pointed his pistol at her, “would always remember his +face.” When she had been taken to the Brockton police station, she had +been unable to identify either defendant. + + Q. And you have looked at these men in the dock? + + A. I have. + + Q. Are either of the men in the dock the man you saw pointing the + revolver at your window? + + A. No, sir. + +She was “positively sure” that she had never seen either Sacco or +Vanzetti before. + +Jennie Novelli, a nurse, who, some ten minutes before the shooting, had +seen the Buick proceeding slowly up Pearl Street in the direction of +the Rice & Hutchins plant, said the man who had been sitting next to +the driver was not Sacco although she had previously told a detective +that a photograph of the defendant “resembled” the man she had seen in +the car. Albert Frantello insisted that the defendants were not the +men he had noticed leaning against the Rice & Hutchins fence before +the murders. None of the laborers at the restaurant excavation or the +railroad employees who had been repairing tracks at the Pearl Street +crossing could say that they had seen Sacco or Vanzetti in the vicinity +of the crime. In all, some two dozen eyewitnesses testified that they +had not seen either defendant in South Braintree on April 15, 1920. + +Vanzetti was the first of the two defendants to take the stand. As far +as the day of the murder was concerned, he insisted, in broken English, +that he had not left Plymouth. In the morning, he had been “selling +fish from a cart” on Castle and Cherry Streets. Some time during the +morning, he had asked Joseph Rosen, a peddler, to accompany him to the +home of Mrs. Alphonsine Brini so that she could look at a piece of +cloth which Rosen wanted to sell to him. Vanzetti thought that this had +taken place “near one o’clock, about half past eleven, something like +that, half past twelve, about one o’clock.” + +After he had sold all his fish, the defendant had visited Melvin +Corl, a friend of his, who was painting his boat. He had had a long +conversation with Corl--about an hour and a half--during which time he +had also talked to a boat builder by the name of Frank Jesse. Then he +had gone home, changed his clothes, and eaten his supper. He could not +remember what he had done after finishing his dinner. + +On May 5th, he had accompanied Boda to the Johnson home in order to +pick up the latter’s car which was to be used in collecting radical +literature from the homes of some of his friends “in five or six +places, five or six towns.” The mysterious death in New York, on May +3rd, of Andrea Salsedo, a radical with whom he had been associated +for many years, had convinced him that he should “get the books and +literature to put at some place and hide not to find by the police or +the state.” He had not told the police about his plans for that night +“because in that time there, there was the deportation and the reaction +was more vivid than now and more mad than now.” + +He readily admitted that he had lied to Stewart when the police chief +had questioned him after his arrest. “I was afraid,” he said, “he went +into the house of the people that they named and found some literature +or paper and arrested the men ... I was scared to give the names and +addresses of my friends as I knew that almost all of them have some +books and some newspapers in their house by which the authorities +take a reason for arresting them and deport them.” His fears had been +aggravated by the fact that Officers Connolly and Vaughan had refused +to tell him why he was being taken into custody. + + Q. What did they say what you were arrested for? + + A. They say, ‘Oh, you know, you know why.’ And when I try to sleep in + the cell, there is no blanket, only the wood. Then we called for the + blanket, because it was rather cool. They say, ‘Never mind, you catch + warm by and by, and tomorrow morning we put you in a line in the hall + between the chairs and we shoot you.’ + +In fact, during the night, one of his jailers had spit in his face and +threatened him with a revolver. + +Vanzetti also conceded that he had lied to Katzmann when the District +Attorney had questioned him about the price he had paid for his +revolver, the number of times he had visited Boston overnight, and his +acquaintance with Boda. Again he based his reluctance to tell the truth +on his desire to shield his friends. “I intend to not mention the name +and house of my friends” he explained. + +Joseph Rosen testified that he had sold Vanzetti several pieces of +cloth at noon on April 15th. Mrs. Brini remembered that she had seen +the defendant selling fish that morning and that he and Rosen had come +to her house to get her opinion as to the worth of some swatches of +material. Her daughter, LeFavre, had also seen the fish peddler on both +occasions. At noon, Angel T. Guidobone, a rug worker, had purchased +some codfish from Vanzetti. Melvin Corl recalled that the defendant had +visited him when he was painting his boat, and Frank Jesse stated that +he had talked to Vanzetti about an automobile while they were watching +Corl at work. + +Sacco confirmed Vanzetti’s testimony that both men had told falsehoods +because they were afraid that they had been arrested for their radical +activities. Since the police had not informed them of the nature of +the charges against them, he had been convinced that he and Vanzetti +had been picked up because they had been working “for the movement for +the working class, for the laboring class.” In fact, one of the first +things Stewart had asked him was whether he was a Socialist. + + Q. When he asked you what you were in Bridgewater for, did you give + him a true reason for being there? + + A. No, sir, because I was afraid to arrest us, they arrest somebody + else of the people.... + +Like Vanzetti, he freely admitted that he was a Socialist who did not +believe in war. After the United States entered the war in 1917, both +he and his co-defendant had run away to Mexico to avoid the draft. +Sacco had returned to Massachusetts several months later under an alias +and had not resumed his real name until after the war ended. As he put +it, “What right do we have to kill each other? I don’t believe in no +war. I want to destroy those guns.” He loved his adopted country, but +his hatred of war was greater than his devotion to an abstraction. + +As far as April 15th was concerned, he maintained that he had spent the +entire day in Boston. In the middle of March, he had received a letter +informing him that his mother had died in Italy. He had decided to take +his family back to the old country and had gone to Boston on the day of +the murders to have his passport validated at the Italian Consulate. He +had taken the 8:56 train from Stoughton and, after arriving at South +Station, had walked to Hanover Street where he had met Angelo Monello, +a Roxbury contractor. Then he had gone to Boni’s Restaurant for lunch +with Felice Guadagni, the editor of an Italian journal. The two men +were later joined by John D. Williams, a space salesman for several +foreign-language newspapers, and Albert Bosco, a _La Notizia_ editor. + +Sacco had left Boni’s at 1:30 and gone to the consulate. He was told +by some man there that the photograph he had brought was much too +big to fit on a passport. Then he had dropped in at a nearby coffee +house where he had again met Guadagni and Antonio Dentamore, a former +newspaperman. At 3:20, after buying some groceries at a nearby store, +he had paid a debt of fifteen dollars to a man named Affe. Then, he had +caught the 4:12 train back to Stoughton, arriving home shortly after +six o’clock. + +Katzmann was remorseless in his cross-examination. Why hadn’t the +defendant gone to the consulate in the morning and taken the noon +train back to Stoughton? “Well, I think to pass all day when I been in +Boston,” was the reply. Hadn’t he lied to George Kelley, his foreman, +when he had told him “that there was such a crowd in there you could +not get your passport and the place closed and you missed the noon +train for that reason?” Yes, he had lied to Mr. Kelley. He also hadn’t +told the truth at Brockton when he claimed that he had worked on the +fifteenth. “I was not sure,” he explained, “There was not interest to +me very close to find out the date I have been out.” + +A bevy of witnesses paraded to the stand to buttress Sacco’s alibi. +Dominick Ricci said that he had seen the shoemaker early on the morning +of the fifteenth at the Stoughton railroad station. At eleven a.m., +Angelo Monello had passed the time of day with him in East Boston. +Guadagni, Williams and Bosco verified the lunch at Boni’s. According +to an affidavit submitted by Guiseppe Andrower, the former passport +officer at the Italian consulate, Sacco had come to his window at +two p.m. and shown him a photograph which the official had said was +too large for a passport. “April 15th, 1920, was a very quiet day,” +he swore, “and since such a large photograph had never been before +presented for use on a passport, I took it in and showed it to the +Secretary of the Consulate. We laughed and talked over the incident.” + +At 2:45, at Giordani’s coffee house, the defendant had complained to +Dentamore that he would have to go to the expense of having another +picture taken for his passport. Carlos M. Affe remembered that Sacco +had dropped in at his grocery store between three and four o’clock to +pay an outstanding bill of $15.50. Mrs. Sacco, who testified through +an interpreter, knew that her husband had gone to Boston on the 15th +because that was the day she had been visited by Henry Iacovelli, a +friend from Milford. Mr. Iacovelli confirmed that he had indeed called +at the Sacco home that day. + +As for their guns, each defendant had an explanation. Vanzetti claimed +that he had bought his for five dollars from a friend named Luigi +Falzini in early 1920 because “it was a very bad time and I like to +have a revolver for self defense.” + + Q. What do you mean ‘It was a bad time?’ + + A. Bad time, I mean it was many crimes, many holdups, many robberies. + +Sacco maintained that he had gotten into the habit of carrying a gun +when he had worked as a night watchman at the 3-K Shoe Factory. On the +day he was arrested, he and Vanzetti had planned “to go to shoot in +the woods” but had not done so because “we started an argument and I +forgot....” + +On July 14th, after Judge Thayer had delivered his charge from a +flower-bedecked bench, the jury retired. Some seven hours later, it +filed back into the courtroom. When Clerk Worthington asked if it had +reached a verdict, Foreman Walter R. Ripley announced that it had. He +and his colleagues had found each defendant guilty of murder in the +first degree. Thayer was happy to express the Commonwealth’s gratitude +for “the service that you have rendered. You may now go to your homes, +from which you have been absent for nearly seven weeks.” As the twelve +men hurried to take his Honor’s welcome advice, Sacco shouted, “They +kill an innocent man! They kill two innocent men!” + +His prophecy was somewhat premature. On November 5th, a motion for a +new trial on the ground that the verdict was against the weight of +evidence was argued before Thayer. It was denied on the day before +Christmas. As far as the judge was concerned, he would not “announce +to the world that these twelve jurors violated the sanctity of their +oaths, threw to the four winds of bias and prejudice their honor, +judgment, reason and conscience, and thereby abused the solemn trust +reposed in them by the law as well as the Court.” If any errors had +been committed during the trial, no one would be happier than he if the +Supreme Judicial Court corrected them. “But until that time comes,” he +said, “so far as these motions are concerned, the verdicts of the jury +must stand.” + +Before Thayer’s decision, Jeremiah McAnarney had learned that, during +the trial, Foreman Ripley had exhibited some .38-caliber cartridges to +other members of the jury. Unfortunately, Ripley died before the lawyer +could obtain a statement from him. However, two of his fellow jurors +admitted that they had seen the bullets and, on the strength of this, +the defense attorneys filed the first of six supplementary motions for +a new trial. In their briefs, they argued that it was improper for the +jurors to have considered any but legitimate exhibits. + +To buttress their position that Ripley was hopelessly prejudiced +against the defendants, their lawyers submitted an affidavit by William +H. Daly, a good friend of the ex-foreman, who stated that he had run +into him at a railroad station several days before the trial. When Daly +had expressed some doubt as to whether Sacco and Vanzetti were guilty, +Ripley had replied, “Damn them, they ought to hang them anyway.” The +prosecution offered no evidence to contradict the Daly affidavit. + +In early October of 1921, Frank J. Burke, the glassblower who had +testified for the defense, ran into Roy E. Gould in Portland, Maine. +The razor paste peddler had never been called as a witness despite the +fact that he had given his name to the police. When the black Buick had +driven by him, he had gotten a good look at its occupants. According +to his sworn statement, which Moore used as the basis of his second +supplementary motion, “the man that he saw at South Braintree on April +15, 1920, at or about the hour of three o’clock in the afternoon, +riding in the bandit car, front seat, on the right-hand side of the +driver, is not the man that he saw in the Dedham County Jail, and +who was pointed out to him as Nicola Sacco.” As far as Vanzetti was +concerned, he had seen photographs of the condemned man and “he in no +sense resembles the man affiant saw at South Braintree on April 15th, +1920.” + +On February 4, 1922, Lewis Pelser admitted in writing to Moore that he +had perjured himself at the trial. His original statement to a defense +investigator that he hadn’t seen anyone in the bandits’ car because he +had been huddling under his workbench was, he now admitted, the true +story. Pelser’s retraction was made part of the Gould motion. However, +several days later, he wrote a letter to Katzmann in which he claimed +that he had been drinking “pretty heavy” when Moore interviewed him. +“He asked me one question and other,” he wrote, “and finally had my +whole story contradicted what I had said at the Dedham Court.” He had +decided to write to the District Attorney because he was “worried at +the way they have framed me up and got me into trouble.” + +Moore’s third motion was based on the fact that Carlos Goodridge, the +Victrola salesman who had rushed out of Magazu’s poolroom just as the +Buick drove by, had not used his right name at the trial. Furthermore, +the lawyer alleged that Goodridge had twice been convicted of theft +in New York and that, when he testified, he was a fugitive from a +third indictment. In opposing Moore’s motion, Katzmann introduced +an affidavit from the salesman, admitting most of the defense’s +contentions, but insisting that his testimony had been accurate. + +On September 11, 1922, Moore filed a fourth motion. Two days earlier, +Lola Andrews had signed an affidavit in which she repudiated the +testimony she had given at Dedham, claiming that she had been coerced +by the District Attorney and the police. Now, she was prepared to state +that “each and every part of her testimony ... wherein she identified +the said Nicola Sacco as the person that she had seen on April 15, +1920, is false and untrue.” To the best of her knowledge, she had never +seen the defendant until he was pointed out to her in the Dedham County +Jail. + +Four months later, Mrs. Andrews retracted this repudiation. She told +Katzmann that Moore and his associates had threatened to prosecute her +and her son if she did not sign a statement which indicated “that I had +told a lie, that I did not at any time see Sacco at South Braintree.” +She would never have signed the paper if her son hadn’t put his arm +around her and said, “Mother, sign this paper and have an end to all +this trouble, for you did not recognize these men, and you will be +doing a terrible wrong if you send those men to the chair.” She now +maintained that she had told the truth at Dedham. + +In April of 1923, Albert H. Hamilton, a well-known criminologist, +who had testified in more than 165 murder trials, examined all the +exhibits in the case. He came to the conclusion that the fatal bullet +had not been fired from Sacco’s gun. He was supported in his thesis by +a member of the faculty of the Massachusetts Institute of Technology. +In opposing this motion--the defense’s fifth--Katzmann submitted +affidavits by several arms experts, disputing Hamilton’s claims. + +As an adjunct to the Hamilton motion, William G. Thompson, who had +come into the case in 1923, filed an affidavit by William H. Proctor. +Captain Proctor, who had testified for the Commonwealth that Bullet +III was “consistent with” having been fired from Sacco’s pistol, now +explained that he had meant to say only that it was “fired from a Colt +automatic pistol of .32-caliber.” He insisted that he had “repeatedly” +told Katzmann that he could not swear that the “so-called mortal bullet +... passed through Sacco’s pistol.” “Had I been asked the direct +question,” he stated, “whether I had found any affirmative evidence +whatsoever that this ... bullet had passed through this particular +Sacco’s pistol, I should have answered then, as I do now without +hesitation, in the negative.” + +After hearing argument on all these motions, Thayer denied each one on +October 1, 1924. He did not feel that the “mere production” of Ripley’s +cartridges in the jury room had in any way prejudiced the defendants +and, besides, he was unwilling to “blacken the memory” of the dead +juror. As far as Gould was concerned, he was convinced that the razor +paste salesman must have been mistaken. He disposed of the Pelser +retraction by blaming it on an excess of liquor. The motion attacking +Goodridge’s veracity because of a previous criminal record was a “bold +and cruel attempt to sandbag Goodridge by threatening actual arrest” +which he could only attribute to Mr. Moore’s “over-enthusiastic +interest in his client’s cause.” Lastly, Mrs. Andrews’ repudiation had +been procured by duress, Hamilton’s opinion was unconvincing, and, if +Captain Proctor had really believed that the fatal bullet did not come +from Sacco’s gun, he had had ample opportunity at the trial to make +himself clear. + +After Judge Thayer’s decision, all of the defense attorneys except +Thompson withdrew from the case. On May 12, 1926, the five-judge +Supreme Judicial Court of Massachusetts, in a sixty-page opinion, +affirmed the trial judge’s denial of the various motions. Two weeks +later, Thompson filed another application for a new trial, this time +based on the admission by one Celestino F. Medeiros, a convicted +murderer, who had sent a note to Sacco in jail in which he confessed +that he had participated “in the South Braintree shoe company crime and +Sacco and Vanzetti was not in said crime.” + +Although Medeiros would not name the men who had been associated with +him in the Slater & Morrill holdup, he was willing to reveal every +other aspect of the crime. He had met the four other members of the +gang in a Providence saloon and they had driven to Randolph in a +Hudson which they exchanged for a Buick in some woods outside of +town. Then they proceeded to South Braintree, killed Parmenter and +Berardelli, and drove back to the woods where they abandoned the Buick +and raced back to Providence in the Hudson. Medeiros’ role during the +holdup was to sit in the rear of the Buick with a gun and “help hold +back the crowd in case they made a rush.” + +Despite all of Thompson’s astuteness, Medeiros would not name any +names. The most the lawyer could get from him was the fact that the +gang had been composed of Italians who “had been engaged in robbing +freight cars in Providence.” At the time of the South Braintree +murders, a group of criminals known as the Morelli gang had been +hijacking freight cars throughout New England. In fact, on April 15, +1920, several of its members were out on bail awaiting trial for +stealing shoes which had been consigned by both Slater & Morrill and +Rice & Hutchins. Medeiros’ descriptions of his confederates fitted the +known members of the Morelli group. + +Although Felix Frankfurter was convinced that Medeiros, who maintained +that he had confessed because “I seen Sacco’s wife come up here with +the kids and I felt sorry for the kids,” was telling the truth, Judge +Thayer felt otherwise. As far as he was concerned, Medeiros was +unworthy of belief because he was “a crook, a thief, a robber, a liar, +a rum-runner, a ‘bouncer’ in a house of ill-fame, a smuggler, and a +man who has been convicted and sentenced to death for ... murder.” If +Medeiros was so eager to save two men whom he claimed were innocent, +why didn’t he reveal the names of the other men who had supposedly +participated in the Slater & Morrill caper? Furthermore, he felt that +Medeiros’ haziness as to certain details of the crime clearly indicated +that he had not been there. + +On April 5, 1927, Thayer’s denial was affirmed by the appellate +court. Four days later, the two defendants were brought before him +for sentencing. After both men had made statements affirming their +innocence, Thayer ordered that they “suffer the punishment of death by +the passage of a current of electricity through your body within the +week beginning on Sunday, the tenth day of July, in the year of our +Lord, one thousand, nine hundred and twenty-seven.” As the judge was +intoning the death sentence, Sacco interrupted to shout, “You know I +am innocent. That is the same words I pronounced seven years ago. You +condemn two innocent men.” + +On May 3rd, Vanzetti wrote to Governor Alvan T. Fuller, on behalf +of Sacco and himself, requesting clemency. Fuller’s response was to +appoint an Advisory Committee composed of President Abbott Lawrence +Lowell of Harvard, President Samuel W. Stratton of M. I. T. and Probate +Judge Robert Grant, to investigate the evidence against the condemned +men. Because the three-week hearing didn’t begin until July 1st, the +executions were postponed for one month. On July 27th, the committee’s +members reported to the governor that they had “seen no evidence +sufficient to make them believe that the trial was unfair.” One week +later, Fuller stated that he had found “no sufficient justification +for executive intervention.” “I believe with the jury,” he said, “that +these men, Sacco and Vanzetti, were guilty and that they had a fair +trial.” + +Since the executions were scheduled for August 10th, a variety of +petitions and motions were filed with everyone from Judge Thayer to +Mr. Justice Oliver Wendell Holmes, all without success. In order to +give the defense time to appeal several of these denials to the Supreme +Judicial Court, Fuller granted a reprieve until August 22nd. Two days +earlier, petitions for certiorari were filed with the clerk of the +United States Supreme Court but Justices Holmes, Brandeis, Stone and +Taft refused to halt the executions. As Holmes put it, “I cannot say +that I have a doubt and therefore I must deny the stay.” + +At 12:19 on the morning of August 23, 1927, Sacco died in the electric +chair at Charlestown State Prison. Seven minutes later, he was joined +in death by his friend Vanzetti who wished “to forgive some people for +what they are doing to me.” Perhaps the several thousand people who +milled around the prison that torrid August night could take some small +measure of comfort from Vanzetti’s remarks to a newspaper reporter on +the seventh anniversary of the South Braintree shooting: “If it had +not been for these things, I might have lived out my life, talking at +street corners to scorning men. I might have died, unmarked, unknown, a +failure. Now, we are not a failure. This is our career and our triumph. +Never in our full life can we hope to do such work for tolerance, for +justice, for man’s understanding of man, as now we do by an accident. +Our words, our lives, our plans, nothing! The taking of our lives, +lives of a good shoemaker and a poor fish peddler--all. That last +moment belongs to us. That agony is our triumph.” + + + + +5 + +_He Defied the Bible_ + +The State of Tennessee + +_versus_ + +John Thomas Scopes + + +Macon County was, in 1925, one of Tennessee’s most rural areas. Without +a single mile of railroad track, its almost unbroken stretches of +farmland were tilled by a God-fearing, Bible-reading population whose +sole contact with the outside world consisted of weekly visits to +LaFayette, the tiny county seat. Its representative in the lower house +of the state legislature was one John Washington Butler, a combination +farmer-school teacher, who worked 120 acres just outside of LaFayette. + +Butler had first run for election in 1922 on a platform that stressed +the need for a law prohibiting the teaching of evolution in the public +schools of Tennessee. During his first term, he was evidently much too +engrossed with finding his way around Nashville to do any legislating, +but he assured his constituents that, if they sent him back for a +second stint, he would find the time to push an anti-evolution bill. +The good people of Macon County believed him and, in November of 1924, +he was resoundingly reëlected to the House of Representatives. + +When he returned to the capital the following January, he lost no time +in living up to his campaign promise. He drafted a statute that would +make it unlawful for any public school teacher “to teach any theory +that denies the story of the Divine Creation of man as taught in the +Bible, and to teach instead that man has descended from a lower order +of animals.” The penalty was a fine ranging between one hundred and +five hundred dollars. Butler threw his bill into the legislative +hopper, saw that it reached the floor of the House, and then promptly +washed his hands of it. + +By all odds, the proposed legislation should have died aborning. But +with surprisingly strong Baptist support, it carried the lower house +on January 28, 1925 by a vote of 71 to 5. The next day, Williams +Jennings Bryan, who had been fighting Darwinism up and down rural +America, roared into Nashville with his rhetorical “Is the Bible True?” +harangue. Every word of it was, he assured his enthusiastic audience, +some of whom were so carried away by his oratory that they printed his +speech and sent it to each member of the legislature. Six weeks later, +the Butler Act skipped handily through the Senate by a vote of 24 to +6. On March 21st, a skeptical Governor Austin Peay signed it into law +because he was convinced that it would never be “an active statute.” He +couldn’t have been more mistaken. + +Up in New York, Roger Baldwin, the director of the struggling American +Civil Liberties Union, read a report of the new statute in a Tennessee +newspaper. He sent a press release to the Memphis, Chattanooga and +Knoxville papers, announcing that the ACLU would gladly finance a test +case against the Butler Act if only it could find a Tennessee teacher +with enough gumption to violate the law. A month later, a mining +engineer named George W. Rappelyea, who managed the Dayton mines of the +Cumberland Coal and Iron Company, informed Baldwin that he was in a +position to arrange a test case. His offer was promptly accepted. + +Rappelyea, who had been raised on New York’s Third Avenue, was, in the +words of one observer, “an untidy little person with rather ill-tended +teeth.” But, from behind his horn-rimmed spectacles, he looked out at +the word with alert, questioning eyes and the ACLU’s challenge was more +than he could resist. On May 5th, with Baldwin’s offer of financial +support in his pocket, he headed downtown to F. E. Robinson’s drugstore +where he promptly became involved with three members of the Dayton bar +in an argument over the constitutionality of the Butler Act. + +At this fortuitous moment, John Thomas Scopes, a twenty-four-year-old +graduate of the University of Kentucky, who had been doubling as +science teacher and football coach at Dayton’s Central High School, +came into Robinson’s for his usual afternoon soda. Here, in this +bespectacled, towheaded biologist, whose father was, according to +Clarence Darrow, a man who “brought up his family to have their own +opinions and to stand by them,” Rappelyea saw his chance to make good +on his rash promise to the ACLU. It took the rest of the afternoon to +persuade Scopes to go along with the idea but, before the drugstore +conclave broke up that evening, Rappelyea was able to telegraph the +ACLU that he had found his prospective defendant. The next morning, +he received a wire from New York: “We will cooperate Scopes case with +financial help, legal advice and publicity.” The State of Tennessee +_versus_ John Thomas Scopes was under way. + +Rappelyea didn’t waste any time. As soon as Scopes had consented to +be his guinea pig, he headed for the sheriff’s office where he swore +out a warrant for the young teacher’s arrest. A deputy was sent to +Robinson’s drugstore where, after waiting patiently for Scopes to +finish his third soda for the day, he arrested him. On May 10th, three +Dayton magistrates decided that there was enough evidence that Scopes +had been teaching his students the theory of evolution to hold him for +the action of the Rhea County Grand Jury which was scheduled to convene +early in August. Bail was set at $1000 and it was promptly posted by +the ACLU. + +To the merchants of Dayton, the impending trial was a bonanza of no +mean proportions. It was sure to fill Main Street with thousands of +curiosity seekers who could be counted on to leave many a sawbuck +behind them. But more than that, if Dayton was ever to get on the +map, this was its main chance. For years it had been going downhill +as Chattanooga, its neighbor to the southwest, had grown by leaps and +bounds. With a monkey matched against the Bible in the newly painted +brick courthouse that sat on a two-acre plot off Market Street, there +was no telling what might be in store for the town. + +But there was one disturbing cloud on the horizon. The possibilities of +a wide-open anti-evolution trial had not been lost on Chattanoogans who +began to press the city’s official family to get the jump on Dayton. +Judge John T. Raulston, of the Eighteenth Circuit Court, who was +slated to preside at the Scopes trial, spiked that one by calling a +special session of the grand jury on May 25th. After Rappelyea had been +replaced by Walter White, the Rhea County superintendent of schools, as +the complaining witness, the thirteen jurors took less than an hour to +indict Scopes whose trial was then set for Friday, July 10th. Raulston +had saved the day for the Main Street merchants who promptly organized +eager committees to scrub and paint the town into a brightness it +hadn’t known since Peter Donaldson’s blast furnace had failed in 1913. +As one reporter put it, “Dayton was determined to be ready for its +fame.” + +In Darrow’s opinion, “the little town of Dayton, Tenn., had never +been heard of very far away from home.” The seat of Rhea County, it +was a prosperous village of some two thousand residents, most of whom +were gainfully employed by the four or five factories and mills that +punctuated its outskirts. Every Saturday afternoon, the Cumberland +Mountain farmers flocked into town to spend the money their wheat, +tobacco and strawberry crops had earned for them. They would park their +open Model-T Fords on the unpaved side streets and, after a snack at +the Hotel Aqua, wander in and out of the shops that filled the brick +and wooden buildings on Main and Market Streets. On Sunday morning, +almost the entire community could be found in the nine churches whose +spires gave Dayton the nearest thing to a skyline it would ever have. + +However, the town was far from a hotbed of religious fanatics. +Although theology was always a lively subject on its shady street +corners, the average Daytonian was not one to lose his head over +sacerdotal differences of opinion. But its ministers didn’t share their +parishioners’ equanimity on matters spiritual. Convinced, publicly at +least, that “the Holy Bible contains and is itself the fountain of true +wisdom,” they set about raising funds which they hoped to donate to +the prosecution staff to offset the thousand-dollar fees which, rumor +had it, the ACLU was dangling before the eager noses of local lawyers. +Scopes and any other evolutionist had to be shown that anyone who +taught “our children any theory which has as its purpose or tendency +the discrediting of our religion” would be promptly punished. If the +Reverend L. M. Cartwright and his cohorts couldn’t disprove Darwin’s +hypothesis, they could certainly discourage its converts. + +When Scopes was first arrested, he had retained John Randolph Neal, +a former law professor at the University of Tennessee, who had just +opened a law school in Knoxville. Neal, despite his reputation for +eccentricity, was astute enough to recognize that he lacked the trial +experience that Scopes’ defense demanded. Originally, he was convinced +that John W. Davis was the right man to represent the young teacher +but, when Clarence Darrow volunteered his services, Neal realized +that the man and the case had met. “For the first, the last, and the +only time in my life,” Darrow later told a friend, “I volunteered my +services in a case. I did this because I really wanted to take part in +it.” + +What undoubtedly motivated Darrow to take this unprecedented--and, +as it turned out, extremely expensive step--was the fact that, on +May 13th, William Jennings Bryan, the thrice-defeated Democratic +candidate for the Presidency, had announced in Pittsburgh that he +would, Tennessee officialdom willing, represent the World’s Christian +Fundamentals Association in the case. Bryan, who was at the time a +vociferous hawker for Florida real estate, was, in Darrow’s opinion, +“the logical man to prosecute the case.” He had sparked the passage of +anti-evolution statutes in several Bible Belt states and was the leader +of the American fundamentalist movement. Two years earlier, he and +Darrow had clashed in the pages of the _Chicago Tribune_ over what the +Chicagoan considered the former’s attempts “to shut out the teaching of +science from the public schools.” A Dayton booster could hardly have +asked for a better cast. + +On the evening of July 9th, Darrow arrived in a Dayton that looked +as if it were expecting a revival meeting rather than a criminal +prosecution. As he drove from the railroad station, he passed under +signs that admonished him to “Come to Jesus” and “Prepare to Meet Thy +Maker.” The town was bedecked with flags and bunting while sidewalk +refreshment stands, with monkey posters pasted on their sides, lined +both sides of Main Street. Two tame chimpanzees in a store window were +entertaining the curious crowds which had been flocking into town +for more than a week. Newspapermen, radio operators, photographers, +farmers, telegraphers, preachers, beggars, tourists and unemployed +coal miners--they all thronged into Dayton in such hordes that every +available bed had been spoken for weeks before the trial was scheduled +to get underway. If nothing else, the big show, which H. L. Mencken had +already dubbed the Monkey Trial, was sure to have an audience which +would be as huge as it was diverse. + +Darrow’s first night in Dayton was spent in The Mansion, an abandoned +plantation on the outskirts of town that Rappelyea, in a burst of +sudden inspiration, had reopened for the occasion. But a man used +to the conveniences of Chicago was not one to camp more than twelve +hours in a house that lacked running water and the lawyer spent the +rest of the trial in the home of one of the local bankers. Bryan, who +had arrived two days before, was quartered at a private home from +which he sallied forth to address, in quick succession, the Dayton +Progressive Club, the Rhea County Board of Education, and the Methodist +Episcopal Church South. In between, when he could tear himself away +from the prodigious meals his hosts insisted on serving him, he posed +for pictures with John Washington Butler, Judge Raulston, and every +minister in town. + +Friday, the tenth, dawned hot and humid. When Darrow arrived at the +courthouse, he passed under a sign that proclaimed in large letters, +“Read Your Bible.” He walked up the rather steep stairs that led to the +second-floor courtroom where Raulston, who liked to refer to himself +as “jist a reg’lar mountin’eer jedge,” was already ensconced behind +his newly painted bench. Darrow pushed his way slowly through the +perspiring crowd that blocked every aisle in the courtroom. As he sank +into the one vacant chair at the defense table, he nodded to Arthur +Garfield Hays, Dudley Field Malone and John Randolph Neal, who were +there to assist him. Across the way, at the prosecution table, sat +Bryan, his son, William, Junior, and five Tennessee lawyers of varying +shapes and sizes. After the Reverend Mr. Cartwright had reminded +everyone to look to God for “that wisdom to so transact the business of +this court in such a way and manner as that Thy name may be honored and +glorified among men,” things were off and running. + +But first a little repair work was necessary. The special grand jury +that had originally indicted Scopes had been assembled so hurriedly +that there was some doubt as to its legality. Raulston promptly swore +in a new panel and began to read the Butler Act to it. Then he picked +up his well-thumbed copy of the Bible and, in a voice that would have +delighted Billy Graham, intoned the first twenty-seven sections of +Genesis, pausing significantly at those portions which insisted that +“God created man in His own image.” Three of Scopes’ students then told +the thirteen bumpkins in the jury box that he had taught his classes +all about evolution from George William Hunter’s _Civic Biology_. +In less than an hour, the defendant was properly charged and the +prosecution was back on the rails. + +The first order of business was the selection of the jury. There wasn’t +much to choose from since only nineteen talesmen had shown up that +morning. Darrow, who prided himself on his painstaking care in picking +a panel, didn’t waste much time with the bemused farmers who shuffled +into the jury box and waited patiently for the agnostic from Chicago +to question them as to their qualifications. By 1:30 p.m. the jury was +complete. Of its eleven members who attended church regularly, six +were Baptists, four Methodists and one an adherent of the Disciples of +Christ. The single backslider said that he perused the Bible from time +to time, but not “like I ought to.” At least one--a former miner named +Jim Riley--admitted he could not read but, since both sides apparently +considered illiteracy an asset, he was promptly waved into the jury +box. As the twelfth man--S. S. Wright--took his seat, Raulston, who was +obviously in no hurry to rush the trial along, announced that court +would adjourn for the weekend. + +On Monday, things began in earnest. After A. T. Stewart, the Attorney +General for the Eighteenth Judicial Circuit, had read the indictment +to the jury, Neal immediately moved to dismiss it on the ground that +it violated both the state and federal constitutions. Raulston thought +that the legal arguments on these points might be too heady for his +back country jury--which had not yet been sworn in--and he excused its +members who promptly repaired to the courthouse lawn where they eagerly +listened to the proceedings over the loudspeakers. After the lesser +lights on both sides of the fence had used up the morning in forensic +fireworks, a now coatless Darrow, who had just been dubbed a Tennessee +colonel by Raulston, began his attack on the constitutionality of the +Butler Act. + +After assuring the judge that he would “always remember that this Court +is the first one that ever gave me the great title of ‘Colonel,’” he +got down to the business at hand. First of all, he turned to face +Bryan, who was busy cooling himself with a palm fan, and declared that +the Great Commoner was the one “who is responsible for this foolish, +mischievous and wicked act.” Then he spent the rest of the afternoon +ripping into the anti-evolution law which he classified as “as bold an +attempt to destroy learning as was ever made in the Middle Ages.” He +had just gotten up a full head of steam when Raulston interrupted him +to announce that it was “adjourning time.” This pronouncement didn’t +seem to carry much weight with Darrow who swept on to his climax: + + Today it is the public-school teachers, tomorrow the private. The next + day the preachers and the lecturers, the magazines, the books, the + newspapers. After a while, your Honor it is the setting of man against + man and creed against creed until, with flying banners, and beating + drums, we are marching backward to the glorious ages of the sixteenth + century when bigots lighted fagots to burn the men who dared to bring + any intelligence and enlightenment and culture to the human mind. + +As he sat down, he noticed for the first time that, in his excitement, +he had ripped one of his shirt sleeves. + +The next morning--Tuesday, July 14th--he stormed back into the +courtroom and shook Raulston to his back teeth by demanding that the +practice of opening court with a prayer be abandoned. “I don’t object +to the jury or anyone else praying in secret or in private,” he argued, +“but I do object to the turning of this courtroom into a meetinghouse +in the trial of this case. This case is a conflict between science and +religion and no attempt should be made by means of prayer to influence +the deliberation and consideration by the jury of the facts in this +case.” After Raulston had recovered his equilibrium, he informed Darrow +that it had “been my custom since I have been a judge to have prayers +in the courtroom when it was convenient, and I know of no reason why I +should not follow up this custom, so I will overrule the objection.” +As a compromise, he asked New York’s Reverend Charles Francis Potter, +who had come to Dayton as a witness for the defense, to lead the next +day’s prayer. + +Raulston spent the rest of the day working on the opinion which would +accompany his decision on the motion to dismiss the indictment. +However, at the very moment he was dictating it to his stenographer, +the International News Service had informed its subscribers that the +defense motion would be denied. The judge, furious at being upstaged, +appointed a committee of newspapermen, headed by Richard Beamish of +the _Philadelphia Inquirer_, to investigate the leak. The committee’s +report was as simple as it was conclusive. It seemed that William K. +Hutchison, an INS reporter, had asked Raulston whether court would be +adjourned to the next day after the opinion was read. When the judge +replied that it would, Hutchison guessed that the motion had been +denied and released a story to that effect. Raulston decided to let the +matter drop with a warning to the newsmen not to “ask me any questions +without putting me on notice what it is about.” + +On Wednesday morning, he confirmed Hutchison’s accurate guesswork and +announced that he would not quash the indictment. His reasons were +simple--no one was forced to teach in the public schools and, if any +teacher’s conscience was troubled by having to hew to the letter of the +Butler Act, he could resign and teach in a private institution. Why, +if this law wasn’t constitutional, the Holy Writ itself was suspect! +He raced through his 6000-word opinion in a little more than an hour, +pausing only to wipe the perspiration from his face with a large +scarlet handkerchief. When he had finished, the courthouse clock read +11:13 and he promptly adjourned for lunch. + +That afternoon, Foreman Jack R. Thompson, a former United States +Marshal, led his fellow jurors back into the box and, at long last, +they were sworn in. Their first official act was to request, through +their foreman, that the judge “take up the matter of some electric fans +here.” Unfortunately, the depleted state of the county treasury would +not permit such an extravagance, but Raulston graciously consented to +“divide my fan,” and it was placed on an oblique with the jury box. He +also suggested that a foraging squad be sent out to see what could be +done about “borrowing” a fan or two in town. + +The first witness for Bryan & Company was Walter White, the county +superintendent of schools, who had signed the second complaint against +Scopes. He said that the defendant had admitted to him back in May +that he had used Hunter’s _Civic Biology_ in class and that it was +absolutely impossible to teach from it without presenting Darwin’s +theory. As for the Butler Act, Scopes had told White that “the law was +unconstitutional anyway.” Yet, despite the threat the text posed to the +impressionable minds of Tennessee’s small fry, it had been used in the +state’s school system since 1909 and had been officially adopted by the +School Book Commission as late as 1924. In fact, it could be purchased +in Dayton from the now celebrated drug store of F. E. Robinson who, +in addition to his pharmaceutical pursuits, was the president of the +county board of education. When Darrow asked the witness if he had ever +warned any teacher about the book’s evil contents, or if anyone had +ever complained to him about them, the answer to the question was a +drawled “No, Sir.” + +When White stepped down from glory, he was followed by +fourteen-year-old Howard Morgan, the son of Luke Morgan of the Dayton +Bank & Trust Company, to whose house Darrow and his wife, Ruby, had +fled after one night’s experience with The Mansion’s inactive plumbing. +Young Howard was one of Scopes’ students. According to him, the +defendant had insisted that “the earth was once a hot molten mass, too +hot for plant or animal life to exist upon it; in the sea the earth +cooled off; there was a little germ of one-cell organism formed and +this organism kept on evolving until it got to be a pretty good-sized +animal and then came on to be a land animal, and it kept on evolving, +and from this was man, and that man was just another mammal.” + +Morgan looked disappointed when Stewart looked over at Darrow and +purred, “Your witness, Colonel.” Under the Chicagoan’s gentle +questioning, the boy admitted that Scopes had never said that “a +cat was the same as a man.” On the contrary, “he said that man had +reasoning power; that these animals did not.” After observing that +he wasn’t as sure as Scopes about that, Darrow asked the witness +whether he could remember anything else of a salacious nature that the +defendant had taught him. He could not. + +Seventeen-year-old Harry Shelton backed up his classmate’s story. +Yes, Scopes had indeed said that man was descended from a lower order +of animals. But what he had learned hadn’t had any adverse effect on +him. He still went to church regularly, just as he had before he was +told that “all life comes from a single cell.” Darrow, who looked +quite satisfied with the way things were going, asked Harry, “Did Mr. +Scopes teach you that man came from the monkey?” As the boy opened +his mouth to answer the question, there was a horrendous shriek from +the direction of the courthouse lawn. A chimpanzee, which had been +brought from New York as a publicity stunt; had just been struck by a +rock propelled by the elastic band in the slingshot of a small boy who +quite obviously had little respect for his ancestors. Harry Shelton’s +answer to Darrow’s question was never to be recorded by the thoroughly +distracted court stenographer. + +It had been in F. E. Robinson’s emporium that what Scopes called “just +a drugstore discussion that got past control” had started all the +hullabaloo. Robinson, who presided over the county school board, had +been present while Rappelyea was trying to convince Scopes to throw +himself in the path of the anti-evolution law. Yes, he had heard the +defendant state that he had been teaching Darwin’s theory to his +biology class. In fact, John Thomas had gone even further and said that +it was impossible to teach the subject from any of the available books +without violating the Butler Act. + +But Robinson, whose drugstore sold everything from sassafras to hickory +chips, also purveyed Hunter’s _Civic Biology_. Darrow reminded him that +he might be talking himself into a criminal prosecution but, as Stewart +informed Raulston, “the law says ‘teach’, not sell.” They were still +laughing at that one in the back rows when Robinson proudly admitted +that he had a monopoly on the book in Dayton and that copies were +supplied to him by the county library in Chattanooga. No, he hadn’t +noticed “any signs of moral deterioration in the community” since he’d +been selling them. + +This was Tennessee’s case against John Thomas Scopes. After some _pro +forma_ motions to dismiss the indictment had been denied by the judge, +Darrow called his first witness, a bespectacled gentleman who turned to +be Dr. Maynard M. Metcalf, a zoologist from John Hopkins University, +who described himself as an “evolutionist.” He was the first of a band +of scientific witnesses whom Darrow had brought to Dayton with him to +show “what evolution is ... and the interpretation of the Bible that +prevails with men of intelligence who have studied it.” But none of +them were ever to get to say their pieces, because Bryan, in his one +speech of the trial, convinced Raulston, who was ready to meet him more +than halfway, that “the Bible, the record of the Son of God, the Savior +of the World, born of the Virgin Mary, crucified and risen again--that +Bible is not going to be driven out of this court by experts who come +hundreds of miles to testify that they can reconcile evolution with its +ancestor in the jungle, with man made by God in His image and put here +for His purpose as part of a divine plan.” Not very legal, perhaps, but +quite persuasive. + +However, Raulston did consent to the submission of affidavits by +Darrow’s experts for the “information of the judge.” When Darrow asked +for the rest of the day to prepare these statements, Raulston indicated +that he wasn’t inclined to grant the request. “I do not understand,” +Darrow barked at him, “why every request of the State and every +suggestion of the prosecution should meet with an endless loss of time; +and a bare suggestion of anything that is perfectly competent on our +part should be immediately overruled.” Raulston, with a bland smile, +expressed the hope that “you do not mean to reflect upon the court?” + + DARROW: Well, your Honor has the right to hope. + + RAULSTON: I have the right to do something else perhaps. + + DARROW: All right, all right. + +The next morning, Saturday, the 18th, the _Chattanooga News_ +prophesized that Raulston would probably cite Darrow for contempt when +court reconvened after the weekend. + +But the weather was much too hot for further fireworks and on Monday, +Darrow, after being cited, mollified the ruffled feelings of his Honor +by admitting that “I went further than I should have gone and I want to +apologize to the court for it.” Raulston was more than magnanimous. “I +accept Colonel Darrow’s apology,” he murmured. “I am sure his remarks +were not premeditated. I am sure that if he had time to have thought +and deliberated, he would not have spoken those words ... we forgive +him and we forget it and we command him to go back home and learn in +his heart the words of the Man who said: ‘If you thirst come unto Me +and I will give thee life.’” Pyrrhus would have understood. + +That afternoon, as the usual crowd of slightly more than one thousand +people pushed into the courtroom after the noon recess, a worried +bailiff informed Raulston that there was some danger that the +building would collapse. The latter decided to transfer the trial to +the courthouse lawn where an impromptu platform had been built to +accomodate Bryan and the ministers who had been using their free time +to put in a word for the Bible and its copyright owner. But, from +the defense’s point of view, the courtroom _en plein air_ had one +drawback--there was a large sign on the courthouse wall facing the +jurors which importuned them to “Read Your Bible Daily.” When Darrow +suggested that a companion placard stating “Read Your Evolution” be +erected alongside the offending sign, Raulston promptly decided to +remove all signs. _Sic transit gloria mundi._ + +After the furor had died down, Arthur Garfield Hays finished reading +the statements which had been prepared by the scientists and clergymen +Darrow had brought to Dayton, and whose testimony had been excluded by +Raulston’s ruling. Seven geologists, anthropologists and zoologists as +well as three Protestant ministers and a Jewish rabbi were represented +as Hays, in a tired voice, tried his best to educate an increasingly +exasperated Raulston. When the defense attorney had finished his +readings, he offered into evidence two Bibles and sat down. Darrow +whispered something in his ear, and Hays was back on his feet again. +“The defense desires to call Mr. Bryan as a witness,” he announced. +“We should want to take Mr. Bryan’s testimony for the purposes of our +record, even if your Honor thinks it is not admissable in general, so +we wish to call him now.” + +Despite Bryan’s obvious discomfiture at having to take the stand, +there was no escape. He was being called as an expert on the Bible, a +status he had assumed before Chautauquas up and down the land, and he +simply could not refuse to accept Darrow’s challenge. After gaining a +few minutes to collect his thoughts by insisting that the lawyers for +the defense be ordered to take the stand when he was finished, Bryan +perched himself in the spindle-legged chair that passed for a witness +chair. What the _New York Times_ later described as the most amazing +court scene in Anglo-Saxon history was about to be launched. + +With the observation that he was sure that the witness would tell the +truth, Darrow waived having him sworn. Then he got down to cases. He +asked Bryan whether he had given considerable study to the Bible, and +the old Democrat assured him that he had, “for about fifty years.” With +slight exceptions, he was convinced that everything in the Scriptures +should be taken literally. “When I read that a big fish swallowed +Jonah,” he bellowed, “I believe it, and I believe in a God who can make +a whale and can make a man and make them both do what he pleases. One +miracle is just as easy to believe as another.” + +As Darrow led his perspiring adversary through the Bible from Creation +to the Battle of Jericho, many of the reporters sprawled on the benches +that had been placed under the square’s maple trees remembered that +he had asked many of the same questions in the pages of the _Chicago +Tribune_ two years earlier. Bryan had refused to answer them then, but +he was forced to do so now. When the long day drew to a close, Bryan +was a defeated and humiliated man who had left whatever reputation he +had brought into Dayton among the empty pop bottles and cracker jack +boxes that littered the courthouse lawn. As Will Rogers put it, “He +might make Tennessee the side show of America, but he can’t make a +street carnival of the whole United States.” + +With Bryan committed to defending the literalness of every incredible +occurrence in the Bible, Darrow’s task was a comparatively simple +one. A man who believed that Joshua made the sun stand still, or that +Eve was created out of Adam’s rib, or that a giant flood destroyed +all life on earth, was a sitting duck for an experienced and shrewd +cross-examiner. As the day wore on, it was quite apparent that Bryan’s +answers were destroying him in the eyes of even his friends, and that +Darrow had succeeded in turning a rout into what had all the earmarks +of a shattering victory. + +Bryan’s observation that he was “more interested in the Rock of Ages +than the age of rocks” set the tone of the entire interrogation. For +example, when Darrow took up the subject of Eve’s temptation, the +witness was certain that labor pains had originated with God’s wrath at +apple larceny. + + Q. And for that reason, every woman born of woman who has to carry on + the race, has childbirth pains because Eve tempted Adam in the Garden + of Eden? + + A. I will believe just what the Bible says. I ask you to put that in + the language of the Bible, for I prefer that to your language. Read + the Bible and I will answer. + + Q. All right, I will do that: “‘And I will put enmity between thee and + the woman’”--that is referring to the serpent? + + A. The serpent. + + Q. “‘... and between thy seed and her seed; it shall bruise thy head, + and thou shalt bruise his heel.’ Unto the woman he said, ‘I will + greatly multiply thy sorrow and thy conception; in sorrow thou shalt + bring forth children; and thy desire shall be to thy husband and he + shall rule over thee.’” That is right, is it? + + A. I accept it as it is. + + Q. And you believe that came about because Eve tempted Adam to eat the + fruit? + + A. Just as it says. + +As for the serpent, he had to “crawl upon his belly” for his nefarious +part in the episode. + + Q. Do you think that is why the serpent is compelled to crawl on his + belly? + + A. I believe that. + + Q. Have you any idea how the snake went before that time? + + A. No, sir. + + Q. Do you know whether he walked on his tail or not? + + A. No, sir. I have no way to know. + +The laughter that accompanied Darrow’s last question about the +earthbound snake marked the beginning of the end. A few minutes earlier +Bryan had admitted that the six days of Creation did not amount to “six +days of twenty-four hours.” His impression was that “they were periods” +but he had no idea as to their length. The defender of the Word, who +had refused to question Joshua’s sun-stopping maneuver or Jonah’s +sojourn in the alimentary canal of a whale, knew that it took more +than a week to build a makeshift barn, and somehow couldn’t swallow a +six-day Creation. But as far as the fundamentalists on the courthouse +lawn were concerned, he had betrayed them all. When he walked home +later that afternoon, only one man accompanied him. The rest of the +crowd followed Darrow all the way to the Morgan house. + +The next morning dawned cool and rainy, and Raulston ordered the circus +back into the courthouse, cracks or not. After expunging Bryan’s +testimony, because he felt it could “shed no light upon any issues +that will be pending before the higher courts,” he ordered the jury, +which had been cooling its collective heels for more than a week just +inside loudspeaker range, to get back to work. Darrow said that he +thought it would save a great deal of time if the judge would instruct +it to bring back a verdict of guilty so that the case could “get to a +higher court.” At 11:14 on the morning of Wednesday, July 22nd, Captain +Thompson led his colleagues down the stairs to the courthouse lawn +where, after some eight minutes of palavar and one ballot, they found +Scopes guilty of violating the Butler Act. As to the fine, they were +willing to leave that to Raulston, who had told them in advance that +he intended to fix it at one hundred dollars, the minimum under the +statute. + +The judge was as good as his word. He asked Scopes to stand up and +informed him that he was indebted to the State of Tennessee in +the sum of one hundred singles. When Neal reminded Raulston that +he had forgotten to ask the defendant whether he had anything to +say before being sentenced, the judge was all apologies. The thin, +balding teacher, who had been silent for twelve sweltering days, +didn’t take very long to say what he had to say. “Your Honor, I feel +that I have been convicted of violating an unjust statute. I will +continue in the future, as I have in the past, to oppose the law in +any way I can. Any other action would be in violation of my ideal of +academic freedom--that is, to teach the truth--as guaranteed in our +constitution, of personal and religious freedom. I think the fine is +unjust.” + +Not to be outdone, his Honor, after imposing the fine again, told +Scopes that “it sometimes takes courage to search diligently for +a truth that may destroy our preconceived notions and ideas. It +sometimes takes courage to declare a truth or stand for an act that +is in contravention to the public sentiment. A man who is big enough +to search for the truth and find it and declare it in the face of all +opposition is a big man.” While Darrow, Hays and Malone were digesting +that one, the _Baltimore Sun_ posted the five-hundred-dollar bond +required as a condition of appeal and everyone began to congratulate +everyone else. After Hays had promised to send the judge a copy of +the _Origin of Species_, Raulston said, “We will adjourn and Brother +Jones will pronounce the benediction.” The first stage of the State of +Tennessee _versus_ John Thomas Scopes was over. + +For weeks before the trial, Bryan had been busy writing an +anti-evolution speech which he looked forward to delivering in the +courtroom. But Darrow’s carefully planned capitulation on the trial’s +last day had deprived him of his national forum. Such a speech, +however, could not remain locked up in the frustrated soul of a veteran +Chautauquian who was not in the habit of keeping his thoughts to +himself. After trying excerpts out on roadside audiences in Jasper and +Winchester, Tennessee, he persuaded the _Chattanooga News_ to publish +it. But he was never to see it in print. On Sunday, July 26th, he died +of what Darrow, with more candor than good taste, termed “indigestion +caused by over-eating.” As for the great oration, Mrs. Bryan released +it for general publication two days after her husband’s death. It went +largely unnoticed. + +Everything else was anti-climatic. A year and a half later, the +Tennessee Supreme Court sustained the constitutionality of the Butler +Act. But its four members reversed Scopes’ conviction because Raulston +had violated the state constitution when he, and not the jury, had +fixed the fine. Unless the prosecution insisted on bringing Scopes to +trial again, the case was cold turkey, and Chief Justice Green did his +best to keep it that way. “We see nothing to be gained,” he urged, “by +prolonging the life of this bizarre case.” The Attorney General took +the rather broad hint Green had dropped, and immediately nolle prossed +the indictment. + +Although the school board offered to reinstate Scopes, he decided to +take advantage of his notoriety and accepted a graduate scholarship. +As for the Butler Act, it was never to be enforced again--in Tennessee +or anywhere else for that matter. In 1951, a bill proposing its repeal +was introduced by, of all people, Rhea County’s representative in +the Tennessee Legislature, but it was soundly defeated. Another +attempt, ten years later, was voted down, 69 to 17, in the House +of Representatives. Today, it still lurks in the statute books, a +remembrance of things past. But as far as the “victorious defeat” that +clipped its wings was concerned, Darrow never grew tired of saying that +“I believed that the cause was worth while, and was always glad that I +helped.” + + + + +6 + +_Their Skin was Black_ + +The State of Alabama + +_versus_ + +Haywood Patterson + + +In 1931, Huntsville was a rickety industrial town in the northern +reaches of Alabama. Most of its 30,000 inhabitants depended on one or +another of the seven mills that were just beginning to be hit by the +depression that had already paralyzed other parts of the country. By +March, Margaret Mill, for example, had cut its work week to two days +and its average daily wage to $1.20. + +One of Margaret’s employees was a seventeen-year-old girl named +Ruby Bates whose nomadic family lived in a shack on Depot Street, +Huntsville’s Negro section. The only whites on the block, the Bateses +had migrated to Huntsville from the cotton fields of central Alabama. +Sharecropping had not brought in enough to feed five mouths and, after +Mr. Bates had deserted his brood and left for parts unknown, Ruby and +her mother decided to move into a town where both women could work at +one of the mills. First it was Athens and then Huntsville. + +Monday, March 23, 1931, was a sunny day on the cool side. Ruby, who +hadn’t worked for more than a week, was standing near her front window, +watching her brother and sister playing with the Negro children on +Depot Street, when Victoria Price, a Margaret co-worker, strolled up +the front walk. Twenty-five-year-old Victoria, who lived with her +mother on Arms Street, supplemented her meager mill earnings with some +slack-time prostitution. By 1931, she had a sizable arrest record even +though Walter Sanders, Huntsville’s deputy sheriff, described her as +“a quiet prostitute [who] don’t go rarin’ around cuttin’ up in public.” + +Victoria had an idea. Jack Tiller, her current boy friend, had run into +Lester Carter who had just been released from a Huntsville chain gang. +The two men had suggested that Victoria find a girl for Lester and then +they would shake the Alabama dust from their feet. Ruby was more than +willing and, after packing her few belongings, hurried over to the +Price’s two-room shack where Tiller and Carter were waiting. Both girls +had on overalls, under which they were wearing their entire wardrobes. +The two couples spent the night in a nearby hobo jungle where, between +some semi-public lovemaking, they made plans to go West and “hustle the +towns.” + +But, in the cold light of dawn, Tiller suddenly realized that he had a +wife who might not take too kindly to his proposed cross-country tour +with Victoria, and decided to give up the venture and go home. Carter +and the girls jumped a freight for Chattanooga, almost one hundred +miles away, where they bedded down in some woods just outside of the +city. There, they were joined by a street poet named Orville Gilley, +otherwise known as “Carolina Slim,” who was swiftly enlisted as a +replacement for Tiller. At eleven o’clock the next morning, the quartet +boarded a forty-car freight which was bound for Memphis. They settled +down in an open gondola car which was almost filled to the gunwales +with crushed rock. Five other white boys were sitting at the opposite +end of the car. + +The freight, which was following the tracks of the Southern Railroad, +crossed into Alabama at Bridgeport, and passed through Stevenson, +Fackler, Hollywood, Scottsboro, Lim Rock and Woodville before it came +to a stop at Paint Rock, less than thirty miles east of Huntsville. +Shortly after Gilley, Carter and the two girls had boarded the gondola, +the train stopped for water at a siding in Stevenson. Seconds later, +a dozen or so colored boys climbed into the gondola from an adjoining +box car. A fight immediately ensued between the invaders and the seven +white boys in the gondola, the net result of which was the forcible +eviction of all the whites with the exception of Gilley. + +The boys who had been thrown off the slowly moving train limped back +into Stevenson where they reported the incident to the stationmaster. +He telephoned ahead to Paint Rock, some thirty-eight miles west of +Stevenson, and, when the train pulled into that northern Alabama hamlet +at 2:30 p.m., a posse of seventy-five armed white men was waiting for +it. Nine Negro boys between thirteen and twenty years of age, as well +as Ruby Bates, Victoria Price and Orville Gilley, were removed from +the gondola. The girls were taken to a doctor’s office for a physical +examination while the Negroes were locked up in Scottsboro’s tiny +jailhouse. When an ugly crowd began to gather, Sheriff M. L. Wann asked +Governor B. M. Miller to send in the National Guard. The troops arrived +at four the next morning and escorted the nine suspects to Gadsden, +Alabama. Four days later, they were returned to Scottsboro where they +were all indicted on the charge that they “forcibly ravished ... a +woman against the peace and dignity of the State of Alabama.” + +Their trials started on Monday, April 6, 1931, in the Jackson County +Circuit Court. H. G. Bailey, the State Solicitor, asked Judge Alf E. +Hawkins to sever the trials, a request that was promptly granted. +Charlie Weems and Clarence Norris, who were twenty and nineteen +respectively, were first tried; their trial was followed by that +of eighteen-year-old Haywood Patterson. The third involved five +boys--Andy Wright (19), Willie Roberson (17), Olen Montgomery (17), +Ozie Powell (16) and Eugene Williams (15). The youngest defendant, +thirteen-year-old Roy Wright, was to stand trial by himself. + +The boys’ pedigrees were much the same. They were all destitute, +illiterate and unskilled southern Negroes who came from Tennessee and +Georgia. Roberson was suffering from both gonorrhea and syphilis while +Montgomery was practically blind. According to Patterson, “All nine +of us were riding the freight for the same reason, to go somewhere +and find work.” These were the “nine black fiends” who, according to +the _Jackson County Sentinel_ of March 26, 1931, had “committed [the] +revolting crime.” + +When the trials started, none of the defendants was in any position to +retain an attorney. Judge Hawkins had appointed “all members of the bar +for the purpose of arraigning the defendants, and then, of course, I +anticipated them to continue to help if no counsel appears.” A Stephen +W. Roddy, a Chattanooga lawyer, who had been approached by members of +the National Association for the Advancement of Colored People, told +Hawkins that, although he had not been paid and would not “appear as +counsel,” he was willing to do what he could on the defendants’ behalf. +He was joined by Milo Moody, a member of the Scottsboro bar, who +expressed his willingness “to help Mr. Roddy in anything I can do about +it under the circumstances.” The judge was quite obviously relieved +that the niceties of justice would be scrupulously observed. + +Roddy’s first step was to present a petition signed with nine X’s +asking for a change of venue. In view of the hostile crowd which filled +the courthouse lawn, he insisted that a fair trial was impossible in +Scottsboro. Bailey made it quite clear that he considered Roddy’s +suggestion impertinent and called Major Joe Starnes, the commanding +officer of the National Guard, to rebut it. Starnes assured the court +that “the crowd here was here out of curiosity and not as a hostile +demonstration toward these defendants.” The major’s opinion was enough +for Hawkins and he overruled Roddy’s motion. + +The four trials were over by Thursday morning. On Friday, eight of the +Negroes were sentenced to die in the Kilby Prison electric chair early +the following July. Because one juror refused to vote for Roy Wright’s +execution, his trial resulted in a hung jury. But eight out of nine was +a good batting average in anybody’s league and the crowd outside the +courthouse, which sang “There’ll be a Hot Time in the Old Town Tonight” +as each guilty verdict was announced, was more than satisfied with the +week’s work. + +In all four trials, Victoria Price and Ruby Bates were the +witnesses-in-chief for the prosecution. Their stories left little to be +desired as far as the State Solicitor was concerned. After the Negroes +had invaded the gondola car, they had cowed the white boys by “telling +them that they would kill them, that it was their car and we were +their women from now on.” Victoria accused Norris of having “sexual +intercourse with me” while Weems threatened her with a .45 pistol and +a knife. Norris had “pulled my overalls over me” and “the little one, +the smallest one, was holding my legs.” To add insult to injury, Norris +had not only raped her but stolen her knife, $1.50 of her money, and +a pocket handkerchief. Twelve Negroes had entered the gondola car but +“three got off.” She denied that she was travelling with any of the +seven white boys who had been involved in the fight at Stevenson. In +all, she and Ruby had each been raped by six boys but “three of hers +got away.” + +Ruby said that the Negroes had ordered the white boys in the gondola +car “to unload” before the rapes took place. Then, while some of the +defendants threatened her with knives and pistols, she had been thrown +to the gravel-covered floor of the car and attacked. “There were +three Negroes to each girl,” she told the spellbound jury, “one for +intercourse, one for holding the knife and one for holding the pistol. +They never did remove the knife or pistol.” + +Two physicians--Drs. R. R. Bridges and M. H. Lynch--had examined both +girls a little more than an hour after they had been removed from +the train. Although he had found no “recent lacerations” on either +woman, Bridges said that he had “found semen in the vagina of each +one.” Two years later, he was to state that “the semen did not move +and we don’t swear as to whether it is dead or alive unless we see +it move.” No lacerations, tears or bruises were found in the genital +region of either girl. Both Victoria and Ruby had seemed quite calm +during Bridge’s first examination but when he visited them in jail +the next day they were somewhat hysterical. Lynch, who was the head +of the Jackson County Health Department, confirmed his colleague’s +observations. + +Hawkins, who was determined to get the trials over with as soon as +possible, refused to let Roddy and Moody do more than present a token +defense. Nowhere was this more apparent than in their cross-examination +of the two physicians. When they tried to show that Victoria and Ruby +were far from virgins, the judge said such evidence was irrelevant. +While Dr. Bridges was on the stand, Roddy asked him whether either +girl showed any indications of gonorrhea or syphilis. Hawkins refused +to let the physician answer the question despite the fact that Willie +Roberson was suffering from both diseases. Although Bridges confirmed +that Roberson had “a bad case of it,” he was sure that “it is possible +for him to have intercourse.” + +Lynch and Bridges were followed by a number of Stevenson residents who +had seen the fight on the gondola car. Luther Morris had been in a barn +loft, some thirty yards away from the Southern roadbed, when the train +passed. He had seen a “bunch of Negroes put off five white men and take +charge of two white girls. The two white girls were doing their best to +jump and the Negroes got the two white girls and they were pulled back +down in the car.” Two of the boys who had been thrown off the train by +the Negroes passed by Morris’s barn on their way to Stevenson but were +too stunned to talk to him. “They just said: ‘I am dying’ ... they were +badly hurt.” + +Orry Robbins had been standing near a woodpile, a hundred yards away +from the tracks, when the train passed. He said that “I saw two girls +and these colored people ... one of the colored men grabbed a woman and +threw her down.” T. L. Dobbins, who was only a few feet away from the +train, had observed the scuffling in the gondola car but, as far as the +participants were concerned, he “could not tell whether they were white +or black.” Lee Adams, who was two hundred yards away, had watched “a +bunch of people in a car ... striking and about that time I saw someone +go over the top of the car.” Later, he saw two of the boys who had +been thrown off the train running toward Stevenson and “the blood was +running down their faces.” By the time the train passed Sam Mitchell, +it was going between thirty and forty miles per hour. As for the fight, +“we see’d them wrestlin’, ’peared like. That’s all I seen; the train +was going pretty fast.” + +When the train stopped at Paint Rock, the armed posse was waiting for +it. Bailey used some of its members to add what little they could to +the case against the defendants. Tom Taylor Rousseau was certain that +Victoria “was unconscious” when “they toted her off the train. She had +her eyes closed and was lying over this way ... she was in no condition +to walk.” Victoria had previously testified that “I was unconscious +after I got off the train ... I became unconscious when I fell off the +stirrup on the side of the gondola.” T. M. Latham, a deputy sheriff, +testified that the girl “could not walk” when he first saw her. Jim +Broadway said, “The Bates girl seemed to be in fairly good shape but +the other could not hardly talk and couldn’t walk.” + +Both women told Latham that “we have been mistreated” but Broadway, +who was only a few feet away, said, “I did not hear Victoria Price make +no complaint, either to me or to anyone else about the treatment they +received at the hands of these defendants over there.” Victoria herself +had admitted that the defendants’ arrest had not been “on account of +any complaint of mine.” Lastly, Jackson County Deputy Sheriff Arthur +W. Woodall testified that he had found Victoria’s pen knife in Norris’ +pocket. + +Orville Gilley, who was the only white boy who had not been thrown off +the train as it pulled out of Stevenson, was used in the third trial. +Outside of the girls, he was the sole white eyewitness to what had +occurred in the gondola car. Yet Bailey used him only for the limited +purpose of identifying five of the defendants as having been present in +the car. “I saw those five in the car ... every one of those five in +the gondola.” + + Q. Were the girls in there? + + A. Yes, sir. + +Evidently, Sam Gilley’s son had been singularly unconcerned with what +was happening to his traveling companions for he made no attempt either +to notify the engineer or the conductor or to leave the train. + +When the state rested, all of the defendants took the stand. Weems +accused Haywood Patterson of forcing him, at the point of a pistol, +to fight the white boys on the train. But he insisted that he “didn’t +see the girls. I never did see the girls.... If anybody had anything +to do with the girls, I don’t know nothing about it.” Clarence Norris +on the other hand, had “seen every one of them have something to do +with those girls, all eight of them, but I didn’t.” According to him, +Patterson had said that “he was going over there to run the white boys +off and going to have something to do with them.” Patterson swore that +he had been sitting on the box car behind the gondola, from which +vantage point he had seen Weems and several others rape Victoria. “But +I had nothing to do with those girls,” he insisted. Roy Wright also +said that “there was nine Negroes down there with the girls and all had +intercourse with them ... I saw that with my own eyes.” + +The other defendants insisted that they were completely innocent. +They denied that they had seen the girls until the freight stopped +at Paint Rock. Ozie Powell “never did see the girls” from the time he +boarded the freight at Chattanooga until it was stopped at Paint Rock. +Olen Montgomery, who claimed that he had been “back in the seventh car +from the end of the train ... by my lonely ... first saw them at Paint +Rock,” and Eugene Williams “did not see the girls at all until we got +to Paint Rock.” Andy Wright swore that “I did not have intercourse with +a woman on that train” while Willie Roberson testified that, because of +his venereal diseases, “I am not able to have sexual intercourse.” + +After the eight convicted defendants had been sent to the Kilby Prison +death row, Roddy filed four motions for new trials. Among other +grounds, he urged that the defendants were not given sufficient time in +which to prepare their defense and that the atmosphere in Scottsboro +was so hostile that a fair trial was impossible. On June 22nd, Hawkins +denied all the motions and, in Kilby’s Cell 222, Haywood Patterson “was +busy living from minute to minute” while he and the Scottsboro Boys, +as they came to be called, were waiting for their July 10th date with +current supplied free of charge by the Alabama Light and Power Company. + +But July 10th came and went and the only man executed at Kilby that +night was one Will Stokes, an ax-murderer, who went to his death a few +minutes after midnight. An appeal to the Alabama Supreme Court from +Judge Hawkin’s refusal to grant new trials had resulted in a stay of +execution for Patterson & Company. It wasn’t until the following Spring +that the judgments were affirmed and seven of the defendants were +re-sentenced to die on May 13, 1932. Because Eugene Williams was under +sixteen, Alabama law required that he be tried as a juvenile delinquent +and his conviction was reversed on that ground alone. + +When the appeals were argued before the Alabama Supreme Court, neither +Roddy’s nor Moody’s names appeared on the briefs for the defendants. +George W. Chamlee, Senior, and his son, George, Junior, two Chattanooga +lawyers, now represented the Scottsboro boys. They had been selected +by the International Defense League, a Communist affiliate devoted +to defending any member of the “working class” who ran afoul of +“capitalist justice.” Through Joseph R. Brodsky, its general counsel, +it had financed the appeals to Alabama’s highest court. + +On April 9, 1932, the judges refused to rehear the appeals and it +looked very much as if the year-long fight to save eight nondescript +lives was about over. But the I.L.D. was not one to leave any stone +unturned (or unhurled) and it asked the United States Supreme Court to +intervene. Early in October, Walter H. Pollak, another I.L.D. attorney, +argued in Washington that the defendants had not received a fair and +impartial trial, had been denied the right of counsel and sufficient +time in which to prepare their defense, and had been tried before +juries from which qualified Negroes were deliberately excluded. + +On November 7, 1932, seven of the nine justices reversed the +convictions and ordered new trials for all the defendants. In their +opinion, the Scottsboro Boys had not been given an opportunity to +secure counsel of their own choice. “Not only was that not done +here, but such designation of counsel as was attempted was either so +indefinite or too close upon the trial as to amount to a denial of +effective and substantial aid.... We hold that the defendants were +not accorded the right of counsel in any substantial sense. To decide +otherwise, would simply be to ignore actualities.” + +After the first trials, Ruby Bates had returned to Depot Street. On +January 5, 1933, she sat down at the kitchen table and wrote a letter +to a “Dearest Earl,” evidently a successor in interest to Lester +Carter. In it, she told him that “those Negroes did not touch me or +those white boys ... i know it was wrong too let those Negroes die on +account of me i hope you will believe my statement because it is the +gods truth ... i wish those Negroes are not Burnt on account of me.” +The messenger to whom she gave the letter never delivered it. Ten +minutes after he started out, he was in the Huntsville lockup, accused +of starting a street fight. The police turned the letter over to the +prosecution and it took the I.L.D. until the end of January to get a +court order permitting its attorneys to photostat it. + +On March 6th, a motion for a change of venue was granted by Judge +Hawkins and Decatur was selected as the _mise en scène_ in a case that +was now as well known in Berlin and Paris as it was in Birmingham and +Memphis. A week later, William Patterson, the I.L.D.’s executive +secretary, persuaded Samuel S. Leibowitz, who, at thirty-nine, was New +York’s best known criminal lawyer, to come south and see what he could +do to convince twelve Morgan County jurymen to give “this poor scrap of +colored humanity a fair, square deal....” Act II was about to begin. + +In Kilby’s death row, Guard L. J. Burrs told the defendants to get +ready for a trip to town. On the first day of spring, they were taken +to the Jefferson County Jail in Birmingham to await their second +trials. Six days later, Patterson’s began in Decatur’s white-columned +courthouse before Judge James E. Horton who, according to the +defendant, “looked like pictures of Abe Lincoln.” This was to be no +one-day outing. To counteract Leibowitz, Thomas Knight, Jr., Alabama’s +Attorney General, with State Solicitor Bailey and Morgan County Circuit +Solicitor Wade Wright at his elbow, entered the lists for Alabama. On +March 27th, Horton granted the State’s motion to sever Patterson’s case +from those of the other defendants and, on the following morning, his +trial was off and running. + +Leibowitz’s opening gambit was to move to dismiss the indictment +because Negroes had been systematically excluded from the grand jury +rolls of Jackson County. According to Section 8603 of the Alabama +Code, all male citizens between the ages of twenty-one and sixty-five +who could read English and had not been convicted of any offense +involving moral turpitude could serve on grand and petit juries if +they were “generally reputed to be honest and intelligent men, and are +esteemed in the community for their integrity, good character and sound +judgment.” Literacy could be waived if the prospective juror was a +“freeholder or householder.” + +As far as grand juries were concerned, evidently not one of the more +than six hundred adult male Negroes in Jackson County had ever met the +requirements of Section 8603. Jefferson E. Moody, a member of the Jury +Commission from 1930 to 1931, couldn’t remember seeing any Negroes on +the list. C. A. Wann, who had been Clerk of the Circuit Court for five +years, said, “I do not know of one single instance where a Negro had +served on a grand jury in Jackson County, in all my experience.” Hamlin +Caldwell, a court reporter for the Ninth Judicial Circuit, who hadn’t +missed a session in Jackson County for twenty-four years, testified +that he had “never seen a colored man on the grand jury....” J. S. +Benson was the editor of _Progressive Age_, a Scottsboro newspaper. +Convinced that no Negro could possibly qualify as a grand juror (“They +all steal”), he had “never known of a single instance where any Negroes +were put on the jury roll.” + +Then the defense called a number of Jackson County Negroes who seemed +to meet the standards of 8603. John Sandford, a fifty-year-old +plasterer, who could read and write and had no criminal record, +swore that he had “never been put on a jury roll and have never been +examined by any Jury Commission as to my qualifications....” He said +that he knew a great many eligible Negroes in the county who had also +never been called for jury service. Mark Taylor, who was a member of +the District No. 88 School Board, and Travis Mosely, who owned real +property in Scottsboro, told similar stories. Finally, after Leibowitz +had paraded five other seemingly qualified Negroes to the stand, Horton +called it quits and denied the defense motion to dismiss the indictment. + +Then Leibowitz turned to another track. Anticipating a second +conviction, he decided to lay a more substantial foundation for an +eventual return to Washington and attacked the Morgan County petit +jury system as well. First, he called a great many Decatur Negroes who +clearly met all the statutory requirements to sit on juries. Among +others, there were Dr. Frank Sykes, a dentist, Dr. N. E. Cashin, a +physician, Reverend L. B. Womack, the pastor of the First Missionary +Baptist Church, and J. E. Pickett, a teacher in the Negro High School +for more than eighteen years. He followed them with Arthur J. Tidwell, +a member of the Jury Board of the Morgan County, who stated that “I +have never seen a Negro serve on a jury, never heard of one.” Neither +had his two fellow commissioners. + +When Leibowitz threatened to call every person whose name appeared on +the jury roll “even if it breaks the state” and requested subpoenas +for almost four hundred other Morgan County Negroes, Judge Horton gave +up the ghost and conceded that it looked as if Alabama deliberately +excluded Negroes from its juries. With these preliminaries out of the +way, an all-white jury was impaneled and Victoria Price, “in dress-up +clothes,” sashayed up to the witness stand. In twelve minutes, she +repeated much the same story she had told in Scottsboro, a year back. + +Victoria proved to be more than a match for Leibowitz. When he pointed +to a thirty-two-foot model of the freight train which he had brought +with him from New York and asked her to point out the gondola car, she +spiked his guns by mumbling, “The gondola I was in was much bigger than +that thing.” Since she had sworn at Scottsboro that she was twenty-one +when the defendants raped her, he asked her whether it wasn’t true +that she was actually four years older. “I ain’t that educated that I +can figure it out.” When he accused her of being “a little bit of an +actress,” she snapped back, “You’re a pretty good actor yourself.” + +As her cross-examination developed, it was apparent that the defense +was staking everything on getting Victoria to admit that she had +invented the rape story in order to keep from being arrested for +traveling across the Alabama-Tennessee line with Carter and Gilley. +This, the witness passed off as “some of that Ruby Bates dope.” After +Ruby’s letter to “Dearest Earl” had been intercepted, it was obvious +to both prosecution and defense alike that the solid front presented +by the Gondola Girls in the first trials was about to split wide open. +As the trial unfolded, Knight did his best to prepare the jury for the +anticipated appearance of Ruby, who had been missing since early 1933, +as a witness for Patterson. + +Leibowitz provoked Victoria into admitting that she had been married +twice before, first to a Henry Presley and then to one Ennis McClendon. +However, she insisted on calling herself Mrs. Price for reasons best +known to herself. When Leibowitz suggested that the presence of semen +in her vagina might have been the result of some shenanigans in a +hobo jungle just outside of Chattanooga the night before the freight +ride, she screamed, “You can’t prove it!” But, in the main, Knight was +successful in blocking most questions concerning Victoria’s previous +condition of rectitude or her sexual activities on the nights of March +23rd and 24th. + +After Dr. Bridges, Lee Adams, Orry Dobbins and Tom Taylor Rousseau +had repeated their 1931 stories, Knight called Art Woodall who had +previously testified that he had found Victoria’s pen knife in Norris’s +pocket. Now, he insisted that he couldn’t remember which Negro had the +knife, but whoever it was had told him that he had taken it “from one +of the white girls.” When it was shown to Mrs. Price, she immediately +identified it as hers and swore that it had been held against her +throat during the rapes. This testimony so delighted the Attorney +General that he couldn’t refrain from applauding the witness and had to +be taken from the courtroom to regain his composure. + +All of the defendants except Norris, Weems and Roy Wright took the +stand. Knight threw their previous admissions at them but each one +now insisted that, not only had he not attacked any white girls, but +that he had not seen any other defendant do so. Any incriminating +statements they had made at Scottsboro had been beaten or extorted +from them. As Patterson put it, “We was scared and I don’t know what I +said. They told me if we didn’t confess, they’d kill us, give us to the +mob outside.” They were followed by Dr. E. E. Reisman, a Chattanooga +gynecologist, who said that much of Victoria’s testimony about her +physical condition did not coincide with what one would expect to see +in a woman who had been violently raped six times. Dr. Bridges had +previously admitted that the most he could “say about the whole case is +that both of these women showed that they had intercourse.” + +Lester Carter said he had first met Victoria when they both were +inmates of the Huntsville Jail. He confirmed that he and Tiller had +spent two nights with the girls in a hobo jungle and that he had +boarded the freight with them on the morning of March 25th. He and the +other six boys who had been in the gondola had been held in custody +in Scottsboro during the first trials but had never been called as +witnesses by the prosecution. + +Then the bailiff called out the name of Ruby Bates. Shortly after the +interception of her “Dearest Earl” letter, the I.L.D. had sent her to +New York City for safekeeping. There she had stayed with Dr. Harry +Emerson Fosdick, who had urged her to return to Alabama and testify in +Patterson’s behalf. Once the hubbub in the courthouse had died down, +Leibowitz went straight to the point. + + Q. You testified at each of the trials at Scottsboro, didn’t you? + + A. Yes. + + Q. You said you saw six Negroes rape Victoria Price and six raped you, + didn’t you? + + A. Yes, but I was excited when I told it. + + Q. You told at Scottsboro that one held a knife at your throat, and + what happened to you was just the same that happened to Victoria + Price. Did someone tell you to say that? + + A. Victoria Price told me to say that. I said it like she told me to. + + Q. Did she say what would happen if you didn’t do as she told you to? + + A. Yes, she said we might have to lay out a sentence in jail. + +She freely admitted that she had lied at the first trials because +“Victoria ... said we might have to stay in jail if we didn’t frame +a story for crossing the state line with men ... every time she said +‘rape’ I did not know what rape was.” + +After the prosecution harangued the twelve Sand Mountain farmers in the +jury box with warnings about “justice ... bought and sold in Alabama +with Jew money from New York,” they retired at 12:45 p.m. on April 9, +1933. Twenty-two hours later their foreman handed a piece of paper up +to Judge Horton. On it, in large, laboriously printed letters, was +Patterson’s death warrant. “We find the defendant guilty as charged and +fix the punishment at death in the electric chair.” One week later, +Horton set June 16th as execution day. + +Patterson was returned to the Jefferson County Jail pending a decision +by Judge Horton on a motion filed by Brodsky on April 16th asking +for a new trial because the conviction was against the weight of the +evidence. In the interim, Knight prepared to try the case of Charlie +Weems and asked Horton to call it for trial. But the judge refused +to do so, feeling as he did that statements made by both Leibowitz +and Knight had contributed to the “already heated atmosphere which +surrounds this case.” Back in New York, Leibowitz was referring to the +jury as “those bigots whose mouths are slits in their faces, whose +eyes popped out at you like frogs, whose chins dripped tobacco juice, +bewhiskered and filthy....” Knight was no less effusive in voicing +his opinion of “Jew justice.” Accordingly, Horton decided to adjourn +Weems’ trial “until such time when in [his] judgment a fair and +impartial trial may be had.” + +But the biggest surprise of all was yet to come. On June 22nd, Horton +announced that he had decided to grant Brodsky’s routine motion for a +new trial. Not only did he disbelieve Victoria Price’s testimony, but +he felt that the other evidence in the case “preponderates in favor of +the defendant.” His 108-page opinion (which was to cost him his job at +the next November elections) clearly indicated that he had not believed +a word that Victoria had said. “The conclusion becomes clearer and +clearer,” he wrote, “that this woman was not forced into intercourse +with all of these Negroes upon that train, but that her condition was +clearly due to the intercourse that she had had on the night previous +to this time.” + +On November 20, 1933, Patterson went back to Decatur for his third +trial. This time the judge was William Washington Callahan, who, +according to Patterson, was “the toughest, most freckle-faced, +baldheaded man I was ever up against.” After Leibowitz tried to show +that seven Negro names now found on the jury roll had been forged, the +principal actors went through their dreary lines again and, on December +1st, Patterson was convicted for the third time. When Callahan imposed +the death sentence, he forgot to include the customary prayer for +mercy. Perhaps even God was tired of re-runs. + +A week later, Norris was also convicted and the two men were sent back +to Kilby’s death house. On June 28, 1934, Alabama’s highest court +affirmed the convictions and Leibowitz and Pollak promptly appealed +to the United States Supreme Court. On April 1, 1935, Chief Justice +Charles Evans Hughes announced that both convictions had been reversed +because Negroes had been barred from grand and petit jury duty in +Jackson and Morgan Counties. The immediate result was that the Jackson +County Grand Jury returned new indictments for rape against all nine +boys. But something new had been added: for the first time in as far +back as Alabamans cared to remember, a Negro--one Creed Conyer--sat on +a grand jury. + +Haywood Patterson’s fourth trial began on January 20th, 1936, before +Judge Callahan again. The Scottsboro Defense Committee, which was a +composite of all the organizations which had been involved in the +case, was now running operations and Leibowitz took the long trek +south again. But the years didn’t seem to make much difference as far +as Morgan County juries were concerned and Patterson was convicted +once more. This time he was sentenced to seventy-five years in prison. +After the Alabama Supreme Court affirmed his conviction, the ninth +jury to listen to Victoria’s tale of woe found Norris guilty and he +was sentenced to death. Andy Wright was then sentenced to ninety-nine +and Charlie Weems to seventy-five years. Ozie Powell pleaded guilty to +assaulting a deputy sheriff and was given twenty years in state prison. + +On July 24, 1937, after Weems and Powell were sentenced, “the +Scottsboro prosecution staff” announced that the charges against Roy +Wright, Olen Montgomery, Eugene Williams and Willie Roberson were being +dropped. “... after careful examination of the testimony, every lawyer +connected with the prosecution is convinced that the defendants Willie +Roberson and Olen Montgomery are not guilty.” As for Roy Wright and +Eugene Williams, “After careful examination of this crime one of these +juveniles was 12 years old and the other one was 13 ... the ends of +justice would be met at this time by releasing [them] on condition that +they leave the state, never to return.” + +Negotiations for the release of the remaining five went on during +the rest of 1937. On December 21st, Governor Bibb Graves told three +members of the Scottsboro Defense Committee that he agreed that, if +four of the defendants were not guilty, the remaining five were equally +innocent. “The position of the State is untenable, with half out and +half in on the same charges and evidence ...” he told them. “When the +cases come before me, I intend to act promptly.” After ten months of +technicalities, Graves agreed to release all the imprisoned defendants, +with the exception of Ozie Powell, to the Defense Committee on Monday, +October 31, 1938. However, on October 29th, he wired the Committee that +he was forced to postpone their release. + +It was not until January 8, 1944, that Alabama decided to open the +gates of Kilby Prison to Andy Wright and Clarence Norris. A few months +later, Charlie Weems followed them through “the little green gate” +to the outside world. Ozie Powell was paroled on June 16, 1946 and, +two years later, Patterson escaped from prison and fled to Michigan +where Governor Mennen Williams refused extradition. He died of cancer +on August 22, 1952 in a Michigan prison where he was serving a term +for manslaughter. Although Norris was picked up in 1944 as a parole +violator, he was finally released on September 26, 1946. Andy Wright +suffered the same fate in 1946 but gained his freedom a year later and +was last heard of in 1954 when he was picked up in Albany, N. Y., for +slashing his wife with a butcher knife. + +Perhaps the saddest episode of all occurred on August 16, 1959, when +Roy Wright, the youngest of the Scottsboro Boys, shot and killed his +wife in New York City because he thought that she had been unfaithful +to him. He then committed suicide and was found dead on the floor of +his Harlem apartment with an open Bible by his side. According to Mrs. +Bill (Bojangles) Robinson, who, with her husband, had raised him after +Leibowitz had brought him north, “he made it a point through his life +since he came here to keep good company and to keep away from anything +that might get him into trouble. He didn’t want his background on the +Scottsboro thing hashed over again.” + + + + +7 + +_A Traitor from Harvard_ + +The United States of America + +_versus_ + +Alger Hiss + + +A few minutes after eleven o’clock on the morning of Tuesday, August +3, 1948, a portly little man walked slowly to the front of the Ways +and Means Committee Room in which the House Committee on Un-American +Activities was holding an open session. After he had been sworn, he sat +down gingerly in a wooden chair that was perched directly in front of a +raised platform behind which acting Chairman Karl Mundt and five of his +colleagues were ensconced. Robert Stripling, the Committee’s counsel, +began the hearing. + + Q. Will you state your full name? + + A. My name is David Whittaker Chambers. + + Q. Where and when were you born? + + A. I was born April 1, 1901, in Philadelphia. + + Q. How long have you been associated with _Time Magazine_? + + A. Nine years. + + Q. Prior to that time, what was your occupation? + + A. I was a member of the Communist Party and a paid functionary of the + party. + +The witness asked if he might read a prepared statement. In a voice +that was barely audible at the press table, he told of his fifteen +years’ service as a Soviet espionage agent. In 1939, two years after he +said that he had “repudiated Marx’ doctrines and Lenin’s tactics,” he +had gone to Washington to report what he knew “about the infiltration +of the United States Government by Communists.” At that time, he had +told Assistant Secretary of State Adolph A. Berle, Jr., that there was +an underground Communist movement in the government. “The head of the +underground group at the time I knew it was Nathan Witt, an attorney +for the National Labor Relations Board. Later, John Abt became the +leader. Lee Pressman was also a member of this group, as was Alger +Hiss, who, as a member of the State Department, later organized the +conferences at Dumbarton Oaks, San Francisco, and the United States +side of the Yalta Conference.” + +In New York City, Alger Hiss, who was in the middle of his second year +as the president of the Carnegie Endowment for International Peace, had +just returned from a month’s vacation in Vermont. As soon as he heard +of Chambers’ charges, he sent a telegram to Chairman Mundt in which +he stated, “I do not know Mr. Chambers and insofar as I am aware have +never laid eyes on him.” He requested permission to “appear before +your Committee to make these statements formally and under oath.” +Hiss suggested Thursday, August 5th, and hoped that “that will be a +convenient time from the Committee’s point of view for me to appear.” +Mundt immediately wired back that it was. + +On Thursday morning, Hiss had his chance. In the large Caucus Room in +the Old House Office Building, he told the Committee that he had never +heard of Whittaker Chambers until 1947 “when two representatives of +the Federal Bureau of Investigation had asked me if I knew him.... +I said I did not know Chambers. So far as I know, I have never laid +eyes on him, and I should like to have the opportunity to do so.” As +far as Chambers’ accusations were concerned, they were all “complete +fabrications.” The witness was willing to let his Government service +speak for itself. + +On Tuesday, Chambers had testified that, before he had broken with the +underground, he had tried to persuade Alger Hiss to do the same. In +a tearful scene at the Hiss home, his friend had “absolutely refused +to break.” Hiss denied that any such incident had ever occurred and +repeated his statement that, as far as he knew, the name Chambers +“means absolutely nothing to me.” When he was shown a recent photograph +of Chambers, the witness insisted that he “would much rather see the +individual.... I would not want to take an oath that I had never seen +that man. I would like to see him and then I think that I would be +better able to tell whether I had ever seen him.” When Mundt told +him that Chambers was not present in the hearing room, Hiss replied, +somewhat sharply, that “I hoped he would be.” + +Even though the acting chairman wondered publicly “what possible motive +a man who edits _Time Magazine_ could have for mentioning Alger Hiss in +the same breath as Nathan Witt, Lee Pressman, John Abt and Harold Ware, +he thanked Mr. Hiss for his “very cooperative attitude” and “forthright +statements.” Furthermore, he stated that he had been impressed by +the fact that the witness was the first of all the people named by +Elizabeth Bentley and the other apostates to come forward voluntarily +and deny his guilt. Even Mississippi’s Rankin, who was not known for +his kinship with intellectuals, congratulated Hiss for not taking +advantage of the Fifth Amendment and for appearing without a lawyer “to +tell him what to say.” All in all, it had not been a bad day for the +gentleman from New York. + +After Hiss had denied knowing Chambers, Stripling informed Mundt +that “there is a very sharp contradiction here in the testimony. I +certainly suggest Mr. Chambers be brought back before the Committee +and clear this up.” The chairman agreed and appointed a sub-committee +composed of California’s Nixon, Louisiana’s Hébert and Pennsylvania’s +McDowell to question Chambers in executive session. Two days later, the +sub-committee met in Room 101 of New York’s United States Courthouse. +With Nixon taking the lead, Chambers was questioned closely about his +claimed acquaintance with Alger Hiss and his family. The witness’ +answers revealed such an intimate knowledge of the Hisses that it +was apparent that he had either known them extremely well or done +considerable homework. + +First of all, Hiss had known him only as Carl, his party name. They had +been the best of friends and he had spent a great deal of time at the +various Hiss homes in Baltimore and Washington. The witness’ knowledge +of what Hiss later referred to as “petty housekeeping details” was +apparently inexhaustible. He knew that Mrs. Hiss called her husband +“Hilly,” that the Hisses had a cocker spaniel, and that “they both +had the same hobby--amateur ornithologists, bird observers.” In fact, +he remembered that “once, they saw, to their great excitement, a +prothonotary warbler.” + + MR. McDOWELL: A very rare specimen? + + MR. CHAMBERS: I never saw one. I am also fond of birds. + +When he had first met the Hisses, they owned a Ford roadster which, he +remembered, “was black and it was very dilapidated.” In 1936, they had +purchased a new Plymouth, and J. Peters, the head of the underground +organization, had helped them dispose of the Ford through a Communist +service station in Washington. He described Hiss as a slender man, +“about 5 feet 8 or 9,” who walked with “a slight mince;” Priscilla +Hiss was “a short, highly nervous, little woman” who had “a habit of +blushing red when she is excited or angry, fiery red.” Timmy Hobson, +Mrs. Hiss’ son by a previous marriage, “was a puny little boy, also +rather nervous.” The boy’s father was paying for his education but the +Hisses were diverting “a large part of that money to the Communist +Party.” + + MR. NIXON: Hiss told you that? + + MR. CHAMBERS: Yes, sir. + + MR. NIXON: Did he name the Communist Party as the recipient? + + MR. CHAMBERS: Certainly. + + MR. NIXON: He might have said simply “the party.” Could it have been + the Democratic Party or Socialist Party? + + MR. CHAMBERS: No. + +Hiss had told him that he had a sister who lived with his mother. In +fact “he once drove me past their house, which as I recall, was on or +near Linden Street.” But he had never seen either the mother or the +sister. As for Hiss’ younger brother, Donald, he had met him “within +the same week in which I met Alger Hiss.” But, whereas “my relationship +with Alger Hiss quickly transcended our formal relationship,” Chambers’ +contact with Donald was confined to collecting party dues from him. +He couldn’t remember much about Donald except that he was married to +a non-Communist and that “everybody was worried about her.” He had a +general impression that the younger Hiss “was much less intelligent +than Alger” and that “he was interested in the social climb.” + +Mrs. Hiss’ maiden name was Priscilla Fansler and “she came from the +Great Valley near Paoli, Pa.” In fact, Chambers had once taken a trip +with the family, and Mrs. Hiss had shown him “the road down which their +farm lay.” + + MR. NIXON: You drove with them? + + MR. CHAMBERS: Yes. + + MR. NIXON: Did you ever go on a trip with them other than by + automobile? + + MR. CHAMBERS: No. + + MR. NIXON: Did you ever stay overnight on any of these trips? + + MR. CHAMBERS: No. + +While he was fairly certain that Mr. Hiss did not go to church because +he was forbidden to do so, he did not know about his wife who “came +from a Quaker family.” + +Before subsiding, Nixon asked the witness if he had seen Hiss since +1938. Chambers’ answer was as definite as it could be. “No: since the +time I went to his house and tried to break him away, I have never seen +him since.” Hébert then took over and exhibited a marked interest in +the house occupied by the Hiss ménage. When Chambers had first met Hiss +“he was living on Twenty-eighth Street.” Some time later, he had moved +to a house in Georgetown, possibly “on the corner of P Street.” He had +the impression “it was a three-story house with a kind of porch in back +where people sat.” After that, “he moved to a house on an up-and-down +street, a street that would cross the lettered street, probably just +around the corner from the other house and very near to his brother +Donald.” This house had a basement, dining room and a small backyard. +“I think he was there when I broke with the Communist Party.” When he +tried to persuade Hiss to leave the Party, too, the latter had been +living in a house “beyond Wisconsin Avenue.” + +Before the sub-committee adjourned at 1:10 p.m., Nixon suddenly asked +Chambers if he was “willing to submit to a lie detector test on this +testimony.” The witness said he would if Nixon thought it was necessary. + + MR. NIXON: You are that confident? + + MR. CHAMBERS: I am telling the truth. + +Before Messrs. Nixon, Hébert and McDowell returned to Washington that +afternoon, they had decided to recommend to the full Committee that +Hiss be recalled. + +On Friday, August 13th, J. Parnell Thomas, the regular chairman, sent +a telegram to Hiss, asking him to appear before the Committee the +following Monday. That same Friday, Donald Hiss denied at a public +hearing “every statement made by Mr. Chambers with respect to me. I am +not, and never have been, a member of the Communist Party, or of any +formal or informal organization affiliated with, or fronting in any +manner whatsoever for, the Communist Party.” He had belonged to nothing +more subversive than the Y. M. C. A., the Washington Racquet Club and +the Harvard Law School Association. As for his accuser, “I have no +recollection of ever having met any person by the name of D. Whittaker +Chambers nor do I recognize his photograph which I have seen in the +public press.” + + MR. NIXON: As I understand your statement, you have made an + unqualified statement that you have never known a man by the name of + Carl who resembled that man? + + DONALD HISS: I have never known that man by the name of Chambers, + Carl, or any other name, sir. + +When he suggested that whoever was lying ought to go to jail, Mundt +seconded the motion. + +On August 16th, Alger Hiss faced the Committee once more, this time +in executive session. Reassured by the fact that the President of +the United States had publicly labeled his case as “a red herring,” +deliberately designed to hide the failures of the Eightieth Congress, +Hiss eased himself into the witness chair with a visible air of +confidence. Again, it was Nixon who asked most of the questions. The +first order of business was to try to determine whether Hiss had ever +known Chambers, under one name or another. Nixon handed the witness two +photographs and asked him “if you can remember that person either as +Whittaker Chambers or as Carl or as any other individual you have met.” + +This time, Hiss admitted that “the face had a certain familiarity.” +Although, he would still like to see Chambers face to face, he was +“not prepared to say that I have never seen the man whose pictures are +now shown me.” But that was as far as he cared to go until he had the +opportunity of “seeing the man, hearing him talk, getting some much +more tangible basis for judging the person and the personality.” + + MR. NIXON: Would your answer be any different if this individual were + described to you as one who had stayed overnight in your house on + several occasions? + + MR. HISS: I think Mr. Nixon, let me say this: In the course of my + service in the government ... I have had a great many people who have + visited in my house. If this is a picture of anyone, I would find it + very difficult to believe that that individual could have stayed in my + house when I was there on several occasions overnight and his face not + be more familiar than it is. + +When the chairman asked him whether he thought he would recognize a man +who had spent a week in his house in the past fifteen years, Hiss was +sure that he would “if he hadn’t had a face-lifting.” + + MR. THOMAS: No doubt in your mind? + + MR. HISS: I have no doubt whatsoever. + +After a brief recess, Hiss announced that “I have written a name on +this pad in front of me of a person whom I knew in 1933 and 1934 who +not only spent some time in my house but sublet my apartment.” The +name of this man was George Crosley and the witness remembered him +as a free-lance writer who had occasionally interviewed him when he +was counsel to the Nye Committee. As he recalled it, “this fellow was +writing a series of articles ... which he hoped to sell to one of the +magazines.” In June of 1935, when the Hisses had purchased the P Street +house, they had rented their Wardman Park apartment to Crosley and +his family which consisted of a “strikingly dark” wife and an infant +daughter. Because all of Crosley’s furniture hadn’t arrived, “we put +them up 2 or 3 nights in a row, his wife and little baby.” + +He had also thrown in an old Ford with the apartment. It was an early +Model A coupé with “a sassy little trunk on the back.” He had purchased +a new car--a Plymouth sedan--and, since Crosley “wanted a way to get +around,” he had decided to let him have the Ford. + + MR. NIXON: You gave this Ford car to Crosley? + + MR. HISS: Threw it in along with the apartment and charged the rent + and threw the car in at the same time. + + MR. NIXON: In other words, added a little to the rent to cover the car? + + MR. HISS: No; I think I charged him exactly what I was paying for + the rent and threw the car in in addition. I don’t think I got any + compensation. + + MR. STRIPLING: You just gave him the car? + + MR. HISS: I think the car just went right in with it. + +No, he had not given Crosley a bill of sale; “I think I just simply +turned it over to him.” He didn’t know whether the writer had recorded +the title or not. + +He had driven Crosley around Washington in the Ford on several +occasions. Once he had given him a lift to New York “when I was going +to make a trip to New York City anyway.” + + MR. STRIPLING: Was Mrs. Hiss along? + + MR. HISS: That I wouldn’t recall. She may have been. + + MR. STRIPLING: Did you go to Paoli? + + MR. HISS: If Mrs. Hiss was along; yes. + +His tenant had left the apartment when the lease expired in September. +Although, Crosley had never paid his rent, Hiss had lent him some money +but “never got paid back.” He had not heard of him since 1935. + + MR. STRIPLING: You wouldn’t say positively George Crosley and this + person are the same? + + MR. HISS: Not positively. + + MR. STRIPLING: You would not say positively? + + MR. HISS: I think they are not. That would be my best impression from + the photographs. + +At one point in the questioning, Hiss stated that both he and his wife +were amateur ornithologists. McDowell, who was no mean bird watcher +himself, asked him if he had ever seen a prothonotary warbler. The +witness replied that he had, “right here on the Potomac.” McDowell +replied that he once had observed one in Arlington. Hiss, lost in +reverie, seemed to forget that he was in a hearing room. “They come +back and nest in those swamps,” he told McDowell. “Beautiful yellow +head, a gorgeous bird. Mr. Collins is an ornithologist, Henry Collins. +He’s a really good ornithologist, calling them by their Latin names.” +Nixon brought him abruptly back to earth with a question about the +schools his son had attended from 1934 to 1937. + +The three-and a half hour hearing drew to a close with a lawyers’ +discussion between Hiss and Nixon as to the reliability of the lie +detector test. Nixon had asked the witness whether he was willing to +submit to Dr. Leonardo Keeler’s polygraph test, reminding him that +Chambers had agreed to do so. Hiss wanted to consult further. He had +“talked to people who have seen ... Dr. Keeler’s own test and that the +importance of a question registers more emotion than anything else.” +While he didn’t want to beg the question, he “would rather have a +chance for further consultation before I gave you the answer.” But he +would be interested in knowing if Mr. Nixon had ever used the test in +his own law practice. + + MR. NIXON: No; I have not. + + MR. HISS: But you do have confidence in it? + + MR. NIXON: Frankly, I have made a study of it in the last week before + I put the question. In fact, for the last two weeks I have been + studying it and have been in correspondence with Mr. Keeler. + +Ten days later, Hiss wrote to the chairman and informed him that since +“no Federal Court in the United States relies upon any ‘lie detector’ +... I do not at present feel in a position to make a final decision +with respect to the Committee’s suggestion.” + +Before Hiss left Washington, he was asked to return at 10:30 a.m. on +August 25th when he and Chambers would “have an opportunity to confront +one another.” The next morning, a member of the Committee’s staff +telephoned him at his New York office and asked him if he would be +able to meet with Mr. McDowell later that afternoon. Hiss replied that +he would. Shortly before 5:30 p.m., McDowell called and invited him +to come over to Room 1400 of the Hotel Commodore. Hiss asked Charles +Dollard, a colleague at the Carnegie Corporation, to accompany him, and +the two men walked the few blocks to the Commodore. When they entered +the hotel suite, Hiss was asked to sit in a chair facing Nixon and +McDowell, the only two members of the Committee present. + +A few minutes later, a door behind him opened and Chambers was ushered +into the room. Nixon asked the two men to stand and face each other. +“Mr. Hiss,” he said, “the man standing here is Mr. Whittaker Chambers. +I ask you now if you have ever known that man before.” + + MR. HISS: May I ask him to speak? Will you ask him to say something? + + MR. NIXON: Yes. Mr. Chambers, will you tell us your name and business? + + MR. CHAMBERS: My name is Whittaker Chambers. + + MR. HISS: Would you mind opening your mouth wider? + + Will you go on talking? + + MR. CHAMBERS: I am senior editor of _Time Magazine_. + + MR. HISS: May I ask whether his voice, when he testified before, was + comparable to this? + + MR. McDOWELL: I would say it is about the same now as we have heard. + + MR. HISS: I think he is George Crosley, but I would like to hear him + talk a little longer. + +After Chambers had read a portion of a _Newsweek_ article about +Truman’s failure to appoint a new Secretary of Labor to replace Lewis +B. Schwellenbach, Hiss announced that, although his voice was less +resonant than that of the man he had once known, “I believe ... that he +must be George Crosley.” But the man he had known in 1934 and 1935 had +had terrible teeth. The teeth of the man he was now asked to identify +“look to me as though they have been improved upon or that there has +been considerable dental work done since I knew George Crosley.” Nixon +asked Chambers whether he had “had any dental work since 1934 of a +substantial nature.” It seemed that he had, “some extractions and a +plate.” + +But Hiss still wasn’t certain. Chambers looked “very different in girth +and on other appearances--hair, forehead, and so on, particularly the +jowls.” But it was obvious to everyone in the room that he was beating +a slow but steady retreat. After Nixon made him go over his previous +testimony about subletting the 29th Street Apartment to the “Crosleys,” +He asked for--and received--permission to question his accuser. + + MR. HISS: Did you ever go under the name of George Crosley? + + MR. CHAMBERS: Not to my knowledge. + + MR. HISS: You did not? + + MR. CHAMBERS: No; I did not. + + MR. HISS: Did you ever spend any time with your wife and child in an + apartment on Twenty-ninth Street in Washington when I was not there + because I and my family were living on P Street? + + MR. CHAMBERS: I most certainly did. + + MR. HISS: Would you tell how you reconcile your negative answers with + this affirmative answer? + + MR. CHAMBERS: Very easily, Alger. I was a Communist and you were a + Communist. + +Finally, Hiss was “perfectly prepared to identify this man as George +Crosley.” When Stripling asked him if he thought he could produce three +people who would swear that they, too, had known Chambers as Crosley, +Hiss said that he would try. The only ones he could think of offhand +were Stephen Raushenbush, Robert Wohlford and Elsie Gullender who had +worked with him on the Nye Committee in 1935. But he couldn’t remember +whether Chambers had ever called on any of these people. + +McDowell then turned to Chambers and asked him whether he was prepared +to identify Hiss as the man “who was a member of the Communist Party at +whose home you stayed.” He was. + + MR. McDOWELL: You make the identification positive? + + MR. CHAMBERS: Positive identification. + +While Chambers was talking, Hiss rose from his chair and walked over +toward him. Livid with anger, he invited “Mr. Whittaker Chambers to +make those same statements out of the presence of this Committee +without their being privileged for suit for libel. I challenge you to +do it and I hope you will do it damned quickly.” By the time he had +finished hurling his gauntlet, he was so close to Chambers that Louis +J. Russell, one of the Committee’s investigators, threw himself between +the two men. “I am not going to touch him,” Hiss exclaimed. “You are +touching me.” McDowell ordered Hiss to sit down and the hearing was +adjourned for a few minutes to clear the air. + +The great confrontation was over. Before McDowell brought it to +its official close at 7:45 p.m., he announced that, in view of the +testimony, the full Committee would meet in Washington on August 25th +and that both men would be subpoenaed to appear before it. Hiss told +him that he would be happy to show up without putting the Committee to +the trouble of serving him with a subpoena. But there was still some +unfinished business, he told Messrs. McDowell and Nixon--he had been +asked to “make arrangements for Mrs. Hiss to come down from Vermont to +meet in executive session with a subcommittee” and he was prepared to +oblige if her presence was still required. Because Hiss was uncertain +about schedules, it was agreed that he would telephone Mr. Nixon at the +Commodore as soon as Mrs. Hiss arrived in town. + + MR. HISS: May I come with her? + + MR. McDOWELL: Yes. + + MR. HISS: Thank you. Am I dismissed? Is the proceeding over? + + MR. McDOWELL: Any more questions to ask of Mr. Hiss? + + MR. NIXON: I have nothing. + + MR. McDOWELL: That is all. Thank you very much. + + MR. HISS: I don’t reciprocate. + + MR. McDOWELL: Italicize that in the record. + + MR. HISS: I wish you would. + +Later that evening, Hiss called Nixon and told him that his wife had +arrived in town and would be available as originally scheduled. The +next morning, the Hisses, accompanied by Dollard, met with Nixon at +the Commodore. The hearing took only ten minutes. After Mrs. Hiss had +affirmed that she would tell the truth, she stated that she had known a +man by the name of George Crosley between 1934 and 1937. She remembered +that Crosley and his wife had spent a few days with them before moving +into their old apartment on P Street. As far as she could recall, she +had never taken a trip with this man whom she described as “a little +too smiley.” Before Nixon dismissed her, she informed him that, if he +wanted her opinion, the man who had called himself Crosley was nothing +but “a sponger.” + +The next act in what was rapidly beginning to have all the appearances +of a Greek tragedy was scheduled to take place on August 25th in the +Caucus Room of the Old House Office Building. Long before Chairman +Thomas gavelled the hearing into being at 10:30 a.m., the chamber was +filled to overflowing with more people than it had ever held before. +Television cameramen, newspaper photographers, radio commentators, +and the less spectacular members of the Fourth Estate crowded every +corner of the long room. Thomas welcomed them all in the name +of the Committee. “We are glad,” he announced, “to have as many +representatives of the American public as is possible to crowd into +this room today.” He was also mighty happy to put Hiss and Chambers on +view together before a nationwide audience. + +The first order of business was to determine whether anyone but Alger +Hiss had ever known of George Crosley’s existence. At the Commodore +confrontation, Hiss had suggested the names of three former Nye +Committee employees whom he thought might have run into Crosley +when the latter was scrounging for magazine fodder. Stripling’s +investigators had discovered that one was dead, another could not +be traced, and the third couldn’t remember ever having met anyone +named Crosley. A search of the records of the Library of Congress, +the Copyright Division and the Public Catalogue had uncovered only +two writers by that name--an obscure 1905 poet and a doctor who had +published a treatise on the effects of ultra-violet light. If George +Crosley had ever existed, he was now a case for the Missing Persons +Bureau. + +With Crosley out of the way, the Committee turned to Fords and +photostats. Hiss had previously testified that after he had purchased a +new Plymouth in the Spring of ’35, he had either given Crosley-Chambers +“the use of the car” or “the car outright.” According to the records of +the District of Columbia’s Motor Vehicles and Traffic Bureau, Hiss had +bought the Plymouth on September 7, 1935. If the dates were correct, +then Hiss had given Chambers the old Ford _before_ he had obtained the +Plymouth. + +Nixon was obviously fascinated by the business of the cars. Would Mr. +Hiss enlighten him as to whether he had sold, or given the car to +Crosley? + + MR. HISS: I gave Crosley, according to my best recollection.... + + MR. NIXON: Well, now, just a moment on that point. I don’t want + to interrupt you on that ‘to the best of my recollection’ but you + certainly can testify ‘Yes’ or ‘No’ as to whether you gave Crosley a + car. How many cars have you given away in your life, Mr. Hiss? + + MR. HISS: I have only had one old car of a financial value of $25 in + my life. That is the car that I let Crosley have the use of. + +When Mundt reminded the witness that, a week earlier, he had sworn that +he had “sold him an automobile,” Hiss promptly swallowed his words and +conceded that, if that’s what the transcript said, it must be correct. + +After Nixon had read into the record most of Hiss’ previous testimony +about the Ford roadster, he confessed to the chairman that he was +“amazed to hear Mr. Hiss say this morning that he can only testify to +the best of his recollection as to whether he ever gave Crosley a car +at all, that he is not sure as to whether or not he transferred the +car to Crosley, that he might have given it to him for his use only, +and that he is not even sure when the transaction occurred....” As far +as he was concerned, Hiss ought to “tell us exactly what did happen to +that car.” + +The witness was only too happy to oblige. His testimony, “based upon +the best recollection I have, is that I gave Crosley the use of the +car, as I gave him the use of the apartment.” He thought that the +transfer had taken place at the same time as he had subleased the +apartment to the Crosleys but it could have taken place “several months +after the rental transaction.” When Mundt asked him whether he had +ever given the Ford “to anybody else in any way besides to Mr. George +Crosley,” Hiss insisted that he could not answer the question “without +consulting the records.” + +The reason for the Committee’s preoccupation with the Ford’s +disposition became clear when Stripling called Louis Russell, one +of its own investigators. Russell testified that he had checked the +records of the District’s Director of Vehicles and Traffic and that he +had discovered that one Alger Hiss had assigned a 1929 Ford automobile +to the Cherner Motor Company on July 23, 1936. He identified a +photostatic copy of the assignment of title as a copy of the original +document which he had seen on file. It was signed by Hiss and notarized +by W. Marvin Smith, an attorney in the Solicitor General’s office. + +After some shilly-shallying about “photostatic signatures,” Hiss +admitted that “it looks like my signature to me, Mr. Chairman.” He was +also prepared to go a little further and own that Mr. Smith had indeed +notarized his signature. When Stripling produced a sales slip which +indicated that the vehicle had been sold by the Cherner Motor Company +to one William Rosen a few hours after Hiss had turned it in, that was +the last trace of the saucy little car that was carrying the Committee +to glory. + +Just before the noon recess, Hébert wanted to ask a question. + + MR. HÉBERT: Mr. Hiss, now that your memory has been refreshed by the + development of the last few minutes, do you recall the transaction + whereby you disposed of that Ford that you could not remember this + morning? + + MR. HISS: No, I have no present recollection of the disposition of the + Ford, Mr. Hébert. + + MR. HÉBERT: In view of the refreshing of your memory that has been + presented here this morning? + + MR. HISS: In view of that, and in view of all the other developments. + + MR. HÉBERT: You are a remarkable and agile young man, Mr. Hiss. + +In the afternoon, Hiss read a letter he had written to Chairman Thomas +the preceding day. After spelling out for the Committee his record as a +public servant, he read a list of questions which he wanted Chambers to +answer in public. He was informed that Chambers would “take the stand +directly after you finish on the stand today.” Before he subsided, Hiss +challenged Chambers “to make the statements about me with respect to +Communism in public that he has made under privilege of this Committee.” + +It had grown dark when Chambers took the stand, and Thomas ordered +the lights turned on. Led by Nixon and Stripling, the portly witness +repeated much of his former testimony about Hiss and Communism. Since +his predecessor on the stand had raised a question about the editor’s +mental condition, Nixon asked him whether he had ever been “treated for +mental illness.” + + MR. CHAMBERS: Yes; I have never been treated for a mental + illness--period. + + MR. NIXON: You have never been treated in a mental institution? + + MR. CHAMBERS: Never. + + MR. NIXON: Never. Have you ever been treated for a mental illness + or been in an institution during the past four years, which was the + charge made? + + MR. CHAMBERS: Of course, not; and anyone at _Time Magazine_ can tell + you that. + +Just before eight o’clock, Nixon wanted to know if Mr. Hiss was the +witness’ closest friend. Chambers replied that he “was certainly the +closest friend I ever had in the Communist Party.” + + MR. NIXON: Mr. Chambers, can you search your memory now to see what + motive you can have for accusing Mr. Hiss of being a Communist at the + present time? + + MR. CHAMBERS: What motive can I have? + + MR. NIXON: Yes, I mean do you--is there any grudge that you have + against Mr. Hiss over anything that he has done to you? + + MR. CHAMBERS: The story has spread that, in testifying against Mr. + Hiss, I am working out some old grudge, or motives of revenge or + hatred. I do not hate Mr. Hiss. We were close friends, but we are + caught in a tragedy of history. Mr. Hiss represents the concealed + enemy against which we are all fighting, and I am fighting. I have + testified against him with remorse and pity, but in a moment of + history in which this nation now stands, so help me God, I could not + do otherwise. + +The chairman’s gavel signified the end of the hearing. + +Two days later, Chambers accepted Hiss’s challenge to repeat his +accusations in public. When he appeared on the _Meet the Press_ radio +program, Edward T. Folliard of the _Washington Post_ asked him, “are +you willing to say ... that Alger Hiss is or ever was a Communist?” +When Chambers replied that “Alger Hiss was a Communist and may be now,” +Folliard wanted to know if he was “prepared to go to court to answer a +suit for libel or slander?” The answer was short and to the point. “I +don’t think Hiss will go to court.” + +On September 27th, Hiss proved him wrong by filing a $75,000 defamation +suit in a Baltimore federal court. Although Chambers announced that +he welcomed the litigation, he became convinced during some pre-trial +hearings that, unless he could document some of his charges, he was +reasonably sure of losing the suit. However, hidden behind a dumbwaiter +shaft in the Brooklyn home of Nathan Levine, one of his nephews, was a +bulky manila envelope. In it, were forty-seven typed copies of State +Department reports, five rolls of microfilm, and four memoranda in +Hiss’s handwriting. Chambers counted on these to save him from a civil +judgment. They didn’t fail him. + +William Marbury, Hiss’ attorney in the Baltimore libel suit, had asked +Chambers whether he could produce “any documentary proof of your +assertions?” On November 17th, Chambers complied by dumping the copies +of official documents and the Hiss memos on the long conference table +in Marbury’s office. These, he claimed, Hiss had turned over to him in +1937 after meeting a Colonel Bykov, a Soviet secret agent. Hiss would +bring classified reports home for his wife to type. He would return the +originals to the files the next morning while the typed copies would be +delivered to Chambers for transmission to Bykov. + +Hiss immediately directed his attorneys to turn the documents over +to the Department of Justice. Alexander Campbell, chief of Justice’s +Criminal Division, rushed up to Baltimore and took possession of all +the papers. At the same time, he ordered John F. X. McGohey, the United +States Attorney in New York, to convene the Federal Grand Jury. But, +with the exception of a provocative little item in Jerry Kluttz’ column +in the _Washington Post_ that “some startling information” had been +uncovered in the Baltimore libel suit, what Chambers was later to refer +to as his “lifeline” didn’t seem to have made much of a stir. + +Bert Andrews of the _New York Herald Tribune_ thought that he smelled +a rather large rat. He decided to play his hunch and, on December 1st, +cabled Nixon, who was on the high seas bound for a Central American +vacation, that a “bombshell” had exploded in Baltimore. Nixon ordered +Stripling to visit Chambers at his Maryland farm where the latter +blandly admitted that he had been less than frank with the Committee. +Twenty-four hours later, Nixon, with the help of the Coast Guard, was +back in Washington, and Chambers had turned over the five rolls of +microfilm which he had cached in a pumpkin in his backyard to William +Wheeler and Donald T. Appell, two Committee investigators. Three of the +rolls, which had not yet been developed, were still in their aluminum +cylinders while the developed rolls were wrapped in oilpaper bags. + +On December 3rd, the day before Nixon & Company announced its strike, +the New York Federal Grand Jury was called back into session. Its +first step was to subpoena both Hiss and Chambers, a step that forced +the Committee--most regretfully--to cancel a scheduled public hearing. +On December 15th, the grand jurors, by one more than a bare majority, +returned a two-count indictment against Alger Hiss. In it, it was +charged that he had lied twice in his testimony: once, when he denied +that he had turned State Department documents over to Whittaker +Chambers, and again when he swore that he had not seen his rotund +accuser “after January 1, 1937.” According to the grand jury, Hiss had +delivered Government reports to Chambers in February and March of 1938 +and had seen him during those months. + +Hiss’ trial was originally scheduled for January 24, 1949 but, because +of six adjournments, it was not until May 31st that it officially began +with the selection of a ten man--two woman jury. McGohey had entrusted +the case for the prosecution to the hands of Thomas F. Murphy, an +Assistant United States Attorney noted for the thickest and droopiest +mustache in New York County. Hiss had selected Lloyd Paul Stryker, a +white-haired veteran of the criminal courts, as his attorney-in-chief. +There were others--Thomas J. Donegan, who had been sent by the Attorney +General to lend a helping hand, and Edward C. McLean, who used up a +chair at the defense table--but it was Murphy and Stryker who carried +the biggest swords. The judge was Samuel H. Kaufman, a wizened little +man who could hardly see over the edge of the bench without rising from +his abundantly stuffed chair. + +The jury had been selected in less than three hours. Early on the +afternoon of the trial’s first day, Murphy heaved his 6’ 4” bulk out of +his chair and opened the Government’s case. He was going to prove, he +announced, that Hiss had lied as the grand jury charged. Although he +intended to corroborate Mr. Chambers’ testimony, he admitted, somewhat +over-generously, that “if you don’t believe Mr. Chambers’ story, we +have no case under the Federal perjury rule.” Stryker was more than +willing to do battle on these terms and he assured the jury that he +would do everything in his power to prove to their satisfaction that +the man who accused Alger Hiss could only be described by the term +used “in the warm southern countries” to warn of the approach of +lepers--‘Unclean, unclean!’ + +Chambers was the Government’s first witness. Dressed in a baggy +blue suit, he wearily repeated the testimony he had given on so +many occasions in the past. He described his years in the Communist +underground, his intimate friendship with the Hisses, the help the +defendant had given him in obtaining secret State Department papers, +and his own torturous break with the Party in 1938. This was all +old hat to those who had followed the House Committee hearings, but +suddenly Chambers added something new. He swore that Hiss had lent him +$400.00 in the fall of 1937 to buy a new car for a trip to Florida, a +trip that was to mark his disappearance from the Communist scene. + +After Chambers had identified the Baltimore documents and the pumpkin +papers as having been received from Hiss, Murphy asked him when he had +last seen the defendant. + + A. I saw Alger Hiss around Christmas, 1938. + + Q. And where did you see him? + + A. I saw him at his home on Volta Place. + +The Hisses had lived at 3415 Volta Place in northwest Washington from +December 29, 1937 to November 1, 1943, and Chambers claimed that it was +at this house that he would pick up the reports that Hiss had pilfered +from State’s files. At first, all papers were photographed in Baltimore +by a man named Felix Inslerman, but the procedure was changed in late +’37 when Bykov ordered Priscilla Hiss to type copies of the reports. + +On his last trip to Volta Place, he had tried to convince Hiss to join +him in breaking with the underground. His friend had told him that he +was sorry that Chambers, whom he knew only as Carl, was leaving the +party because he had heard that “a new and more important post was +to be given to me.” Before they had said goodbye, Hiss gave Chambers +a wooden rolling-pin as a Christmas present for the latter’s infant +daughter. One year later, in a conversation with Assistant Secretary +of State Adolf A. Berle, Jr., he had named Hiss “as a member of the +Communist Party.” + +Stryker didn’t waste any time beating around the bush when Murphy +turned the witness over to him. He wanted to know if Mr. Chambers +knew what an oath was. His man did. “An oath is a declaration which a +man makes when he promises to tell the truth.” He agreed with Stryker +that “in our courts it is an affirmation made by a man who calls +on Almighty God to witness the truth of what he says.” But, Stryker +thundered, wasn’t it a fact that he had taken an oath in 1937 to +“support and defend the Constitution of the United States against all +enemies?” He had. + + Q. That was false from the beginning to the end, was it not, Mr. + Chambers? + + A. Of course. + + Q. And it was perjury, wasn’t it? + + A. If you like. + + Q. And you did it in order to deceive and cheat the United States + Government ... is that not true? + + A. That is correct. + + Q. You were an underhanded enemy of this country doing what you could + to aid a foreign country and overthrow our constitution by force and + violence? + + A. Yes. + +Chambers admitted that he had used more than seven aliases between +1924 and 1938 when he was in the underground. Furthermore, he had lied +to the Dean of Columbia University, had stolen books from numerous +libraries, and had lived with several women including a New Orleans +whore with the fanciful name of “One-Eyed Annie.” While he was at +Columbia, he had written an anti-religious play that was so offensive +that he had been expelled from the university. + +Chambers was prepared to admit everything--that he had been a liar, +a thief, an atheist, a spy and a cheat. But he insisted that he had +repented when he broke with the Communists in April of 1938. This was +the opening Stryker had been waiting for. + + Q. Did you have a high, God-fearing man’s regard for an oath in August + of 1948? + + A. Yes. + + Q. Did you in October, 1948, testify before the grand jury in this + building? + + A. I did. + + Q. When you testified before the grand jury, you were asked whether + there was any espionage and you answered that there was not? + + A. I answered I had no knowledge of it. + + Q. Was that answer true or false? + + A. That answer was false. + + Q. Then you admit that you testified falsely and committed perjury + before the grand jury in this building, is that right? + + A. That is right. + +After getting his pliable witness to admit that he had written erotic +poetry and that his brother Dick had committed suicide after two +previous attempts, Stryker called it a day. Murphy tried to repair some +of the damage by asking Chambers to explain why he had perjured himself +before the grand jury as late as 1948. The ex-_Time_ editor (he had +resigned on December 10th), maintained that he had done so “to preserve +from injury in so far as I could all individuals in the past in that +conspiracy.... I was particularly anxious not to injure Mr. Hiss any +more than necessary out of grounds of past friendship and because he is +by widespread consent a very able man. Therefore, I chose to jeopardize +myself rather than reveal the full extent of his activities and those +of others.” Perjury was never more nobly explained away. + +Before he called Esther Chambers, Murphy put a variety of witnesses on +the stand to buttress the accuser’s story. A bank official testified +that Mrs. Hiss had withdrawn $400.00 from a joint account on November +17, 1937, while an automobile salesman said that Mrs. Chambers had +purchased a Ford sedan four days later. After some typewritten notes +and reports sent to various people by the Hisses were identified, an +Oriental rug dealer by the name of Edward H. Touloukian said that he +had delivered four Bokhara rugs to a Dr. Meyer Schapiro just after +Christmas of 1936. Since Chambers had sworn that he had been ordered +by Colonel Bykov to give the defendant a rug, Dr. Schapiro’s testimony +that he had bought the rugs from Touloukian at the editor’s request and +with his money was of more than passing interest. + +At last, the stage was set for Mrs. Chambers’ appearance. A tiny +forty-nine-year-old woman dressed in an ill-fitting gray suit, she +perched nervously in the witness chair, waiting for the indignities she +was sure were in the offing. Under Murphy’s gentle questioning, she +revealed a wealth of domestic detail about the Hisses that complemented +the story told by her husband. The two families had been the best of +friends, and she could even recall a wonderful New Year’s Eve party +at Volta Place in 1937. Alger and Priscilla called her Lisa and her +husband, Carl. When the judge asked her what their last name had been +during this period of friendship, the witness stated, “We never had a +last name to them.” + +Stryker spent two days trying to destroy a woman who had much more +endurance than her frail physique would have suggested. While she +admitted that she didn’t have “a very good head for figures or dates,” +she insisted that the Hisses and the Chamberses had known each other +intimately and that she had once painted a portrait of Timmy Hobson. +The relationship had been so close that Priscilla Hiss had willingly +permitted one of her best linen towels to be used as a diaper by one of +the Chambers infants. + +During most of Stryker’s cross-examination, Mrs. Chambers, although +frequently close to tears, managed to maintain her composure. It was +only when the defense attorney began to attack her husband that her +voice rose above a whisper. In October of 1937, when she had applied +for a scholarship for her daughter, she had referred to Chambers as +a “freelance writer and translator.” When Stryker asked her whether +she “didn’t think it was much of a misrepresentation to present your +husband to this school as a decent citizen,” she snapped back: “I +resent that. My husband is a decent citizen, a great man.” + + Q. Was he a great decent citizen in October, 1937? + + A. When he was in the underground? + + Q. I just asked a simple question. Was he a great and decent citizen + in October, 1937, yes or no? + + A. Yes, and always. + +On her direct examination, Mrs. Chambers had first testified that the +New Year’s Eve party at Volta Place had taken place at the end of +1936. When it was pointed out to her that the Hisses hadn’t moved to +that address until December 29, 1937, she had pushed the date one year +ahead. On cross, she was sure that the New Year’s Eve party which she +had in mind had taken place at 1245 30th Street and not at Volta Place. +She now remembered that it was a housewarming that had occurred at the +latter house. + +After Mrs. Chambers had stepped down, Murphy decided that it was time +to introduce the State Department documents. Photographic enlargements +were exhibited on a platform which was set up on the witness box. +Walter Anderson, the chief of State’s records branch, identified the +typewritten papers as cables received by Foggy Bottom during the first +three months of 1938 from American diplomats scattered from Tokyo to +Buenos Aires. They covered subjects as unconnected as Manchukuoan +finances, Nazi relations with Austria, and British ship construction +plans. The microfilm documents were, in the main, interdepartmental +papers from the files of the Trade Agreements Section. + +After a Miss Eunice A. Lincoln, Assistant Secretary of State Francis +Sayre’s private secretary, had identified four of the Baltimore memos +as being in the defendant’s handwriting, Murphy called Ramos S. Feehan, +an FBI typewriter expert. It was the latter’s opinion that all but +one of the Baltimore documents had been typed on the same machine as +letters written by the Hisses during the thirties. Stryker was not +prepared to dispute Feehan’s conclusions and conceded their accuracy. + +With the documents out of the way, Murphy turned to the task of +connecting Chambers with their theft from the State Department. For +this purpose, he summoned Henry Julian Wadleigh, an Oxford alumnus, +who freely admitted that he had begun “to take out documents and give +them to unauthorized people as soon as I joined the State Department.” +Although he had not given any of the papers in evidence to Whittaker +Chambers, he had turned others over to him. However, he insisted that +he had limited his thievery to papers which passed over his desk in the +Trade Agreements Section. He, too, had been given a rug by Chambers in +1937. + +It took Murphy three weeks to put in his case. Stryker’s defense was +confined to showing 1.) that Hiss was a man of sterling character, and +2.) that Chambers was as chronic a liar as had ever lived. To prove the +first proposition, he paraded to the stand as impressive a group of +character witnesses as ever graced an American court. There was John W. +Davis, the unsuccessful 1924 Democratic Presidential candidate, Charles +Fahy, a former Solicitor General, Admiral Richard Hepburn, and Supreme +Court Justices Felix Franfurter and Stanley Reed. They all agreed that +Alger Hiss’s reputation “for integrity, loyalty and veracity” was +excellent. + +These imposing luminaries were followed by Mrs. Claudie Catlett, a +rather stout Negress, who had worked as a maid for the Hisses during +their early days in Washington. She remembered that Chambers had come +to the P Street house once and that he had given his name as “Crosby, +like in Bing.” When her employers had moved to either Thirtieth Street +or Volta Place, they had given her children an old typewriter. But +Murphy forced her to admit that “I don’t remember nothing about the +typewriter.” In fact, it hadn’t been until 1949 that one of her sons +told her that they had received a typewriter from the Hisses. + +The Catlett boys, Raymond and Perry, succeeded their mother. Raymond +had helped Ed McLean trace the machine--an ancient Woodstock--to one +Ira Lockey’s house where the lawyer had purchased it on April 16, 1949, +for $15.00. Raymond had kept the typewriter for a year or two after the +Hisses gave it to him and then he had let his brother’s wife take it. +She had transferred it to his sister and he lost track of it after that +until it had been found in Lockey’s house. But he was unable to tell +Murphy in what month or year he had received the machine. “I haven’t +got no papers, no secretary to copy all that stuff down,” he explained. + +Perry Catlett recalled that the Woodstock had been broken when he first +saw it. He had taken it to a repair shop on K Street but some man +there had told him that it wasn’t worth fixing. He was certain that +the typewriter had been given to his family when the Hisses moved to +Volta Street on December 29, 1936. But when Murphy asked him, “What if +I tell you that the shop on K Street wasn’t opened for business until +September, 1938?,” Perry shook his head and replied, “I don’t know the +time.” + +When Hiss, neatly dressed in a tan summer suit, finally took the stand, +he denied almost everything that Chambers had said on his direct +examination. He said that he had known a man named Crosley between +1934 and 1936 but that he had never, until the summer of 1948, ever +associated him with Whittaker Chambers. When Stryker asked him if he +had ever been a member of the Communist party “or a fellow traveler or +a sympathizer,” he quietly answered, “I am not and never have been.” +He had never given any “restricted, secret or confidential documents +of the State Department of any kind” to Chambers “or any other +unauthorized person.” Stryker, after taking his client from his birth +in Baltimore to the high point of his government career as General +Secretary to the San Francisco Conference, wound up with a crescendo. + + Q. Mr. Hiss, you have entered your formal and solemn plea of not + guilty to the charges here against you, have you not? + + A. I have. + + Q. And in truth and in fact you are not guilty? + + A. I am not guilty. + +With a perfunctory “your witness,” Stryker returned to the counsel +table. + +Never once during his cross-examination did the prosecutor refer to +the defendant as anything but “Mr. Witness.” He took Hiss through the +entire period of his acquaintance with Crosley-Chambers, pointing +up, in the process, what he obviously regarded as a bold-faced +fabrication--the gift of the Twenty-eighth Street apartment and the +Ford. As for the Woodstock typewriter, didn’t Hiss tell the FBI agents, +who had questioned him on December 4, 1948, that he thought that his +wife had given it away “subsequent to 1938?” He might have said that +but “my knowledge today is that we gave the typewriter to the Catletts +at the time when we moved from 30th Street to Volta Place in December, +1937.” Finally, after eight long hours, at the end of which he was +trying to make some hay out of the fact that the witness had not +insisted on a lie detector test, Murphy was through. + +Priscilla Hiss, a thin, graying woman, followed her husband. She, too, +denied any intimacy with the Chamberses as well as any typing of State +Department documents. She identified the Woodstock, which sat on the +defense table, as the machine her father had given her in the twenties, +but insisted that she had never used it after buying a portable in the +fall of 1937. Although she had told the Federal Grand Jury that she had +given the Woodstock to either a junk dealer or the Salvation Army, the +Catletts’ testimony had reminded her that she had turned it over to +them just before the move to Volta Place. + +Murphy scored early. After the witness denied that she had been a +Socialist in 1932, he produced photostats of her registration showing +that he had indeed enrolled as such that year. When he asked her +whether she knew “that the records of the Socialist Party Morningside +Branch list you as a member,” she replied, with some heat, that she did +not. Lastly, remembering that Mrs. Chambers had sworn that Prossy, as +she called her, had enrolled at Baltimore’s Mercy Hospital “to learn +nursing,” he asked Mrs. Hiss whether this was true. It was not. Then +how did she explain a letter which she had written on May 25th to the +University of Maryland, applying for admission to a course in inorganic +chemistry as a prerequisite for “Mercy Hospital’s training course +in medical technology?” All the witness could say was that “medical +technology” was different than “nursing.” + +Stryker’s last witness was a mysterious man who had been sitting +just behind the courtroom’s rail making copious notes as Chambers +was testifying. At Murphy’s request, he had been identified on the +trial’s third day as Dr. Carl Binger, a psychiatrist. After posing a +hypothetical question which included every dereliction in Chambers’ +past life, the defense attorney asked Binger, “now, assuming the facts +as stated in the question to be true and taking into account your +knowledge of his writings and translations, have you as a psychiatrist +an opinion within the bounds of reasonable certainty as to the mental +condition of Whittaker Chambers?” Before Binger could answer, Murphy +stormed up to the bench to remind Kaufman that Chambers’ credibility +was the central issue of the case and that the psychiatrist’s answer +would be a usurpation of the jury’s function. The judge agreed and the +good doctor walked out of the courtroom with the answer to Stryker’s +question locked behind his beetled brow. + +The defense promptly rested and Murphy called Burnetta Catlett, Claudie +Catlett’s daughter, as his first rebuttal witness. Burnetta had begun +working for a Doctor Easter when she was still in high school and had +taken the Woodstock with her to type her homework. + +When her employer died, she had left the machine at his house. A Vernon +Marlow had found it among the doctor’s effects and finally passed it on +to Ira Lockey in return for a hauling job the latter had done for him. +Lockey had turned it over to his daughter who had used it to practice +typing until she moved to New York in October of 1948. Finally, Ed +McLean, Stryker’s cocounsel, had bought it from Lockey for fifteen +dollars barely two months before the trial. + +Since Perry Catlett had testified that he had taken the Woodstock to a +repair shop on the corner of Connecticut Avenue and K Street, Murphy +produced one Henri P. Henry, a real estate operator who managed the +building. Henry was sure that there had been no typewriter repair +stores on Connecticut Avenue at the time, although he did remember that +the Woodstock Typewriter Company had rented a second-floor office on +September 15, 1938 for two years. When the defense intimated that the +company may also have had an office on K Street, a block or so away, +just before it moved into Henry’s building, Murphy produced another +real estate man who swore that it had done nothing more than sign a +lease for the K Street quarters which had been cancelled on June 18, +1938. + +John Foster Dulles was easily the Government’s most impressive witness. +He said that he had sounded out Hiss at the end of 1945, when both men +were en route to England for the first meeting of the United Nations, +as to whether he contemplated leaving public life. Although it was +Hiss’s recollection that Dulles had, during this voyage, “asked me +whether I would be interested in becoming President of the Carnegie +Endowment,” the latter denied that he had done so. “I don’t think,” he +testified, “I discussed at that time with him the presidency of the +Carnegie Endowment, because I was only one of twenty or more trustees, +and the trustees did not until their main meeting take up definitely +the matter of seeking a president.” + +In December of 1946, after Hiss’ election as President of the Carnegie +Endowment had been announced, Alfred Kohlberg, the late publisher of +_Plain Talk_, wrote to Mr. Dulles that he had reason to believe that +Hiss had been a Communist. Although Hiss had testified that Dulles had +contacted him at once and asked him for help in preparing an answer to +Kohlberg, the witness insisted that “I did not discuss with Mr. Hiss +about the letter ... until some days later on.” As far as the letter’s +writer was concerned, “I never wrote a letter to Mr. Kohlberg.” + +Nothing daunted, Kohlberg wrote two more letters to Dulles who then +asked Hiss to come to his office for a conference. At that meeting, +Hiss had testified, Dulles had told him that Kohlberg was the author +of the letters he had received. In his testimony, Dulles didn’t say +whether he had mentioned Kohlberg’s name or not. As he remembered +the conversation, Hiss had informed him that he had just testified +before the Federal Grand Jury and that “he had been asked ... of an +acquaintanceship with a number of people.” + +On the evening of August 3, 1948, the day on which Chambers first +testified before the House Committee, Hiss (if he was to be believed) +had telephoned Dulles, who was then Chairman of the Board of the +Carnegie Endowment. In view of Chambers’ testimony, he had offered +to resign if Mr. Dulles thought that his fellow trustees would be +unduly disturbed by the allegations that the _Time_ editor was making. +Although Dulles could not remember any such conversation, he did recall +that he had had a discussion with Hiss late in August. “Mr. Hiss said +... that he had come to the conclusion that he had probably better +resign, but that it would be questionable whether he ought to resign +while the hearings were going on, because that might seem to be some +admission on his part--and I quite agreed with him that any action like +his resignation ought not to take place while the hearings were going +on.” Hiss did indeed tender his resignation on December 12, 1948, but +it was not accepted and he had remained as President until his term +expired on May 31, 1949. + +After Murphy tried--unsuccessfully--to put Hede Massing, the former +wife of Communist Gerhard Eisler, on the stand, the trial ground to +a halt in a welter of minor rebuttal witnesses on both sides of the +fence, none of whom contributed a great deal to anyone’s store of +essential information. An FBI agent who had interviewed Hiss in 1946, +the assistant registrar of the University of Maryland, a counselor at +a camp attended by Hiss’ stepson, and the proprietor of a small summer +hotel in Chestertown, Maryland, who, because of illness, testified by +deposition, did little more than add a few hours to a trial that was +already into its sixth sweltering week. + +Stryker’s summations lasted more than four hours. As far as he was +concerned, it was simply a question of Chambers’ credibility. Murphy, +he reminded the jury, had summed it up best himself in his opening when +he had said that “... if you don’t believe Chambers then we have no +case under the federal perjury rule.” And who could believe a chronic +perjurer, a fornicator, a confessed spy, an atheist, a pornographic +poet and a blasphemer? “The case comes down to this,” he told his +twelve auditors, “who is telling the truth? Alger Hiss or Chambers?” +There was no doubt as to how he had answered this question for himself. +“I would not believe Chambers on a stack of Bibles if the FBI stacked +them as high as this building!” + +Toward the end, Stryker’s face was as red as the hand with which he +relentlessly pounded the rail of the jury box. “Ladies and gentlemen,” +he begged them, “if I have done anything that you don’t like, if I +have offended you, any one of you, in any way, hold it against me, not +against Alger Hiss.” Exhausted and shaken, he turned slowly and looked +toward the counsel table where his impassive client sat. “Alger Hiss, +this long nightmare is drawing to a close. Rest well. Your case, your +life, your liberty are in good hands. Thank you, ladies and gentlemen.” + +Murphy, retreating somewhat from his ill-chosen definition of the +federal perjury rule, confessed that he wasn’t resting his case on +Chambers alone. There were the documents and the Woodstock. If Hiss’ +contradictions about the apartment and the car he had turned over +to Chambers weren’t convincing enough, how could the handwritten +documents be explained away? Even the defense’s location of the missing +typewriter was suspect--if the FBI couldn’t find it, why was it so +ridiculously easy for Ed McLean to trace it to Ira Lockey’s house? “I +submit that two things must be clear; one, that the typewriter was +in the possession of the Hiss family until at least Mr. Chambers’ +defection, until he left the Party; and two, that the Catletts had the +typewriter for some time after that....” + +“We have shown you here,” he thundered at the jury, “the typewriter, +the original State Department documents, the documents in this +case--three solid witnesses.” The dozen or so character witnesses the +defendant had put on the stand couldn’t change that. “Mr. Stryker +said that he was going to call the shade of Oliver Wendell Holmes +and have the ghost of that revered Justice testify on behalf of the +defendant. And I said to myself, if he is going to call the shade of +Justice Holmes, there are a couple of shades that I would like to call +here. One man’s name was Judas Iscariot and the other’s Major General +Benedict Arnold.” He paused a moment to let that sink in. “But let +me dwell a moment on reputation. I dare say that Judas Iscariot had a +fairly good reputation. He was one of the Twelve. He was next to God, +and we know what he did. Benedict Arnold came from a fine family. He +was made a major general and sold out West Point. He wasn’t caught. +But, if he had been caught, don’t you think he could have had George +Washington as a reputation witness?” + +He was almost through. “You are the second jury to hear this story,” he +told them. “The Grand Jury heard the same story. The Grand Jury heard +this traitor and Mr. Chambers, and that Grand Jury indicted Hiss. It +indicted Hiss because he lied. He lied to them and I submit he lied +to you. The Grand Jury said he lied twice on December 15th. And as a +representative of 150,000,000 people of this country, I ask you to +concur in that charge of the Grand Jury. I ask you as a representative +of the United States Government to come back and put the lie in that +man’s face.” + +The jury retired at 4:20 on the afternoon of July 7th. Six hours +later, after their foreman had informed Kaufman that there was no +possibility of reaching a verdict that night, the jurors were sent to +a hotel. At noon the next day, they filed back into the jury box to +listen to Kaufman’s repetition of the portion of his charge dealing +with corroborative and circumstantial evidence. Three hours later, the +foreman asked a bailiff to deliver a note to the judge informing him +that “the jury feels that it cannot arrive at a verdict.” At 4:45, he +forwarded a similar communication. Kaufman begged them to try once +more, but at 8:55 they announced that “the jury finds it impossible to +reach a verdict.” This was enough for Kaufman who discharged them “with +the thanks of the court.” The trial was over. + +Four months later, the United States of America _versus_ Alger Hiss +encored, this time with District Judge Henry W. Goddard at the helm. +Tom Murphy was still around but Stryker had yielded to Claude B. +Cross, a quiet, unassuming Boston elder who looked as if he had never +pounded a counsel table in his life. A jury of seven women and five men +was quickly selected and, on the afternoon of November 19, 1949, the +Government began its second go-round in its attempt to convict Alger +Hiss of perjury. + +With only minor discrepancies, most of the witnesses who had testified +at the first trial repeated their stories. But there were parvenus. +Goddard was determined to admit any evidence that was vaguely relevant +and several of the witnesses who had been rejected by Kaufman were +permitted to tell their once-verboten stories. Hede Massing, for +instance, said that she had met the defendant in 1935 at the Washington +home of Noel Fields, an erstwhile League of Nations official. Mrs. +Massing, an ex-Communist, who admitted that “I have a bad memory,” +stated that she and Hiss had had a conversation as to which one of them +was going to win Fields for his cell. + +Henrikas Rabinavicius, a former Lithuanian diplomat, later testified +for the defense against Mrs. Massing. According to him, he had met her +at the home of Eugene Lyons in the Fall of 1949. There, she told him +that, during the early thirties, she had been assigned by the Party +“to endeavor to contact young men in the Department of State.” She had +carefully concealed her Communist affiliation from her “young men,” +she had told him, “because that would have frightened them away from +her.” When Rabinavicius had intimated that he doubted the truth of her +remarks, she threatened to write a devastating article about him. + +William Rosen, the elusive vice-president of the Cherner Motor Company, +to which the old Hiss Ford had been transferred, had been located by +Murphy in California after the first trial. He proved to be a far from +loquacious witness. Outside of admitting that he did not know either +J. Peters or Alger Hiss, he refused to answer every question Murphy +threw at him on the ground that “any answer I may give may tend to +incriminate me.” When Rosen stepped down, Goddard warned the jury it +was not to draw any inference unfavorable to Hiss because the witness +had claimed his constitutional immunity. + +Sergeant George Norman Roulhac had been stationed in the Aleutians +during the first trial. Murphy now called him to prove that the +Woodstock had not been in the Catletts’ possession until after the date +of the most of the typewritten documents and not on December 29, 1937, +as Priscilla Hiss had claimed. Roulhac had signed the lease for Mrs. +Catlett when she had moved to P Street on January 17, 1938, because the +rental agent would not deal with a colored lady. He was sure that he +had not seen any typewriter at P Street until “about three months after +we lived there.” The machine he had seen in a downstairs hallway was +“the same design” as the Woodstock he had been shown in court. + +Cross called Dr. Binger back to the wars. The answer to the famous +hypothetical question that Kaufman had blocked in July was about to be +delivered with Goddard’s blessing. Binger waited patiently until the +question was in the record, and then, with his eyes on the ceiling, +opined that “Mr. Chambers is suffering from a condition known as a +psychopathic personality, a disorder of character the distinguishing +features of which are amoral and social behaviour.” One of the most +significant symptoms of this malady were “chronic, persistent, and +repetitive lying and a tendency to make false accusations.” However, he +admitted to Murphy that doctors frequently disagreed on diagnosis and +that he had been wrong more than once in his own professional life. + +On the trial’s last day, Murphy produced his one surprise +witness--Edith Murray who had worked as a maid for the Chamberses at +their two homes in Baltimore from the Fall of 1934 to the Spring of +1936. She swore that she had seen Mrs. Hiss there four times and the +defendant once. However, when she had first been shown a photograph of +Mrs. Hiss by FBI agents, she was not quite sure of her identity. “They +asked me did I know this lady, and I said it looks like someone that I +know. It looked like--I thought maybe it was an actress or something. I +say it looks like someone I know, but I just couldn’t remember at that +time.” + +On November 17th, the first day of the trial, she had been stationed +in the corridor outside of the courtroom. She was told by the FBI +agents who had brought her to New York that “all they wanted to do was +bring me up here to see if I could recognize the woman that was in the +picture and the man on the picture.... I just stood out in the hall and +it was a crowd of people. They asked me did I see anybody in the crowd +that I know, and I looked around, and I didn’t see anyone at this time, +and stood there; so then, after a while, in the back of me where I was +standing was an elevator, in the back of me, like, and I looked around, +and then I see Mr. and Mrs. Hiss come over, and right away I knew them.” + +The jury filed out at 2:50 p.m. on January 20th. On the afternoon +of the next day, it found the defendant “guilty on the first count +and guilty on the second.” Four days later, Goddard sentenced him +to five years on each count, the terms to run concurrently. A few +minutes earlier, Hiss had thanked his Honor for allowing him to say a +few words. He denied again that he was guilty of the charges against +him and promised that “in the future the full facts of how Whittaker +Chambers was able to carry out forgery by typewriter will be disclosed.” + +Goddard set $10,000 bail and paroled Hiss in Cross’ custody. In +December, the Court of Appeals for the Second Circuit affirmed the +conviction. When the United States Supreme Court refused to intervene, +the last door was closed. On March 22, 1951, Alger Hiss entered the +federal penitentiary at Danbury, Connecticut. What Whittaker Chambers +once called “the spectacle of tragedy” had run its course. + + + + +8 + +_They Gave the Bomb to Russia_ + +The United States of America + +_versus_ + +Julius Rosenberg, Ethel Rosenberg and Morton Sobell + + +Early on the evening of Wednesday, September 5, 1945, Igor Gouzenko, +an obscure twenty-six-year-old cipher clerk in the Russian Embassy +in Ottawa, walked into the editorial offices of the _Ottawa Journal_ +with an armful of secret Soviet files. When the Canadian authorities, +with Gouzenko’s help, translated the 109 documents he had pilfered, +they discovered that the country was honeycombed with Russian spies +who were part of an extensive network that covered Great Britain, the +United States and Canada. Perhaps the most important name that was +found in the Gouzenko papers was that of Allan Nunn May, a British +atomic scientist, who was then working at the Montreal Laboratory of +the National Research Council. It was through Dr. May’s efforts that, +on August 9, 1945, Colonel Nicolai Zabotin, the Russian Embassy’s +military attaché, was able to report to Moscow that he had obtained +samples of Uranium 233. May was arrested when he returned to England in +late September and, after pleading guilty to a charge of violating the +Official Secrets Act, was sentenced to ten years in prison. + +The secret service agents who examined Dr. May’s papers had found the +name ‘Fuchs’ scrawled on several pages of notes. For some reason, no +attention was paid to this name although Dr. Klaus Emil Julius Fuchs, a +German-born physicist who was a naturalized British subject, had just +returned to England from a tour of duty with the Manhattan Project, the +American atomic bomb station at Los Alamos, New Mexico. It wasn’t until +four years later that Fuchs was arrested, and immediately confessed +that he had been supplying atomic information to a Soviet courier who +regularly visited him in New York and New Mexico. He did not know the +name of the courier but indicated that he had appeared to have an +excellent knowledge of chemistry. + +When he was shown photographs of various American chemists who were +suspected of espionage, he had pointed to one and said, “That is the +man!” The photograph he had identified was that of a biochemist named +Harry Gold who was employed by the Pennsylvania Sugar Company in +Philadelphia. It was Gold, Fuchs said, who had met him in various parts +of the United States and to whom he had turned over certain information +for transmission to Anatoli A. Yakovlev, a Russian diplomatic agent in +New York. He had first met Gold in Woodside, Queens, in June of 1944, +and continued these clandestine meetings until he was transferred to +Los Alamos early in 1945. + +Upon Gold’s apprehension, he admitted that he had been working as +a Soviet espionage agent for more than fifteen years. He had first +met Yakovlev, a long-nosed young man who walked “with somewhat of a +stoop” and who was known to him only as ‘John,’ in March of 1944, at a +Manhattan restaurant. Yakovlev had ordered him to contact Fuchs, who +was then working in New York with a British-American atomic team. At +the Woodside meeting, the physicist had told Gold that he was “going to +give me information. This information was to relate to the application +of nuclear fission to the production of a military weapon.” A few weeks +later, the two men had met in Brooklyn’s Borough Hall area where Fuchs +gave the courier “a package of papers” for transmittal to Yakovlev. + +Just before Fuchs left for Los Alamos in February of 1945, Gold saw +him in Cambridge, Massachusetts. In addition to the usual package of +documents which he had turned over to Gold, Fuchs “made mention of a +lens which was being worked on as a part of the atom bomb.” Before the +two parted company, they made a date to meet in Santa Fe in June. When +Gold told Yakovlev about the lens, the Soviet agent “was very agitated +and told me to scour my memory clean so as to elicit any possible +scrap of information about this lens.” + +Four months later, Gold and Yakovlev met in Volks’ Cafe on 42nd Street +and Third Avenue. After the details about meeting Fuchs in Santa Fe had +been discussed, Yakovlev told Gold that, on the same trip, he would +also have to visit Albuquerque where he was to see an American soldier +named David Greenglass who was stationed at Los Alamos. He was to tell +Greenglass that “I come from Julius” and show him a piece of cardboard +from a dessert box. “Yakovlev told me that the man Greenglass ... +would have the matching piece of cardboard.” Either Greenglass or his +wife would have some information for him and he was given an envelope +containing $500.00 which he was to turn over to them. Yakovlev told him +that he would find the Greenglasses in an apartment at 209 North High +Street. + +On June 2, 1945, Gold, after seeing Fuchs, took a bus from Santa Fe +to Albuquerque. About 8:30 that evening, he went to the High Street +address that Yakovlev had given him but was informed by a neighbor +that the Greenglasses were not home. Early the next day--a Sunday--he +returned to High Street and this time found the couple in their +apartment. After informing Greenglass that he “was from Julius,” Gold +produced the piece of cardboard which matched that in the other man’s +possession. Greenglass, who was “a young man of about twenty-three +with dark hair,” then introduced Gold to his wife, Ruth, and asked him +to come back later that day as the information was not yet ready for +delivery. That afternoon, Greenglass gave Gold “an envelope which he +said contained ... the information on the atom bomb.” Before Gold took +his leave, Greenglass informed the courier that he expected to come to +New York on furlough around Christmas and that “if I wish to get in +touch with him then I could do so by calling his brother-in-law Julius +and he gave me the telephone number of Julius....” + +Gold returned at once to New York and turned over the material he had +received from Fuchs and Greenglass to Yakovlev. Although he returned +to New Mexico again in September of 1945 to see Fuchs, he never saw +the Greenglasses again. Fuchs told him that the first atomic bomb +had been exploded at Alamogordo in July and that he thought that “he +would probably very soon have to return to England.” The scientist +was extremely upset because the British had entered Kiel ahead of the +Russians and he was afraid that his Gestapo dossier would fall into the +wrong hands. Gold told him not to worry and that, after his return to +England, he would be contacted on the first Saturday of every month at +the Paddington Crescent station of the London subway. He was to carry +five books in one hand and two in another, while the man who would meet +him would have a copy of Bennett Cerf’s _Stop Me if You Have Heard +This_ in his left hand. + +When Gold was apprehended on May 23, 1950, he told his story to the FBI +agents who had picked him up. As a result of his revelations, David +Greenglass and his wife, Ruth, were arrested three weeks later in their +New York City apartment. Like Gold, the Greenglasses confessed that +they, too, had been engaged in espionage activities on behalf of the +Soviet Union. They insisted, however, that they had merely been pawns +in the hands of Julius Rosenberg, an electrical engineer, who was +married to David’s sister, Ethel. It was Julius, they both claimed, +who, with an assist from Ethel, had persuaded them to become atomic +spies and who had directed their espionage activities. On July 16th, +the Rosenbergs were arrested in their eleventh-floor apartment in +Knickerbocker Village, a middle-income housing project on Manhattan’s +lower East Side. + +One month later, the Federal Grand Jury in New York returned conspiracy +indictments against Julius Rosenberg, Ethel Rosenberg and Anatoli +Yakovlev. Four weeks earlier, Harry Gold had pleaded guilty to the +same crime in Philadelphia and been sentenced to thirty years in +prison. On October 10, 1950, a superseding indictment included David +Greenglass and an electrical engineer named Morton Sobell as additional +defendants. They were all accused of conspiring to deliver to “a +foreign nation ... documents, writings, sketches, notes and information +relating to the National Defense of the United States of America.” +Since Yakovlev had returned to Russia in December of 1946 and David +Greenglass had admitted his guilt, another indictment which named only +the Rosenbergs and Sobell was filed on January 31, 1951, and their +joint trial began in New York City on March 6, 1951. + +When court convened at 10:30 that morning, District Judge Irving R. +Kaufman, a comparative newcomer to the Federal bench, presided. Irving +H. Saypol, the United States Attorney for the Southern District of New +York, and five assistants appeared for the government. The Rosenbergs +were represented by a father-son team--Alexander Bloch for Ethel and +Emanuel H. Bloch for Julius. Harold M. Phillips and Edward Kuntz stood +up for Sobell while O. John Rogge, the attorney for the Greenglasses, +only hung around long enough to ask Judge Kaufman to notify him when +his client took the stand so that he “could be in attendance.” The +judge assured him that he would be happy to do so and Rogge, with a +grateful smile, double-timed out of the courtroom. + +After a jury of one woman and eleven men had been impanelled, Saypol +called Max Elitcher, a former employee of the Navy Department’s Bureau +of Ordinance. Elitcher had attended Stuyvesant High School and City +College with Morton Sobell. He said that Sobell had taken him to a +Communist Party get-together in the fall of 1939 and that he had then +regularly attended such meetings. In 1941, Sobell had left Washington +to study for his Master’s degree at the University of Michigan. + +Three years later Elitcher, who had remained with the Navy Department, +received a telephone call from “a person who said he was Julius +Rosenberg,” a former City College classmate, and who, like Sobell +and Elitcher, was an electrical engineer. This man had visited him +that same day and asked him whether he would be willing to obtain +“classified information about military equipment” and turn this +over for transmittal to Russia. He had assured Elitcher that his +old friend Sobell was “helping in this way.” Before the two parted, +Rosenberg instructed the witness to telephone him as soon as he had +any information so that it could be promptly photostated and returned +to the Navy Department before it was missed. Elitcher told him that “I +would see about it.” + +On Labor Day, the Elitchers joined Sobell and his fiancée on a vacation +trip to Kumbabrow State Park in West Virginia. When Elitcher mentioned +Julius’ visit, Sobell appeared agitated and said, “He should not have +mentioned my name.” Elitcher tried to pacify him by pointing out that +Rosenberg “knew about our close relationship [and] probably felt safe +about it,” but Sobell kept insisting that “it makes no difference, he +shouldn’t have done it.” + +A few months after Sobell’s marriage in March of 1945, the Elitchers +spent a night in New York at Rosenberg’s apartment. The latter +announced that he had been discharged by the Signal Corps for security +reasons. According to Elitcher, “he thought it had to do with his +espionage activity, but he was quite relieved to find out it only had +to do with the party activity.” He next saw Rosenberg in September +when Julius came to Washington and dropped in for “fifteen or twenty +minutes.” The conversation was limited to Elitcher’s work on fire +control devices for the Navy. Rosenberg asked him whether he “would +want to contribute [to satisfy] a continuing need for new military +information for Russia,” and Elitcher testified that “I said I would +see and if I had anything and I wanted to give it to him, I would let +him know.” + +Meanwhile, Sobell had left Ann Arbor for Schenectady where he was +employed by General Electric. Elitcher visited him there early in 1946, +only to be pumped about the availability of written reports on the Navy +fire control system. When he told Sobell that “it was not completed, it +was dragging along, it had not been finished yet,” he was advised to +see Rosenberg as soon as possible. Some months later, he met Rosenberg +again in his Knickerbocker Village apartment. This time Rosenberg +complained that “there was a leak in this espionage” and that it would +be better if “I don’t come to see him until he lets me know or until +someone informs me.” In fact, Julius thought that things were so hot +that he ordered Elitcher to discontinue his Communist Party activities +until further notice. + +In 1947, Sobell left General Electric and took a job as a project +engineer with the Reeves Instrument Corporation in New York. From time +to time, Elitcher visited him at the plant and, toward the end of the +year, had lunch with him at a restaurant on Third Avenue known as the +Sugar Bowl. During the meal, he remembered that his ex-roommate had +“inquired as to whether I knew of any engineering students ... who +would be safe to approach on this question of espionage, of getting +material.” Elitcher claimed that he knew of nobody who fitted this +bill but “if somebody came along, I would tell him about it.” + +After several meetings with Sobell at Reeves, Elitcher made up his mind +to leave the Bureau of Ordinance and enter private industry. In June +of 1948, during a business trip to New York, he telephoned Sobell to +inform him of his plans, and the former told him not to take any final +step “before you see me. I want to talk to you about it, and Rosenberg +wants to speak to you about it.” Later that day, Elitcher met Rosenberg +and Sobell at 42nd Street and Third Avenue. They did everything in +their power to persuade him to stay in the Bureau because, as Julius +put it, “he needed somebody to work at the Navy Department for this +espionage purpose.” During this conversation, Sobell kept repeating, +“Julie is right; you should do that.” But Elitcher was adamant and, +after the three men had dinner together, returned to Washington to +resign from the Navy Department and bring his family back to New York. + +At this time, Sobell lived at 164-17 73rd Avenue in Flushing. Elitcher +was successful in landing a job at Reeves and, in late July, drove to +New York on an apartment-hunting expedition. While driving through +Baltimore, he noticed that he was being followed by several cars. When +he arrived at Sobell’s house that evening, he told his friend that one +or two cars had tailed him during most of his northward trek. Sobell +was furious. “At this point, he became very angry and said that I +should not have come to the house under those circumstances.” After he +calmed down, he told Elitcher that he had something in the house “that +he should have given to Julius Rosenberg some time ago....” He said +he was tired and asked Elitcher to join him on the ten-mile trip to +Manhattan. As they were leaving the house, Elitcher “saw him take what +I identified then as a 35-millimeter film can.” + +The two men left Queens and drove down the East River Drive to the +Journal-American Building where Sobell parked the car. He took “this +can out of the glove compartment” and, after instructing Elitcher to +drive the car around the corner and wait for him on Catherine Slip, +walked off in the direction of Knickerbocker Village. When he returned +some thirty minutes later, Elitcher asked him, “Well, what does Julie +think about ... my being followed?” Sobell assured him that “it is +all right; don’t be concerned about it,” and headed the car in the +direction of Flushing. As they drove along, Sobell volunteered the +information that Rosenberg had told him that he once spoke to Elizabeth +Bentley on the telephone but that “he was pretty sure she didn’t know +who he was and therefore everything was all right.” + +Before Saypol turned the witness over to the impatient defense quartet, +he had extracted the information that Sobell had “a Leica camera, and +an enlarger and material for processing film.” Elitcher was sure that +Sobell had worked on classified material when he was employed by the +Navy, General Electric and Reeves. He had last seen his friend in June +of 1950 when Sobell and his family left for a weekend in Washington. + + Q. Did he say anything to you at that time about going to Mexico? + + A. No. + +Only the uninitiated in the courtroom were ignorant of the fact that +Sobell had been picked up in Mexico City in the late summer of 1950 by +Mexican security police and rushed across the Rio Grande. + +On cross-examination, Elitcher conceded that he had signed a loyalty +oath in 1947. “I signed a statement saying that I was not or had not +been a member of an organization that was dedicated to overthrow of the +government by force and violence.” + + Q. At the time you verified that oath, did you believe that you were + lying when you concealed your membership in the Communist Party? + + A. Yes, I did. + + Q. So you lied under oath? + + A. Yes. + +When he was first questioned about the Sobells and the Rosenbergs, he +“realized what the implications might be” of his perjured statement. +But he insisted that he “didn’t know what would happen to my skin when +I told the story. I certainly have hopes ... that the best will happen +to me.” + +With the witness’ admission that he had been going to a psychiatrist +since 1947 because of marital difficulties, the defense attorneys let +him go. There was bigger game in the offing. The bailiff called out the +name of David Greenglass and, accompanied by a United States Marshal, +the ex-sergeant walked up to the witness chair. Although Elitcher +had testified to a connection between Sobell and Rosenberg and some +suspicious activities by both men, he had not shown that either one was +engaged in atomic espionage. This was David Greenglass’ function and he +played his role to the hilt. + +After being trained as a mechanic at the Haaren Aviation School, +Brooklyn Polytechnic and Pratt Institute, Greenglass was drafted in +April of 1943. When he finished basic training, he had been sent to +ordinance school at Aberdeen, Maryland. In July, 1944, he was assigned +to the Manhattan District Project at Oak Ridge, Tennessee. After two +weeks orientation, he was sent to Los Alamos where he worked in the +“E” shop as a machinist. He was one of ten machinists in the shop +and became its foreman some eighteen months later. But it was not +until November of 1944 that he learned that the work he was doing was +“concerned with the construction of the atom bomb.” + +It was his wife, Ruth, who had enlightened him as to the nature of +the Manhattan Project. On November 29, 1944--their second wedding +anniversary--she visited him in Albuquerque. A few days after she +arrived, the couple decided to walk to the Rio Grande via Route 66. It +was during this outing that Ruth told her husband that the Rosenbergs +had invited her to dinner just before she left New York. Ethel and +Julius had informed her that they had become Soviet espionage agents +and that they were “giving information to the Soviet Union.” Julius +had then told Ruth that David “was working in the atomic bomb project +at Los Alamos and that they would want me to give information to the +Russians.” + +At first, David refused to help the Rosenbergs, but, after a night of +soul-searching, he apparently had a change of heart. The next day, +he furnished his wife with the code names for such scientists as J. +Robert Oppenheimer, Neils Bohr and George B. Kistiakowski as well as +information about “the general layout of the Los Alamos Atomic Project, +the buildings, number of people and stuff like that.” Ruth told her +husband that she had been instructed by Julius “not to write it down, +but to memorize it.” Two days later, she returned to New York. + +Greenglass next saw his wife on New Year’s Day of 1945 when he arrived +home on a fifteen-day furlough. Julius came over one morning and +“asked me to give him information, specifically anything of value +on the atomic bomb, whatever I knew about it.” He was particularly +interested in some high explosive lens molds on which David told him he +was working at Los Alamos. That evening, Greenglass drew some sketches +of the lens molds and gave them to his brother-in-law the following +morning. In order to assist Greenglass in preparing his sketches, +Julius gave him “a description of the atom bomb” of the Hiroshima type. + +Two or three days later, the Greenglasses were invited to dinner at +the Rosenberg’s. There they met a woman by the name of Ann Sidorovich. +Later that evening, Julius told David that Mrs. Sidorovich would go +west during Ruth’s next trip to Albuquerque and that the two women +would exchange pocketbooks in a Denver movie theatre. Ruth’s was to +contain the latest information on the atom bomb that David would turn +over to her in Albuquerque. + +However, there was a chance that another courier would be sent. To +make sure that the Greenglasses would be able to identify Sidorovich’s +replacement, Rosenberg gave Ruth one part of the side of a Jello box +and told her that whoever came to Albuquerque would have the other +portion. Ruth put the piece of cardboard in her wallet. The rest of the +evening was spent in discussing lenses, and Rosenberg told Greenglass +that “he would like me to meet somebody who would talk to me more about +lenses.” The person Julius had in mind was a Russian scientist and an +appointment was made for David to meet this man a few nights later on +First Avenue between 42nd and 59th Streets. + +Greenglass borrowed his father-in-law’s Oldsmobile and parked at the +spot Julius had indicated. His brother-in-law brought over a strange +man who got into the car and ordered David to drive around the area. +He asked the machinist a great many questions about lenses--the high +explosive used, the means of detonation and the formula of the curve in +the lens. David promised to find out what he could when he returned to +Los Alamos and he drove the Russian back to where he had entered the +car. He then returned home where “I told my wife where I had been.” + +Two weeks later, he returned to the Manhattan Project. Early the next +April, Ruth joined him in Albuquerque. Shortly after she arrived, the +couple found an apartment at 209 North High Street. David managed to +spend Saturdays and Sundays at the apartment, returning to the base on +Monday mornings. It was on one of those Sundays--June 3, 1945--that +Harry Gold made the first of his two visits to the Greenglasses. +After announcing that he came from Julius and exhibiting the other +half of the Jello box side, he was told by David to come back later +as the information was not yet ready. As he left the apartment “Mrs. +Greenglass told me that just before she had left New York City to come +to Albuquerque, she had spoken with Julius....” + +That afternoon, David turned over to Gold several sketches of a lens +mold, some descriptive material about atomic bomb experimentation, and +a “list of possible recruits for espionage.” He also indicated that a +test explosion was scheduled for July at Alamogordo, New Mexico. The +Greenglasses then accompanied the courier on a back road that led by +the USO where “we dropped him. We went into the USO, and he went on his +way. As soon as he had gone down the street my wife and myself looked +around and we came out again and back to the apartment and counted the +money.” + + Q. How much was it? + + A. We found it to be $500. + + Q. What did you do with the money? + + A. I gave it to my wife. + +It was at this point that Saypol introduced a sketch of a lens mold +which had been prepared from memory by Greenglass after his arrest. The +latter stated that it was, for all practical purposes, a replica of one +he had given Gold in Albuquerque. + +In September, Greenglass arrived in New York on furlough. He stayed at +his mother’s apartment on Sheriff Street where Rosenberg visited him +the next morning. Greenglass told him, “I think I have a pretty good +description of the atom bomb.” He turned over a sketch and some data +relating to the bomb to his brother-in-law who seemed delighted with +them. He gave David $200.00 and told him that “he would like to have +it immediately, as soon as I possibly could get it written up....” +A replica of this sketch was identified by an atomic engineer at a +later stage of the trial as a cross-section of “the bomb we dropped at +Nagasaki, similar to it.” + +That afternoon, Greenglass typed some twelve pages of information and +then drove over to Knickerbocker Village with Ruth where he gave the +manuscript to Julius. The latter insisted that the report’s grammar +be corrected and Ethel retyped it on a portable in the living room. +While this was going on, Julius told David that he had once stolen a +proximity fuse when he worked for the Emerson Radio Company. Before the +Greenglasses left that afternoon, Julius advised David to stay at Los +Alamos as a civilian when he was discharged from the Army. + +David received an honorable discharge at Fort Bliss in El Paso on +February 28, 1946. He immediately returned to New York where he went +into business with his brother Bernard, Julius Rosenberg and a man +named Goldstein. The four formed two companies--G & R Engineering and +the Pitt Machine Products Corporation. Some time in 1946 or 1947, +Julius urged David to continue his schooling at Russian expense “for +the purpose of cultivating the friendships of people that I had known +at Los Alamos and also to acquire new friendships with people who were +in the field of research that are in those colleges, like physics and +nuclear energy.” He suggested a number of institutions, including the +University of Chicago, the Massachusetts Institute of Technology and +New York University, but Greenglass “never bothered” to go. + +In August of 1949, David left Pitt and G & R and got a job with the +Arma Engineering Corporation. In the three years he had been working +with his brother-in-law, Julius had told him a great deal about his +espionage activities. According to Greenglass, Rosenberg was receiving +information from General Electric as well as from someone in Cleveland, +Ohio. “He told me that he had people going to school in various +up-State institutions.” In 1947, he revealed that he had heard “from +one of the boys” about a sky-platform project, and information about +“atomic energy for airplanes” from another. As a reward for all his +varied activities, he informed David, he and his wife had been given +watches, a citation and a console table by the Russians. + + Q. Did he describe the citation at all? + + A. He said it had certain privileges with it in case he was sent to + Russia. + +A few days after Klaus Fuchs’ arrest in February of 1950, Rosenberg +awakened Greenglass one morning and insisted that he accompany him on +a walk around nearby Hamilton Fish Park. He told David that the man +who had visited him in Albuquerque five years before had been one of +Fuchs’ contacts and that he would probably be picked up soon. He urged +Greenglass to leave the country and promised to obtain some money for +him from the Russians. For the next few months, Rosenberg kept pressing +David to get out of the United States but it was not until Harry +Gold’s arrest in May that he told him that “you will have to leave the +country.” + +At that time, he gave David $1000.00 and promised him $6000.00 more. +He suggested that David and Ruth go to Mexico City and that they get +their tourist visas at the border rather than at the Mexican Consulate +in New York. Once the couple arrived in Mexico City, they were to make +contact with the Russian Ambassador and, by following instructions +that would have delighted E. Phillips Oppenheim, eventually wind up in +Czechoslovakia. Greenglass went so far as to have six sets of passport +pictures taken. On Memorial Day, he turned five sets over to Rosenberg +who, a week later, brought him $4,000 in tens and twenties in a brown +paper bag. Almost all of this money, he said, had been given to O. John +Rogge as a fee for legal services. + +In the days that followed this visit, David began to notice that he +was being regularly followed. When Julius asked him, “Are you being +followed?” he told him that he thought he was. His brother-in-law then +asked him what he intended to do about it and Greenglass told him, “I +am not going to do anything. I am going to sit--I am going to stay +right here.” On June 15th, he was picked up by agents of the Federal +Bureau of Investigation. One month later, Julius Rosenberg was taken +into custody and, on August 11th, Ethel was arrested. The circle that +Gouzenko had started in 1945 was full. + +Ruth Greenglass told much the same story as had her husband. Julius and +Ethel had persuaded her to encourage her husband to commit espionage. +Her brother-in-law had given her $150.00 for railroad fare when she +first visited David in Albuquerque in late November of 1944. A few +days after she arrived, she and her husband took a stroll out of +Albuquerque on Route 66 and she “told him that Julius was interested in +the physical description of the project at Los Alamos, the approximate +number of people employed there, whether the place was camouflaged, +what the security measures were, and the type of work that David +himself did....” The next day, after consulting “with memories and +voices in my mind,” Greenglass told her what she wanted to know and, +when she returned to New York a few days later, she wrote it all down +for Julius who seemed “very pleased.” + +She said that the plan to switch pocketbooks with Ann Sidorovich +in a Denver theatre had soon been abandoned in favor of a meeting +in an Albuquerque supermarket. On March 3, 1945, she left New York +for her second trip to Albuquerque where, after three weeks of +apartment-hunting, she found the place on North High Street. On April +18th, she suffered a miscarriage and immediately wrote to Ethel +Rosenberg to tell her that she was confined to bed and would be unable +to keep the supermarket rendezvous which had been scheduled for “the +last Saturday in April or the first Saturday in May.” Ethel wrote back +that “a member of the family would come out to visit me the last weeks +in May, the third and fourth Saturdays.” The Greenglasses visited the +Central Avenue Safeway, which had been chosen as the meeting spot, on +both Saturdays but “no one came.” It wasn’t until Sunday, June 3rd, +that Harry Gold walked into their living room and announced that he +came “from Julius.” + +Her description of the Gold visit was similar to David’s except that +she insisted that her husband had taken the Jello box side out of +her wallet while, as he remembered it, it had been in her purse. The +remainder of her testimony pertaining to the various acts of espionage +that took place during the rest of 1945 did not differ materially from +her husband’s. She did recall a conversation with Ethel in 1946 about +a “mahogany console table” which her sister-in-law told her “she had +gotten ... as a gift.” Julius interrupted to say that “it was a special +kind of a table” and pointed out that its underside had been hollowed +out so that it could be used for microfilming. + +The defense made a monumental effort to discredit both witnesses. The +spectacle of a brother testifying against his sister was not a pretty +one and Emanuel Bloch made the most of it. + + Q. Do you bear any affection for your sister Ethel? + + A. I do. + + Q. You realize, do you not, that Ethel is being tried here on a charge + of conspiracy to commit espionage? + + A. I do. + + Q. And you realize the grave implications of that charge? + + A. I do. + + Q. And you realize the possible death penalty, in the event that Ethel + is convicted by this jury, do you not? + + A. I do. + +But David insisted that he had always loved his sister “as far back as +I ever met her and knew her.” If his testimony hurt her, he was sorry, +but he felt “remorse” and had to get it off his chest. + +Bloch also tried to show that Greenglass lacked the technical knowledge +necessary to understand the material he said he was obtaining for +Julius. David admitted that he had failed all eight courses he had +taken at Brooklyn Polytech, that he had never obtained a degree in +science or engineering, and that he had had no training in nuclear or +atomic physics. As far as the Army was concerned, he was classified as +an automotive machinist and a toolmaker. What he did know about the +bomb, he had “picked it up here and there.” + +As far as the Blochs were concerned, the Greenglasses were testifying +against their clients in the hopes of avoiding punishment for their +participation in the espionage conspiracy. At the time of the trial, +Ruth had neither been arrested nor indicted despite the fact that she +had been very much a part of Rosenberg’s plans. Bloch _fils_ pumped +David about this. + + Q. Now, Mr. Greenglass, your wife has never been arrested, has she? + + A. She has not. + + Q. And she has not pleaded guilty to any conspiracy to commit + espionage, has she? + + A. She has not. + + Q. And your wife is at the present time home taking care of your + children; isn’t that right? + + A. That’s right. + +His father tried the same tack when he had Ruth on the stand. She had +stated that, after her husband’s arrest, she had informed her lawyer, +O. John Rogge, that she wanted to testify for the Government. + + Q. Well, was it your state of mind, that you thought you would not be + punished? + + A. No, I didn’t want to be punished. + + Q. Did you hope not to be punished? + + A. I did. + + Q. And did you at the time you spoke to Mr. Rogge, hope that, if + you told the truth and your husband told the truth, you wouldn’t be + punished? + + A. Mr. Bloch, I have always hoped that ... + + Q. Will you answer my question, please? + + A. Yes. + +Bloch Junior’s parting shot at the Greenglasses involved the nature of +their relationship with Julius after the failure of the machine shop +in 1949. Ruth testified that “we lost everything in that business.” +When her husband pulled out in August of that year, he had asked to +be compensated for his twenty-five shares of stock. In fact, Ruth had +“bought a book of promissory notes” and drafted several notes for her +brother-in-law to sign. “We asked Mr. Rosenberg to sign the promissory +notes and he refused, and he said we did not have the understanding +that required it--a verbal understanding was sufficient, and he gave +neither my husband nor his brother a note.” But she insisted that the +incident did not cause any friction between the two families even +though she had consulted Mr. Rogge about David’s rights. + + Q. Well, aren’t you a bit angry at either Mr. or Mrs. Rosenberg + because they did not pay you what you think you were entitled to? + + A. I don’t think I am angry. I just can’t understand their actions + because there was a debt due. + + Q. You are not angry? + + A. No, I am not angry. I don’t understand people who do not pay their + debts, Mr. Bloch. + + Q. And you resent it? + + A. I don’t think I resented it. I couldn’t understand why I wasn’t + being paid for what was rightfully mine. + +It was David’s recollection that he had assigned his stock to his +sister’s husband in January of 1950 but that it hadn’t been turned over +to him until late April. There was some discussion about the price +to be paid for the stock--David wanted $2,000.00 but finally agreed +to accept half that amount in the form of a note. After he gave the +stock to Julius, he claimed that Rosenberg never signed the promissory +note which Ruth had prepared for him. When Greenglass was arrested, he +asked Rogge to start a law suit against Rosenberg for the “few thousand +dollars” he said he had lost in the machine shop venture. When Ruth +testified, she swore that David had never asked his lawyer to sue +Julius--“I was the one who spoke of it,” she insisted, “not my husband.” + +The Greenglasses were followed on the stand by Harry Gold whose +apologia included the saga of his trip to Albuquerque in June of 1945. +His version of the episode was identical with those previously put into +the record by David and Ruth. He had arrived in Santa Fe on Saturday, +June 2nd, where he had a thirty-minute conversation with Fuchs. He then +took the bus to Albuquerque, a sixty-minute run, where he “managed +to obtain a room in the hallway of a rooming house.” Early the next +morning, he had registered in his own name at the Hilton Hotel and then +walked to the North High Street address Yakovlev had given him, and +climbed “a very steep flight of steps” to the Greenglasses second-floor +apartment. Although Ruth and David had testified that they did not +receive the $500.00 from Gold until his afternoon visit, the courier +remembered that he had given them the envelope containing the money +that very morning. + +Because Gold, other than by his references to “Julius,” did not +implicate either the Rosenbergs or Sobell, he was not cross-examined +by the defense team. As he vacated the witness chair to return to the +Lewisberg Federal Penitentiary, Saypol called Dr. George Bernhardt. +Bernhardt was a physician who lived only a few doors away from the +Rosenbergs on Monroe Street. He recalled a telephone conversation he +had had with Julius in May of 1950. According to him, the defendant had +said, “Doctor, I would like to ask a favor of you. I would like to know +what injections one needs to go to Mexico.” When the doctor demurred, +Julius had assured him that “it is not for me; it’s for a friend of +mine.” Bernhardt then told him that he would need “typhoid injections +and a small-pox vaccination.” + +During this conversation, Bernhardt informed Rosenberg that if his +friend was a veteran “all he would need would be booster doses instead +of going through the entire series of injections, and he said, ‘Yes, +he is a veteran.’” He told his caller that the typhus injection would +not be necessary, however, if his friend was going only to Mexico City +but Rosenberg said, “He will probably go into the interior.” Then, +Bernhardt had recommended, “if he decided to go ... give me a little +notice because I don’t usually stock a typhus vaccine and I would have +to get it, and he said he would let me know.” + + Q. Did that complete the conversation which you had with him? + + A. That is right. + +Bernhardt admitted to Block Junior that he had been treating Julius for +hay fever during May of 1950. Rosenberg used to come to the physician’s +Knickerbocker Village apartment once a week for injections. These +injections were usually given in Bernhardt’s living room. But the +witness couldn’t remember whether he had ever discussed vacations with +his patient or shown him pictures he had taken on Cape Cod. He was +certain, however, that he had never discussed “with Julius Rosenberg +his taking a vacation in Mexico.” + +The Government got back to the subject of Morton Sobell again with +the testimony of William Danziger, another City College graduate who +had worked with him in the Bureau of Ordinance. Danziger had left +Washington in March of 1950 to take a job with the Academy Electrical +Products Corporation in New York. Shortly after his arrival, he had +looked up the Sobells and, with his wife, visited them in Flushing. It +was during this visit that Sobell, after learning that his guest was in +“the electrical business,” had suggested to him that he might be able +to use Rosenberg’s machine shop. + +In the latter part of June, Danziger visited the machine shop where he +was informed that Julius was “out at a stamping place. I was at that +time rather interested in getting an estimate on stamping, so I went +out to the stamping place and saw him out there.” In July, Danziger +dropped in at the shop once more “to look over the ... facilities.” +Rosenberg told him that “he was rather tied up at that time” and would +be unable to accept any new work “for some months.” If Danziger wanted +some work done, he was advised “to contact him some time in the future.” + +On June 20th, Danziger telephoned Sobell and told him that he was +looking for an electric drill in order to do some repair work at his +home. Sobell informed him that “he was getting ready to leave for a +vacation in Mexico,” but if Danziger wanted a drill, he would have to +come to Flushing to get it. When he arrived at the Sobell apartment +that evening, he noticed that “there was packing going on, there were +valises standing there.” He also saw a car in the driveway with some +valises in it. After Sobell gave him the electric drill, he told +Danziger that “he was going to Mexico City by air.” + +Some weeks later, Danziger received a letter addressed to him at the +Academy Electrical Products Corporation from an “M. Sowell” in Mexico +City. It was from Sobell and contained two enclosures which he was +asked to “forward ... and I will explain to you when I get back.” +One was a note to Sobell’s parents and the other to Edith Levitov, a +sister-in-law who lived in Arlington, Virginia. Danziger delivered both +notes and also followed Sobell’s directions to “deliver my address to +Max Pasternak.” + + Q. Did you know who Max Pasternak was? + + A. I knew he was related in some way. + +In the middle of July, he received a second letter from Mexico City. +This time, the name on the envelope was “M. or Morty Levitov.” It +contained “a letter for me, an enclosure for Miss Edith Levitov and +a short additional note which he asked me to forward, using somewhat +similar phraseology, ‘I will let you know about it when I get back.’” +Danziger promptly forwarded the note to Miss Levitov and never heard +from Sobell again. Before he stepped down, the witness said he thought +that the return address on the second communication--a Cordova or +Corbova Street--was different from the one on the first envelope. + +Then a Mexico City interior decorator with the impressive name of +Manuel Giner de Los Rios sauntered up to the stand. With an interpreter +at his side, he testified in a soft Spanish that he lived in Apartment +5 at 153 Calle Octava de Cordoba. He remembered that the Sobells had +rented Apartment 4 at the beginning of July, 1950, and that he had had +a conversation on the stairs with Morton about a tank of cooking gas on +the day they moved in. A week later, he invited the new tenants to “a +party for the family and friends in honor of the saint’s day....” + +The Sobells soon reciprocated by inviting de Los Rios and his wife to +dinner. A few days afterwards, Sobell, who appeared to be “a little +nervous, a little worried,” asked his new friend “how one could leave +Mexico.” + + Q. Did he make any statement as to why he wanted to leave Mexico? + + A. Only because he was afraid. + + Q. Did he say specifically what he was afraid of? + + A. He was afraid that they were looking for him so that he would have + to go to the Army. + + Q. Did he say who was looking for him? + + A. The military police. + +“Sometime around the 20th or 22nd of July, 1950,” de Los Rios recalled, +Sobell had gone to Vera Cruz where he stayed “for about fifteen days.” +The decorator had received two letters from him during this period, +both of which began with the salutation, “Dear Helen.” The first was +postmarked Vera Cruz and the second was from Tampico. He delivered each +letter personally to Mrs. Sobell. + +The interpreter had his work cut out for him that afternoon. Señor de +Los Rios had no sooner left the courtroom when the bailiff called out +the name of Minerva Bravo Espinosa, who, it turned out, worked in an +optical shop on the Calle Cinco de Mayo in Vera Cruz. On July 26, 1950, +an American who gave his name as “Mr. M. Sand,” had placed an order +with her for a pair of glasses. She had no difficulty in recognizing +Sobell as that man. He had filled out a card “which purchasers make +out to specify what they buy.” At this point, Mr. Kuntz stood up and +announced that “we will concede that we filled out the card and used +the name of Sand and bought a pair of glasses there.” + +José Broccado Vendrell, who was one of the proprietors of the Grand +Hotel Diligencias in Vera Cruz, remembered that a “Morris Sand” had +stayed at his establishment until July 30th. Vendrell was followed by +Dora Bautista, a clerk at a Tampico hotel. On July 30th, an American, +who gave his name as “Marvin Sand,” had registered and asked her for +directions to the Banco Granadero. Both witnesses identified Sobell as +the man they had seen. Glenn Dennis, an official of a Mexican airline, +confirmed that a passenger by the name of “N. Sand” flew from Vera Cruz +to Tampico on July 30th, and a “Morton Solt” from Tampico to Mexico +City two days later. + +Elizabeth Bentley, fresh from her triumphs before sundry Congressional +investigating committees, contributed little to the prosecution’s +case. Outside of adding to the aura of Communism that permeated the +entire trial, her testimony consisted of innuendo only. In the fall of +1942, she had accompanied Golos, her party superior (and lover), to +the vicinity of Knickerbocker Village, where he was “to pick up some +material from a contact, an engineer.” At that time, she had waited in +a car while Golos talked to his “contact.” From then until November +of the next year, she used to receive telephone calls from a man “who +described himself as ‘Julius.’” Golos had told her that this man “lived +in Knickerbocker Village,” but she had “never met anyone whose voice I +heard, whom I could describe as Julius.” + +The government’s last witness was James S. Huggins, an immigration +inspector for the Department of Justice. On August 18, 1950, nine +Mexican security policemen had brought Morton Sobell to his office in +Laredo, Texas. He identified a manifest record which he had filled out +from information given to him by Sobell. At the bottom of the card, +he had written, “Deported from Mexico,” despite the fact that the +Mexican authorities had not shown him any deportation orders. As soon +as Huggins had laboriously typed in the necessary personal data on the +manifest, the defendant was arrested by FBI agents who were waiting in +the outer office. + +As Huggins left the witness stand and headed back for the anonymity +of the Immigration and Naturalization Service, Saypol announced that +“The Government rests, if the Court please.” In a little less than two +weeks, the prosecution had presented the evidence which it hoped would +convict all three defendants. After some defense motions for a mistrial +because of the infusion of testimony about the Communist Party were +denied, Bloch Junior informed Kaufman that “my first witness is the +defendant Julius Rosenberg.” + +It was late on the afternoon of March 21, 1951, that the mustached, +bespectacled Rosenberg sat himself down in the witness chair. A +thirty-three-year-old electrical engineer, he proudly stated that he +had married Ethel on June 18, 1939, and that they were the parents of +two boys, Michael and Robert. Outside of the fact that he knew a great +many people whose names were mentioned during the trial, he denied +that he had in any way been involved in espionage. As for Russia, he +“felt that the Soviet government had improved the lot of the underdog +there ... and at the same time I felt that they contributed a major +share in destroying the Hitler beast who killed six million of my +co-religionists.” + + Q. Did you feel that way in 1945? + + A. Yes, I felt that way in 1945. + + Q. Do you still feel that way today? + + A. I still feel that way. + +But he was, and always had been, loyal to the United States. + +He testified that Greenglass had asked him for $2,000.00 in May of +1950. When Julius asked him why he needed this money, he was told, +“I need the money. Don’t ask questions.” David had also urged his +brother-in-law to see if his doctor “would make out a certificate +for smallpox vaccination.” In addition, he had wanted to know “what +kind of injections are required to go into Mexico.” It was after this +conversation that Rosenberg had questioned Dr. Bernhardt about the +medical requirements for a Mexican trip. + +Toward the end of May, David had telephoned Rosenberg and pleaded with +him to come over to his apartment. He told Julius, whom he usually +called Julie, that he was “in a terrible jam.” He said he needed a +“couple of thousand dollars in cash” and, when his brother-in-law told +him that he couldn’t raise that amount of money, he had shouted “... if +you don’t get me that money you are going to be sorry!” Outside of an +inconsequential meeting a few days later, that was the last time that +Julius had seen David until the latter testified at the trial. + +Ethel buttressed her husband’s emphatic denials of any espionage +activities. She knew that Julius had purchased their console table +at Macy’s and that “it was about $20 or $21.” Long after the trial, +such a table, which a Macy employee priced at $20.36, was found in her +mother-in-law’s apartment. As far as wrist-watches were concerned, the +one she had been wearing when she was arrested had been given to her +by her husband on her birthday in 1945. She remembered that Julius had +lost his watch on a New York Central train in August of 1948. She was +certain that neither the console table nor the watches had been given +to them by the Russians. + +When Saypol took over, both witnesses refused to answer any questions +that had to do with their association with the Communist Party. Julius +informed Judge Kaufman that “if Mr. Saypol is referring to the Young +Communist League or the Communist Party, I will not answer any question +on it....” + + Q. You mean you assert your constitutional privilege against + self-incrimination? + + A. That’s right. + +Ethel bridled at any reference to the word “Communist” and refused +to answer such questions as “Did you ever sign a Communist Party +nominating petition for elective office?” and “Were they [friends with +whom the Rosenbergs had lived for a time] members of the Communist +Party?” + +After Thomas V. Kelly, a Macy’s attorney, testified that it was +impossible to check the purchase of the console table because the +store’s records for 1944 had been destroyed, the defense called it +a day. But Saypol had three rebuttal witnesses up his well-tailored +sleeve--Evelyn Cox, a domestic who had worked for the Rosenbergs in +1944 and 1945, Helen Pagano, a legal secretary employed by O. John +Rogge, and Ben Schneider, a commercial photographer. Mrs. Cox was +there to swear that Ethel Rosenberg had once told her that the console +table had been given to her husband as “a sort of a wedding present.” +Mrs. Pagano said that Louis Abel, who was married to Ruth Greenglass’ +sister, had brought $3,900.00 to Rogge’s office on June 16, 1950, the +day after David’s arrest, and that this money had been wrapped “in a +brown bag.” Schneider identified the Rosenbergs as the couple who had +ordered some passport pictures from him on a Saturday in May or June of +1950. + +On March 29th, the jury, after deliberating more than eighteen hours, +returned verdicts of “guilty as charged” against all three defendants. +One week later, Judge Kaufman sentenced the Rosenbergs to death +because, as he somewhat awkwardly put it, “... your conduct in putting +into the hands of the Russians, the A-Bomb ... has already caused, +in my opinion, the Communist aggression in Korea with the resultant +casualties exceeding 50,000....” As for Sobell, he thought that “the +evidence ... did not point to any activity on your part in connection +with the atom bomb project” and sentenced him to thirty years, the +maximum prison term provided by the Espionage Act, with a “gratuitous” +recommendation that he never be admitted to parole. The next day, David +Greenglass, whose sentence had been deferred to the end of the trial, +was sentenced to a fifteen-year term. + +After more than two years of fruitless appeals and motions for a new +trial, the Rosenbergs’ executions were set for eleven p.m. on the night +of June 19, 1953, at Sing Sing Prison. But three days before, Irwin +Edelman, “an interested citizen,” filed a motion with Mr. Justice +William O. Douglas, in which he argued that the penalties of the Atomic +Energy Act rather than those of the Espionage Act were applicable and +that, under the former, the Rosenbergs could not have been sentenced to +death. On June 17th, Douglas granted a stay of execution in order to +give Edelman’s attorneys time to argue their point. But Chief Justice +Vinson reconvened the Court on the following day and the full bench, +by a six-to-three vote, vacated Douglas’ stay at noon on June 19th. +After President Eisenhower refused to grant clemency, the couple’s +execution was moved ahead three hours in order to avoid a conflict +with the Jewish Sabbath. A few minutes after eight p.m., Julius and +Ethel Rosenberg passed into what Joseph Conrad once called “the great +indifference of things.” + + + + +9 + +_Contempt by Silence_ + +The United States + +_versus_ + +Corliss Lamont + + +On February 9, 1950, a comparatively unknown United States Senator from +Wisconsin, who was beginning the fifth year of a colorless first term, +addressed the Ohio County Women’s Republican Club of Wheeling, West +Virginia. His subject was “Communism in Government.” Halfway through +his talk, in a gesture that was shortly to become his trademark, he +held up a sheaf of papers and announced to his startled audience +that “I have here in my hand a list of 205 that were known to the +Secretary of State as being members of the Communist Party and who, +nevertheless, are still working and shaping the policy in the State +Department.” Before he sat down, linotypers, the country over, were +busy punching out the words that were to free him from the obscurity +he abhored. Whether he said 57 or 81 or 205 didn’t seem to make much +difference--Joseph Raymond McCarthy, ex-Democrat, ex-judge, ex-Marine, +had struck pay dirt. + +Eleven days later, McCarthy took his attack on the State Department to +the floor of the Senate. In a tumultuous six-hour presentation, that +was interrupted more than one hundred and fifty times, he dredged up +eighty-one cases, all of which had been developed some years earlier by +State’s own security investigators. Of these eighty-one, he discussed +some seventy-six, broken down into varying degrees of risks. He made +no attempt to prove that any of these “risks” were “members of the +Communist Party,” or even that they were all State employees, as he had +alleged at Wheeling, but contented himself with the observation that +there was “something radically wrong” with an agency that did not fully +investigate its own suspicions. Before the stormy session broke up, a +few minutes shy of midnight, the gentleman from Wisconsin was hoarse +and incoherent, and his fellow Senators were so thoroughly confused by +the discrepancies in his figures that they had given up all pretence +of trying to understand them. The Big Lie, or, as one writer later +pluralized it, the Multiple Untruth, had rarely gone over so well. + +The immediate result of McCarthy’s February 20th speech was Senate +Resolution 231, which authorized the Senate Committee on Foreign +Relations “to conduct a full and complete study and investigation as +to whether persons who are disloyal to the United States are, or have +been, employed by the Department of State.” On March 8th, a Foreign +Relations subcommittee, headed by Senator Millard Tydings, Maryland’s +patrician legislator, began what was to be a four-month investigation +of McCarthy’s charges. After more than 1500 pages of testimony had been +taken, most of it supplied by the parvenu accuser, the hearings ground +to a close in late June with Owen Lattimore, a professor of government +at Johns Hopkins, being offered up as a blood sacrifice. Lattimore, who +had never been a State Department employee, was described by McCarthy +as “the chief architect of our Far Eastern policy” and “Alger Hiss’ +boss in the espionage ring in the State Department.” + +“I’m willing,” he told Tydings, “to stand or fall on this one. If I +was wrong on this, I think the subcommittee would be justified in not +taking my other cases too seriously.” The subcommittee apparently +took him at his word because it found that “starting with nothing, +Senator McCarthy plunged headlong forward, desperately seeking to +develop some information which, colored with distortion and framed by +a blaze of lies, would forestall the day of reckoning.” But, although +Tydings and a majority of his colleagues were convinced that the junior +Senator from Wisconsin had been guilty of perpetrating a “fraud and a +hoax” upon the country at large, the very publicity that the hearings +received quickly established McCarthy as a farce to be reckoned with. +The wrong man and the right moment had met head-on. + +In the Fall of 1951, Senator William Benton of Connecticut persuaded +the Subcommittee on Privileges and Elections of the Senate’s Committee +on Rules and Administration “to determine whether expulsion proceedings +should not be instituted against Joseph R. McCarthy” for lying to the +Senate and to the Tydings Committee. As Benton put it, McCarthy, by +being unable to substantiate his claimed list of 205 (or 81 or 57) +party members in the State Department, was clearly “a calculating +dispenser of false and perverted information.” But the change in Senate +leadership occasioned by the Eisenhower sweep in 1952 resulted in +the tabling of the subcommittee’s report, a document which raised a +great many intriguing (and unanswered) questions about its subject’s +financial dealings. McCarthy, who had been instrumental in Tydings’ +November defeat, became the chairman of both the Senate’s Committee +on Government Operations and its roving subsidiary, the Permanent +Subcommittee on Investigations, and the perennially ill-shaven +gentleman from the lake country had an open field before him. + +On September 23, 1953, the Permanent Subcommittee, consisting (as it so +often did) only of its chairman, was ensconced in Room 128 of New York +City’s United States Court House. The day before, a subpoena had been +served on Corliss Lamont, the maverick son of one of J. P. Morgan’s +partners, ordering him to appear at 2:30 the next afternoon to “testify +what you may know relative to the subject matters under consideration +by said committee,” namely Communist infiltration in the Army. Dr. +Lamont, a leading exponent of what he described as “Democratic +Socialism,” who was then teaching philosophy at Columbia University, +was the author of several books, including one entitled _The Peoples of +the Soviet Union_. + +When Lamont, who had been cooling his heels for more than an hour in +an anteroom, walked into Room 128 a few minutes after 3:30 on the +afternoon of September 23rd, he had no way of knowing that his case was +to be, in a sense, his interrogator’s epitaph. 1953 had been a big year +for McCarthy. Before it ended, he and his road-show juveniles, Cohn and +Schine, had been involved in some 157 inquiries concerning mainly the +Voice of America and the Signal Corps installations at Fort Monmouth, +New Jersey. During the first two months of 1954, he was, with the +unwilling help of an honorably discharged army dentist and an insulted +brigadier general, to set the stage for his own _Götterdämmerung_. But +Irving Peress, Ralph Zwicker and the Army-McCarthy vendetta were still +tomorrow’s headlines when the mild-mannered Lamont eased himself into +the witness chair and immediately announced that he had a statement +objecting to the subcommittee’s jurisdiction which “I would like to +read into the record.” + +The chairman, always a great stickler for the amenities, informed him +that he would have to be sworn before he made any speeches. The witness +indicated that he would rather affirm than take an oath, and McCarthy +promptly acceded to his request. As Lamont adjusted his glasses and +again prepared to read his statement, the chairman interrupted to +ask him, “Why you want to affirm rather than be sworn?” When Lamont +objected to having to explain his religious beliefs, the Senator +snapped, “You will be sworn unless you tell us you have got some ground +for refusing to be sworn.” The exchange ended when McCarthy, who +apparently felt that he was getting in beyond his depth, capitulated, +after warning Lamont that he hadn’t heard the last of the matter. He +couldn’t have been more prophetic if he had tried. + +Lamont had barely started reading his prepared statement when the +chairman suddenly exhibited a compelling curiosity to learn the names +of his two attorneys, although one of them, Philip Wittenberg, had +submitted his calling card when the hearing opened. When Wittenberg had +formally introduced himself and his associate, Irving Like, McCarthy +waved Lamont on. The witness, with a remarkable show of almost saintly +patience, picked up where the last interruption had left him, and +continued his statement. + +After informing the chairman that he was “not now and never had been +a member of the Communist Party,” Lamont vigorously attacked the +subcommittee’s jurisdiction. As far as he was concerned, McCarthy +had no power to inquire into his “personal and private affairs.” Not +only was this prohibited by the Constitution’s First Amendment, but +no statute or Senate rule gave the Permanent Subcommittee the right +to question a private citizen as to his “personal conduct, personal +beliefs and associational activity.” Indeed, if any governmental +agency had this right, it was the judiciary and not the legislature. +Lastly, Lamont maintained that the absence of the subcommittee’s three +Democrats, who had resigned in a huff in the late summer of 1953 over +the chairman’s insistence on hiring staff personnel without consulting +them, “has deprived this committee of its competency to act until it +has been properly constituted.” + +If McCarthy was impressed by what he had heard, his visage didn’t +reflect it. Frank Carr, the subcommittee’s staff director, who was +hovering at his elbow, handed him a dark-covered book which turned out +to be Ernest J. Simmons’ _U.S.S.R., a Concise Handbook_, to which, it +seemed, Dr. Lamont had contributed a chapter entitled “National and +Racial Minorities.” After observing darkly that this book was “being +used by the military to indoctrinate our troops,” the chairman wanted +to know whether the witness had been paid for his chapter. Lamont +couldn’t remember whether he had or not, but promised to furnish that +information after checking his records. + +The next order of business was a mysterious pamphlet called +_Psychological and Cultural Traits of Soviet Siberia_, which later +turned out to have been prepared by Army Intelligence. Its bibliography +referred to _The People of the Soviet Union_ by a “C. Lamont.” Lamont +readily admitted that he had written a book by that name in 1946, but +had never read or even heard of the long-named work in which it was +cited. In fact, he had tried to find a copy after it was mentioned by +McCarthy at a pre-hearing press conference, but was unable to locate +it. The Senator promptly asked Frank Carr to supply the witness with a +copy. He directed Lamont “to examine the document and then mark those +passages which come verbatim from your book.” + +Up to this point, there had been little to distinguish the proceedings +from the almost two hundred that had preceded it since the Wisconsin +Republican had decided that the national destiny called for more +drastic tactics than the Constitution permitted. Outside of the fact +that Louis Budenz, hardly a stranger at Congressional hearings, was +sitting in a corner of the room, the executive session seemed destined +for next morning’s back pages. But what had all the earmarks of an +innocuous little query began to stir things up. The question: “Do you +know a Mr. Louis Budenz, Mr. Lamont?” + +Lamont refused to answer the question. When McCarthy asked him for +his reasons, the witness offered to read his statement again, but the +chairman wasn’t having any more of that. Anticipating that Mr. Lamont +would still refuse to answer the question, he ordered him to do so. + + Q. I say, so the record is complete, you are being ordered to answer, + and I assume you are refusing to answer? + + A. Yes, on the grounds stated. + +The chairman followed up his first question about Budenz with another +concerning the ex-Communist. “Did you ever admit to Mr. Budenz, in a +telephone conversation” he asked him, “that you were a member of the +Communist Party?” Again, the witness failed to give satisfaction. “I +refuse to answer that on the same grounds, Mr. Chairman, as set forth +in this statement.” But he was quick to point out that he was not +standing on the Fifth Amendment. + + Q. You are not refusing under your rights under the Fifth Amendment, + right? + + A. No, no. + +With the cavalier observation that “I think it is necessary for the +Chair to order him to answer in case the committee decides to take +contempt proceedings against him,” McCarthy waited for his man to come +to heel. + +Lamont, who recognized a crossroads when he entered one, decided to +confer with Wittenberg. The chairman, while very solicitous of the +right of a witness to consult his attorney, reminded the official +stenographer to make a notation of the fact “so that the record is +complete.” After a brief parley, Lamont had his answer ready. “I am +declining to answer on the ground that I do not wish to involve myself +in controversy with a known provocateur, and I am a loyal American. As +I said in the statement, I am not and never have been a member of the +Communist Party.” No, he would not identify “the known provocateur,” +other than the “person you named in the statement, Mr. Chairman.” + +Then McCarthy turned to “a Clarence Hathaway.” Had the witness worked +with him “in connection with the penetration of various organizations +by the Communist Party?” Lamont objected to the form of the question +and, when his objection was promptly overruled, went back to his basic +point that the subcommittee did not have jurisdiction to interrogate +him. When the Senator pumped him as to whether he had been doing any +undercover work for any Communist Party members, the witness, after +characterizing the questions as “outrageous,” lapsed into stony silence. + +Scarcely concealing a growing jubilation, McCarthy decided that +it was time to remind the witness that he was digging a hole for +himself. After marking Lamont’s statement as Exhibit 1, he ordered the +stenographer to “have the record show the only grounds for the refusal +on the part of the witness are the grounds referred to in Exhibit +1; that the witness has said that he is not relying on the Fifth +Amendment.” When Wittenberg pointed out to him that his client had also +objected to the form of the questions, McCarthy brushed him aside. +However, like Lamont, Wittenberg, too, had his flinty side. “But, sir, +you were dictating to the stenographer the reason for the refusal +of the witness, and he should have the full record.” The chairman’s +answer was brief and conclusive: “You may show whatever you like in the +record.” + +Then McCarthy returned to Ernest J. Simmons and his _U.S.S.R., a +Concise Handbook_. But Lamont was just as adamant as he had been with +Budenz and Hathaway. As far as he was concerned, “the book speaks for +itself.” This was all the opening an old infighter, who had learned +his trade in the North Woods, needed. “You think the book speaks for +itself whether he [Simmons] was a Communist?,” he asked the witness. +Wittenberg’s somewhat hurried instructions to “decline to answer” +proved to be totally unnecessary since, like all good rhetoricians, the +chairman was determined to answer his own question. He leaned back in +his chair, tugged at his right ear lobe, and solemnly announced: “This +might be the first time today that I would agree with you. I think it +does speak for itself. He uses you and other men named as Communists +almost exclusively.” Lamont, who had been listening politely, hardly +seemed impressed by this revelation. + +By the time the five-o’clock shadow on the Senatorial jowls had reached +its hirsute zenith, Lamont had refused to answer some twenty-three +questions, one of which was framed in Russian and was destined to be +lost to posterity because the stenographer’s knowledge of the language +was limited to “Da” and “Nyet.” It was obvious that the witness was +more than prepared for any eventualities. When McCarthy pointed out to +him that “you can make a very good test case, Mr. Lamont,” Thomas W. +Lamont’s middle son replied, with some fervor, “I hope so.” + +As the long afternoon drew to a close, Lamont was ordered to come back +at ten o’clock on Monday morning, this time to Room 318 of the Senate +Office Building in Washington. When Wittenberg pleaded a previous +engagement, the time was changed to one p.m. Before the session ended, +McCarthy informed Wittenberg that, while he could not supply him with +a copy of the testimony, he was free to correct any errors in the +transcript when it was ready. As the brief cases were being snapped +closed, the chairman turned to apostate Budenz, whose role as the +silent observer was not his usual one. + + Q. Before we go, Mr. Budenz, you have listened to the testimony. Can + you identify this as the man whom you discussed in your testimony + before? + + A. Yes, sir. + + Q. Good. + +No sooner had Lamont and his retinue walked down the courthouse steps +than the Senator closeted himself with the waiting reporters who knew +that a subcommittee rule that “all testimony taken in executive session +shall be kept secret and will not be released for public information +without the approval of a majority of the subcommittee” had never stood +in its chairman’s way before. + +Two days later, Irving Like received a call from a member of the +subcommittee’s staff, informing him that there had been a change of +plans and that Dr. Lamont’s appearance on Monday, the twenty-eighth, +would be quite unnecessary. Like stated that his client would show up +in Room 318 of the Senate Office Building at the appointed time unless +the oral adjournment was confirmed in writing. At 2:41 p.m. a telegram +was dispatched from Senator McCarthy’s office, addressed to Corliss +Lamont. + + PURSUANT TO CONVERSATION WITH MR. LIKE OF MR. WITTENBERG’S OFFICE + THIS DATE, YOUR APPEARANCE BEFORE THIS SUBCOMMITTEE IN WASHINGTON, + D. C. ON MONDAY, SEPTEMBER 28, 1953, HAS BEEN POSTPONED. HOWEVER, YOU + ARE UNDER CONTINUING SUBPOENA AND BOTH YOU AND YOUR COUNSEL WILL BE + NOTIFIED WHEN YOUR APPEARANCE IS REQUIRED. + + JOE McCARTHY, CHAIRMAN SENATE PERMANENT SUBCOMMITTEE ON INVESTIGATIONS + OF THE SENATE COMMITTEE ON GOVERNMENT OPERATIONS. + +Wittenberg received a similar wire. + +At ten a.m. on Monday morning, McCarthy and five members of his staff +marched with measured tread into Room 318. The chairman solemnly called +the committee to order. “We had announced last week that Mr. Corliss +Lamont would be before the committee today, Mr. Lamont has not been +subpoenaed. He was notified that he could come today and purge himself +of the contempt for failure to answer last week.” As his words trailed +off into ether, McCarthy looked around the room and, with a bemused +innocence that would have put Scarpia to shame, asked, “Is Mr. Lamont +here?” The official transcript notes that “There was no response.” With +a grave shake of his head, the chairman ordered Lamont’s testimony made +public “so that the reason for the citation for contempt will be very +clear.” + +On October 2nd, Dr. Lamont wrote to the Senator and reminded him that +he was indeed under subpoena on September 28th, and that his appearance +in Washington had been postponed by McCarthy himself. Almost a month +later, he received a brief letter from Frank Carr, informing him that +he had been entirely correct in his earlier communication and that the +transcript of the hearing would be rectified accordingly. The next day, +Lamont addressed another letter to McCarthy, asking how he intended “to +make the record conform to fact and correct the flagrant injustice to +me.” There was no answer. + +McCarthy didn’t get around to Lamont’s citation for contempt until +the following July. In between, he had found bigger game. On January +30th, Major Irving Peress, an army dentist, had refused to answer +some questions put to him by the Wisconsin Senator on the ground that +his answers “might tend to incriminate me.” Three days later, Peress +was given an honorable discharge and became, posthaste, the Fort +Sumter of his time. When McCarthy, in a temper tantrum over Peress’ +recent promotion to major, told Brigadier General Ralph W. Zwicker, +who had distinguished himself at the Battle of the Bulge, that he +was “a disgrace to the uniform [and] not fit to be an officer,” the +long-simmering conflict between the Senator and the Administration +was in the open. On February 21st, Secretary of the Army Robert T. +Stevens finally screwed up his courage and condemned what he termed +“the humiliating treatment” Zwicker had received, and the White House +followed suit on March 3rd when it announced that no officer was +required “to submit to any kind of personal humiliation when testifying +before Congressional committees or elsewhere.” Indian Charlie’s knee +had found its target at last. + +A week later, Stevens released a thirty-four-page report which, +in effect, accused Frank Carr and Roy M. Cohn, the subcommittee’s +chief counsel, of persecuting the Army for its failure to defer or +commission G. David Schine. In retaliation, McCarthy asserted that +Stevens and his generals were holding Schine as a “hostage” in order +to prevent a thorough investigation of the Fort Monmouth personnel. +The net result--thirty-six days of testimony, 187 hours of televised +proceedings, thirty-two witnesses, and 7424 pages of transcript. The +hearings, which were conducted before the temporarily McCarthy-less +Permanent Subcommittee, made Joseph Welch famous, established “point of +order” as a household phrase, cost both Cohn and Carr their jobs, and +started the soybean trader from Appleton on his Retreat from Monmouth. +Although the major charges of both sides went largely unsubstantiated, +it was clear, as a suddenly fearless Stuart Symington told the +two-penny Torquemeda (and a national television audience) that no one +was “afraid of anything about you” anymore. Apparently, Joe Welch +wasn’t the only one who “had never really gauged your cruelty or your +recklessness....” The bubble had, at long last, resoundingly burst. + +It was at this ticklish moment in his career that McCarthy urged his +fellow Senators to cite Lamont for contempt. On July 16th, four days +before Cohn’s resignation, he introduced Resolution 281, which asked +the President of the Senate to forward the Lamont case “to the United +States Attorney for the Southern District of New York to the end that +the said Corliss Lamont may be proceeded against in the manner and +form provided by law.” Accompanying the resolution was a carefully +edited version of the Lamont testimony, which omitted any reference to +the affirmation incident or the discussion of the adjournment date. +Apparently, photographs weren’t the only things that could be cropped +if one had a talent for that sort of business. + +It wasn’t until August 11th that McCarthy’s resolution reached the top +of the Senate agenda. Nine days earlier, Senator Ralph E. Flanders’ +Resolution 301 to censure his Wisconsin colleague had been referred to +a select committee of three Republicans and three Democrats, headed by +Utah’s austere Arthur V. Watkins. This didn’t seem to faze McCarthy, +who blithely informed his brethren that he had received an opinion +from the Attorney General that the matter of Lamont’s recalcitrance +“could well be submitted to the grand jury for indictment.” When New +York’s Lehman let it be known that he intended to object to any summary +treatment of the resolution, McCarthy suddenly remembered that he had +left a “number of witnesses” simmering in the committee room, and +hurriedly left the chamber. + +Because of Lehman’s objections, it was not until August 16th that full +debate began on the Lamont citation. The late Senator Langer, with +McCarthy baying at his heels, spread on the pages of the Congressional +Record the complete story of the adjournment of the September +hearing to one o’clock on the afternoon of the following Monday, and +the subsequent telegrams which postponed it until further notice. +McCarthy’s defense was that Lamont had been “told by telephone that +if he wanted to appear and purge himself of contempt, Monday would be +the deadline....” It was simply a case of a refusal to take advantage +of some misguided but well-intended official benevolence. Besides, why +all the furor about this “very wealthy man, not in his own right, but +through inheritance,” who had “done more to damage this nation than +any other man in the country, with the possible exception of Frederick +Field.” + +Langer didn’t seem particularly concerned with the size of Lamont’s +bank roll. Observing that the only thing in which he was interested was +“fair play to the witness,” the Senator from North Dakota hammered +home his thesis that McCarthy had been guilty of a gross misstatement +when he had announced on September 28th that “Mr. Lamont has not been +subpoenaed.” Just read the telegrams of September 25th, he urged his +fellows: what could be plainer than the words “You are under continuing +subpoena”? Obviously, there was little a body could say about that and +the Badger State’s junior Senator slipped out the back of the Senate +chamber. + +He returned shortly after Langer had yielded the floor to Lehman who +decided to explore McCarthy’s insistence that Lamont explain why he +chose to affirm rather than take an oath. With a fat tongue in a fat +cheek, McCarthy assured the Senators that he was certain that Lehman +was “not doing it at all purposely” when he had misinformed them. The +real truth of the matter was, he told them, that, while a witness had +the right to affirm, he had to state that he had religious scruples +against an oath. This was too much for New Mexico’s Chavez whose Jesuit +law school training had taught him that there was no difference between +swearing and affirming, and that neither had to be explained. + +But Lehman’s real argument against the proposed citation had nothing +to do with whether a man took an oath or not. He reminded the Senate +that another case--_United States v. Emspak_--which involved the extent +of Congressional investigating powers, was pending before the Supreme +Court. Since he was certain that its decision would be handed down in +“a reasonable number of months” (it took eight), he saw no reason for +not adjourning the proposed citation for a little while. McCarthy, +who had been pleading with Lehman to yield the floor, could restrain +himself no longer. Why, this man Lamont, he reminded his friend from +New York, has never reformed. “He is the same tool of the Communist +conspiracy.” Did the Senator realize that, as late as May of 1954 the +witness had had the effrontery to attack “every committee that has ever +exposed a Communist from the committee headed by Martin Dies, down to +date?” Such a man was totally unworthy of any Senatorial support. + +Just as it looked as if Lehman was getting somewhere, pro-citation +help arrived from an unexpected quarter. Leverett Saltonstall heaved +his lanky bulk out of his chair and persuaded the New Yorker to give +him a moment. He had known Lamont since the latter was ten years old. +He had nothing but respect for his parents and his brothers but, as +for Corliss, he was “different from his brothers,” who were doing very +nicely indeed. The difference, as he explained it, seemed to lie in +the fact that “he is a man who has very firm opinions.” Naturally, the +Senator from Massachusetts thoroughly disagreed with those opinions, +notwithstanding their firmness. In fact, on one occasion, he had come +to blows with Lamont over his unorthodox views. The best thing the +Senate could do “would be to cite him for contempt and let the court +decide on the issues and the facts as we have presented them here +tonight.” The successor to Sam Adams, John Hancock and James Otis had +spoken. + +After Wayne Morse had nobly declaimed that “we, as Senators, owe +it to our committees to support them when they come to the floor +of the Senate and make a prima facie case in support of a contempt +citation,” Lehman made his final pitch. He didn’t believe that the +record justified Lamont’s citation. “I very much fear,” he said, “that +very serious results may ensue if we permit the record to remain +unchallenged and merely say that because a committee brings in a +resolution of citation for contempt, the Senate should, in the natural +course of events, vote in favor of such resolution. I regard it as a +very dangerous procedure.” + +But, despite a last ditch stand by Langer, Senator Thomas H. Kuchel, +who was presiding, finally put the matter to a vote. The result was +seventy-one yeas and three nays. Only Messrs. Chavez, Langer and Lehman +voted against the citation. On October 14th, a Federal grand jury in +New York, in Indictment No. C 145-216, accused Lamont of refusing to +answer the twenty-three questions that McCarthy had asked him one year +and three weeks before. The next day, the defendant pleaded not guilty +and was released on $1000.00 bail. The gauntlet he had thrown down in +the same courtroom on a sunny fall day in 1953 had at last been picked +up. + +But the junior Senator from Wisconsin was hardly in a position to gloat +over his triumph. Three weeks before Lamont’s indictment, the Watkins +Committee had unanimously recommended that the man from Appleton be +censured by his colleagues. In its report, the Select Committee, which +had been handpicked by Vice-President Nixon, stated that McCarthy +had been guilty of contempt of the Senate and had flagrantly abused +General Zwicker. It wasn’t until the beginning of December that the +upper house, by vote of 67 to 22, got around to “condemning” rather +than “censuring” him, mainly for his attack on the Select Committee +itself. Five days later--on the thirteenth anniversary of the Japanese +bombing of Pearl Harbor--“Tail Gunner Joe” retaliated by apologizing to +the American people for supporting Eisenhower in 1952. A man guilty of +such a “shrinking show of weakness” just wasn’t fit to occupy rent-free +government quarters at 1600 Pennsylvania Avenue. + +On October 29, 1954, Wittenberg moved to dismiss the indictment against +his client on fifteen grounds, the most important of which were his +claims that no Congressional committee had the constitutional right to +interfere with a private citizen’s First Amendment rights, and that the +Permanent Subcommittee was not authorized to conduct its investigation +of Lamont. Four weeks later, Wittenberg and J. Edward Lumbard, the +United States Attorney, took all day to argue their respective points +before District Judge Edward Weinfield. Then they sat back and waited +for him to make up his mind, a process that was to take two days short +of eight months. + +While Weinfield’s meditations were in progress, the _Emspak_ case, +which Lehman had tried to use as a roadblock the preceding August, +was decided by the Supreme Court. In it and a companion case--_Quinn +v. United States_--Chief Justice Warren put a brake on the powers +of Congressional committees. “The power to investigate,” he said, +“... is also subject to recognized limitations. It cannot be used +to inquire into private affairs unrelated to a valid legislative +purpose.” With what many observers believed was a judicial slap at the +suddenly vulnerable gentleman from Wisconsin, Warren let it be known +that the Court would accept nothing less than a rigid adherence to +what he called “minimal procedural standards” as far as legislative +investigating committees were concerned. + +On July 27, 1955, Weinfield announced his decision. He agreed with +Wittenberg that, since the indictment did not allege that Lamont’s +refusal to answer the twenty-three questions was wilful, it was fatally +defective. But he refused to rest his opinion on the safe ground of +improperly drawn charges. He found that there was no evidence that the +Permanent Subcommittee ever had the authority to conduct an inquiry of +Lamont--or of other witnesses for that matter. Lastly, even assuming +that McCarthy had the power he claimed, the judge wasn’t convinced that +the Lamont interrogation was within the scope of that power or that +any of the questions were pertinent to an investigation of “Communist +Infiltration into the Army.” One week later, Senator Langer, with the +pious observation that he hoped that “we shall stand fast in following +our conscience and doing what is right, in accordance with the truth, +in any matters which may develop, even though such a course may be +unpopular,” obtained unanimous consent for Weinfield’s opinion to be +printed in the Congressional Record. + +But there was still some life left in the prosecution. Paul W. +Williams, Lumbard’s successor, decided to appeal to the United States +Court of Appeals for the Second Circuit, a redoubtable bench that sat +three floors above Weinfield’s courtroom. The arguments were much the +same as they had been in the District Court. The Government insisted +that “wilfullness” was not an element of Lamont’s crime and that it did +not have to allege that the McCarthy subcommittee was “duly empowered” +to hold its hearing. Wittenberg, on the other hand, was content to ride +along with Judge Weinfeld’s interpretation of the law. + +On August 14, 1956, the three judges on the appellate court affirmed +the dismissal on the somewhat narrow ground that the Permanent +Subcommittee on Investigations did not have the authority to venture +down the path along which its chairman had led it. This, they reasoned, +made the defendant’s First Amendment objections moot. _Ad quod non fuit +responsum._ + +Williams made no effort to ask the Supreme Court to review the adverse +ruling, and, on September 13th, a consent decree was entered, ending +the case against Dr. Lamont. Just ten days short of three years +since he had refused to answer McCarthy’s twenty-three questions, +the taciturn witness was home free. At long last, the rampage was +officially over. As the _Hartford Times_ editorialized, “It is all +couched in quiet judicial language, of course, but what it really says +is that Senator McCarthy and the Committee were asking questions about +things that were none of their business.” + +When it became clear that the Government had no intention of carrying +the case any further, Lamont told the press that “I am very glad +that my court battle has resulted in hammering another nail into the +political coffin of Senator McCarthy.” But the Lamont case had little +to do with what Richard H. Rovere has referred to as the “interior +collapse” which had afflicted Timothy and Bridget McCarthy’s fifth +child after the Army hearings. For the last two and a half years of his +life, he was back where he had been before the Wheeling revelations, a +dispirited jackstraw who began to spend more time in the hospital than +he did on the floor of the Senate. + +On April 28, 1957, he entered the Naval Medical Center at Bethesda, +Maryland, with what his wife described as a “knee injury.” Later, +his condition was diagnosed by the Navy doctors as “peripheral +neuritis.” At 6:02 on the evening of May 2nd, he died of “acute +hepatic infection,” which his enemies intimated had been caused by an +overabundance of bourbon. After a funeral in the Senate chamber, he +was flown back home to Appleton where he was buried in the cemetery of +St. Mary’s Church, a rather pretty spot overlooking the meandering Fox +River. The golden years were over. + +But if Lamont, as an individual, had no more to do with McCarthy’s +overnight submergence than did Annie Lee Moss, Irving Peress, Ralph +Zwicker, Owen Lattimore, and the others who had to endure his bad +manners, churlishness and downright lunacy, he was very much a part +of the cumulative evidence against the grand inquisitor. Too many +scalps too soon might have been Indian Charlie’s considered verdict. +In the last analysis, it was probably the conservatives who defeated +McCarthy, but it was only when they became frightened at what might be +the logical extension of his maltreatment of those who could hardly be +classed as toilers in their vineyards that they finally closed ranks +and smoked out the Big Bad Wolf from Shawano County. American populism +would have to find some way to get rid of the Lamonts before it found +another champion. + + + + +10 + +_Five Against God_ + +Steven I. Engel, Daniel Lichtenstein, Monroe Lerner, Lenore Lyons and +Lawrence Roth + +_versus_ + +The Board of Union Free School District Number Nine, New Hyde Park, N. +Y. + + +In the fall of 1951, the Board of Regents of the University of the +State of New York, which included members of the three major religious +faiths, unanimously adopted a twenty-two-word non-denominational prayer +for use in the public schools. “Almighty God,” it read, “we acknowledge +our dependence upon Thee and we beg Thy blessings upon us, our parents, +our teachers and our Country.” In recommending the prayer to local +school districts, the thirteen Regents suggested that it be recited +in conjunction with the pledge of allegiance to the flag. “We are +convinced,” they said, “that this fundamental belief and dependence of +the American--always a religious--people is the best security against +the dangers of these difficult days.” + +On July 8, 1958, the five-member Board of Education of the Herricks +Union Free School District in New Hyde Park, a Long Island suburban +community, some twenty miles due east of New York City, by a vote of +four to one, adopted a resolution “that the Regents’ Prayer be said +daily in our schools,” and directed District Principal Lester Peck +“that this be instituted as a daily procedure to follow the Salute +to the Flag.” The board’s action was duly reported in _On Board_, +its official bulletin, which was distributed to all taxpayers in the +district. Lawrence Roth, a plastics manufacturer who had moved to Long +Island from New York City seven years earlier, was one of the issue’s +most interested readers. + +Roth, a slim, bespectacled man in his middle forties, whose sons, +Joseph and Daniel, attended two of the district’s seven schools, was +distressed by the board’s action. Although he had been vaguely aware +that there was some pressure to introduce the Regents’ Prayer into the +district’s schools, he also knew that six previous attempts to do so +had failed. The school board’s sudden about-face caught him completely +by surprise but, being what his lawyers were later euphemistically +to call a “non-believer,” Roth was deeply disturbed by the prayer’s +implications. His two sons, who were ten and thirteen years old, shared +his religious views, and he was concerned with their spiritual and +psychological reaction to the new prayer that was scheduled to start in +September. + +Roth began to discuss the problem with a Catholic neighbor who shared +a seat with him on the commuter train to New York City which left the +Long Island Railroad’s Albertson station in Rosalyn Heights at 7:03 +each morning. It wasn’t long before the plastics manufacturer realized +that his knowledge of the United States Constitution as it affected +church-state relationships was extremely limited. When his commuter +friend recommended that he contact the New York Civil Liberties Union, +Roth called that organization at once and spoke to George Rundquist, +its energetic director, who suggested that he drop in for a chat at his +earliest convenience. + +In early August, Roth, who was now more uneasy than ever about the +Regents’ Prayer, arrived at Rundquist’s ninth-floor office on lower +Fifth Avenue. Although the latter shared Roth’s doubts about the +prayer’s constitutionality, he pointed out that any legal action to +invalidate it would almost certainly subject Roth and other parents +who might join with him to strong community pressures. “You will be +hated and despised by most of your neighbors,” Rundquist told his +caller, “and your children will have to face the scorn of many of +their classmates. But if you are willing to endure all of this, I’ll +query our board of directors.” Roth nodded his head. “I’m willing,” he +replied firmly. + +On September 4, Rundquist sent a memorandum to the members of his board +which detailed several items on the proposed agenda for their regular +monthly meeting five days later. Item II read as follows: + + + Regents’ Prayer For Public Schools + + + The Situation: + + On July 8 the School Board of the Herricks Union Free School + District (Nassau County) voted that the school day shall be opened + by recitation of the following prayer, recommended by the Board + of Regents in November, 1951: “Almighty God, we acknowledge our + dependence upon Thee, and we beg Thy blessings upon us, our parents, + our teachers and our country.” + + At the time that the proposed prayer was released the NYCLU, along + with many civic organizations, expressed its opposition to reciting + this prayer in the public schools through a public statement to the + press and a letter to the New York City Board of Education (December, + 1951). We also requested that the matter be considered at a public + meeting so that we might have an opportunity to present our views on + the matter. + + Because of public reaction to the Regents’ proposal, the New York City + Board of Education took no action until January 15, 1953. At that + time, it adopted a resolution that students sing the fourth stanza of + “America” each school day, following the Pledge of Allegiance: ‘Our + fathers’ God, to Thee/Author of Liberty/To Thee I sing/Long may our + land be bright/With freedom’s holy light/Protect us by Thy might/Great + God, our King. + + + The Question: + + Should the NYCLU adhere to the policy adopted in 1951? If so, shall + we implement our position by supporting a group of residents in the + Herricks School District who seek to enjoin the School Board from + proceeding with the recitation of the prayer? + +The 1951 letter to which Mr. Rundquist referred had been sent to +Maximilian Moss, the President of the New York City Board of Education. +In it, John Paul Jones, then the Union’s chairman, had asked for +a public hearing before the Regents’ Prayer was considered. “Our +opposition,” Jones had written, “is based in law upon the ruling of +the United States Supreme Court that neither a state nor the Federal +government can set up a church. Neither can pass laws which aid one +religion, aid all religions, or proffer one religion over another. The +Union believes that the proposed non-denominational prayer falls within +the ban of the First Amendment as thus interpreted by the Supreme +Court.” + +Jones was quick to point out that his organization had no objection +to programs devoted to spiritual teaching, but that, since it was +impossible to present such programs without interpretation, they would +inevitably lead to the expression of sectarian points of view. “Our +opposition to the proposal of the Regents is not opposition to the +teaching of religion,” he concluded. “But it is the belief of the Union +that the teaching of our spiritual heritage, through prayer and special +programs, is the function of religious leaders and of parents and not +the proper function of public school teachers conducting classes in a +public school supported by public funds.” + +On September 9, Rundquist reviewed the situation for the Union’s Board +of Directors at their regular luncheon meeting at a midtown hotel. +While several of his listeners thought that it would be wiser to work +through the legislature rather than the courts, the majority voted +to assist Roth and his neighbors with legal help. “It was moved and +passed,” the minutes of the meeting read, “that we re-affirm our 1951 +position in opposition to the prayer and, assuming that we have counsel +willing and with time to take over, that we intervene in the case.” + +As soon as Rundquist returned to his office, he put in a call to +William J. Butler, a former staff counsel of the American Civil +Liberties Union, who had specialized in corporation law since entering +private practice. Butler, a tall, stocky Harvard graduate in his middle +thirties, whose four grandparents had all migrated to the United States +from Ireland, and two of whose uncles were priests, was married to +the daughter of Arthur Garfield Hays. An ensign in the merchant marine +during World War II, he was a sailing fan who missed no opportunity to +be on or near open water. + +Quickly, Rundquist explained that the Union had decided to support +Roth. Was Butler interested in handling such a case? He was. “I +consider this prayer ruling a dangerous threat to freedom of religion” +he told Rundquist. “That is why I will take the case.” Ten minutes +later, the lawyer was talking to Roth. He had only one request to make +of the plastics manufacturer. He would like a group of plaintiffs +who represented a religious cross-section of the community and which +contained no agnostics or atheists. “I’ll do my best, Mr. Butler,” Roth +promised. + +As soon as he returned home that evening, Roth placed advertisements in +the _Roslyn News_ and the _Williston Times_, asking for people who were +interested in challenging the Regents’ Prayer to contact him. Within +two weeks, he had assembled the names of fifty Protestants and Jews +as well as one Catholic. But it wasn’t long before his list began to +shrink “We found,” Roth later revealed, “that there was going to be a +substantial amount of pressure and even vilification and hostility. One +couple were 100 per cent with us until they spoke to their minister. +Then they came to me and said, ‘We’re still with you but our minister +said this is a controversial matter and we can’t join you.’” One of the +project’s most enthusiastic supporters quit when his employer warned +him that “it was foolish to get mixed up in controversial cases.” +Finally, after two weeks of intensive effort, Roth was left with only +four willing parents whose children would not graduate before the +impending test case wound its way through the courts.[1] + +[1] Seven years earlier, a suit challenging the reading of verses +from the Bible in New Jersey public schools had been dismissed by the +United States Supreme Court because all of the plaintiffs’ children had +graduated before the case reached its docket. + +In addition to Roth, the prospective plaintiffs whose names were +given to Butler early in October were composed of three men and one +woman. Steven I. Engel, a big, balding man in his late thirties, whose +seven-year-old son Michael attended the Searington School, was the +international sales manager for a textile firm. A precise speaker, +Engel was a Reform Jew. Forty-five-year-old Daniel Lichtenstein, a +manufacturer’s representative, had three children in the district’s +schools. Like Engel, he was Jewish and had emigrated to Nassau +County from Brooklyn. A deeply tanned, stocky man with an outgoing +personality, he was a handball and bridge expert. Paradoxically, he had +served as campaign manager for Mary Harte, the school trustee who had +moved the adoption of the Regents’ Prayer, when she first ran for the +Board of Education. + +Monroe Lerner, an account executive in a Wall Street firm, was an +analytical man who was not one to make any hasty decisions. Tall and +balding, he had one child, seven-year-old Cynthia, who attended the +Searington School. He was a member of the Ethical Culture Society. +Lenore Lyons, whose husband did not share her antipathy toward the +Regents’ Prayer, was a tall, dark-haired woman with three children of +school age. Easily the most attractive member of Roth’s little band, +Mrs. Lyons was the Religious Education Chairman at the Unitarian Church +she and her family attended. + +Before resorting to the courts, the prospective plaintiffs were +required by law to submit a formal request to the school board asking +it to rescind its July resolution adopting the Regents’ Prayer. On +December 4, a letter signed by all five parents was mailed to the +school district’s Administration Building in New Hyde Park. “We, and +each of us,” it stated bluntly, “hereby demand that you discontinue, or +cause to be discontinued, the practice instituted for the first time at +the beginning of the current school year of having a prayer said daily +following the Salute to the Flag in all the schools of the district, +and particularly the schools which our children attend.” The prayer, +the letter continued, was “a violation of the Constitution of the +United States and of the State of New York.” + +On January 6, 1959, Florence Alnwick, the clerk of the Board of +Education, wrote to Butler. “As you are probably aware,” she said, “the +Education Law confers certain authority upon the Board of Education +and pursuant thereto the Board of Education on July 8, 1958, adopted +a resolution authorizing and directing the daily use of the Regents’ +recommended prayer, to which you refer, in the schools within the +district.” Accordingly, she had been directed by the Board of Education +to advise the lawyer that no further action on the subject of the +prayer was contemplated. + +While he had been waiting for the Board’s reply, Butler had not been +idle. Anticipating a negative response, he had began preparing a +petition to the Nassau County Supreme Court shortly after his five +plaintiffs had been selected. By year’s end, he had, with the aid +of his partner, Stanley Geller, whose resemblance to Gregory Peck +was startling, finished his labors and, two days before receipt of +the board’s letter, the petition was verified by Roth and his fellow +plaintiffs. Addressed to William J. Vitale, Jr., Philip J. Fried, Mary +Harte, Anne Birch and Richard Saunders, the members of the Board of +Education, it asked the court to direct them “to discontinue or cause +to be discontinued in the schools of said district the saying of the +prayer designated as the Regents’ Prayer.” + +In the main, the plaintiffs claimed that “the saying of said prayer and +the manner and setting in which it is said,” violated both the Federal +and State Constitutions. According to them, District Superintendent +Peck had established a daily ritual for saying the Regents Prayer. +“Each morning at the commencement of each day in each school following +the salute to the Flag,” their petition read, “the said prayer is said +aloud. The prayer is led by the teacher or by a student selected by the +teacher with the other students joining therein. The prayer is said +with the hands clasped together in front of the body, fingers extended +and pointed upwards in the manner of a suppliant. During the saying of +the prayer, no student is permitted to leave the classroom.” + +On February 18, the school board served its answering papers on +Butler. Represented by handsome, dark-haired Bertram B. Daiker of the +Port Washington law firm of Gunn, Neier & Daiker, it denied that the +saying of the Regents’ Prayer violated either the United States or the +New York Constitutions. Moreover, it claimed that, not only did the +petitioners lack the power “to interfere with the saying of the prayer +by the children of others under the color of judicial process or +otherwise,” but that their lawsuit, if successful, would be tantamount +to an interference with freedom of religion. + +An affidavit by William J. Vitale, Jr., the dapper president of the +school board, accompanied the latter’s answer. Vitale pointed out +that, since the beginning of the school year, only one parent had +requested that his child be excused from the saying of the prayer. In +addition, no child had asked to leave the room during the prayer. As +for the petitioners’ claim that children had been forced or shown how +to pray, this was simply not the case. “On the contrary,” he said, “the +principals and teachers in the School District have been directed and +are following the directions that under no circumstances shall a pupil +in any way be made or encouraged to join in the prayer and no teacher +has instructed the pupils how they are to hold their hands or otherwise +conduct themselves during the saying of the prayer.” + +Both as a school board member and a father, Vitale felt that the prayer +was beneficial. “I am fully conscious of the need for instilling in the +youth of today some recognition of the moral and spiritual values which +are part of the heritage of this country and of this state,” he argued. +“The brief moment of prayer, by those who join in it at the opening of +school each day, cannot help but remind those children, in the words of +our State Constitution, that by acknowledging their dependence on God, +they may ‘secure’ the blessings of Freedom granted by Almighty God.” + +With the issue clearly joined, interest in the pending case began +to develop rapidly. On February 24, sixteen residents of the school +district applied for the right to intervene in support of the Regents’ +Prayer. Speaking through their attorney, tall and articulate Porter +R. Chandler, a former president of the Guild of Catholic Lawyers, +they maintained that they had sufficient interest in the retention +of the prayer to be allowed to participate. Although Butler objected +strenuously to their motion, it was swiftly granted by Judge Bernard +S. Meyer. The intervenors’ participation, however, was limited to the +merits of the constitutional questions raised by the petitioners. + +While they were waiting for their case to be argued, the plaintiffs had +good cause to recall Rundquist’s warning to Roth in September. From the +time their suit became known, all five were harrassed by threatening +letters and telephone calls. One caller told Roth that an organization +known as the Union Street Benevolent Society was preparing to bomb his +home. On many nights, the plastics manufacturer was forced to take his +telephone receiver off the hook in order to sleep. “We’re going to blow +up your car,” one gruff voice said. “Keep your eyes on your children,” +another warned. + +On February 24, the contentions of all the parties were argued before +Judge Meyer in the spacious county courthouse on Mineola’s Old Country +Road. It took the tall, youthful-appearing judge exactly six months +to reach his decision. In a sixty-six-page opinion, he came to the +conclusion the school board’s resolution did not violate the federal or +state constitutions. In particular, he stressed that “the recognition +of prayer is an integral part of our national heritage [and] that +prayer in the schools is permissible, not as a means of teaching +‘spiritual values,’ but because ... at the time of the adoption of the +First and Fourteenth Amendments this was the accepted practice.” + +However, he did find fault with the board’s resolution of July 8, 1958, +which directed “that the Regents’ prayer be said daily in our schools.” +Because the resolution was couched in what he called “mandatory terms,” +Meyer ordered Vitale and his fellow board members to modify it so as +“to establish a procedure whereby the parents of each child are advised +of the adoption of the resolution calling for the saying of prayer, of +the wording of the prayer and of the procedure to be followed when it +is said and requested to indicate whether the child shall or shall not +participate in the exercise.” The case was “remanded to the Board of +Education for further proceedings not inconsistent with this opinion.” + +At the end of his long opinion, the judge thanked all the lawyers +involved “for the excellent presentation, not only in oral argument, +but in the original and supplemental briefs.” In closing, he referred +to an 1837 opinion of the Superintendent of Common Schools of the State +of New York. “Written one hundred and twenty years ago,” he said, “the +following statement, in the Court’s view, most completely conforms to +the requirements of both constitutional law and reason: ‘The simple +rule, so to exercise your own rights as not to infringe on those of +others, will preserve equal justice among all, promote harmony, and +insure success to our schools.’” + +Ten days after Judge Meyer’s decision, the school board took steps +to comply with the latter part of his order. In a brief regulation, +teachers were directed to refrain from commenting “on participation or +non-participation in the exercise.” In addition, children whose parents +had submitted written requests to the principals of their schools were +“to be excused from participating or from the room during the prayer +exercise.” Five days later, each parent in the district received a +letter from District Principal Peck. After setting forth the prayer, +Mr. Peck informed his addressees that “any parent or guardian who does +not wish his child to say the prayer is requested to write a letter to +the principal of the school his child attends, indicating whether he +wants his child excused from the room or to remain silent while the +prayer is being said.” + +In October, Butler appealed to the Appellate Division of the Supreme +Court. During the year that intervened before the case was finally +argued before the five-judge court, the school board asked Judge Meyer +to dismiss the proceeding on the merits. According to Philip J. Fried, +who, on July 1, had succeeded Vitale as the board’s president, Peck’s +letter to the district’s parents fully complied with Meyer’s decision +and there was no longer any reason for delaying the inevitable. Meyer +bowed to Fried’s inescapable logic. On March 17, 1961, he stated: “It +appearing to the court that respondent has complied with the directions +contained in the opinion of this court in this proceeding dated August +24, 1959, it is ordered that this proceeding be and is dismissed on the +merits.” + +In opposing the board’s motion, Roth _et al_ claimed that Peck’s letter +did not cure the fundamental defects involved in the saying of the +Regents’ Prayer. “Petitioners maintain,” they said, “that the saying +of the so-called ‘Regents’ Prayer’ in the schools ... at the direction +of and under the auspices of the Board of Education, violated the +Constitutions of both this State and the United States. They maintain +that the matter of the prayer is not within the cognizance of the +Board and should not have been remanded to respondents for further +action. They do not believe, therefore, that any actions taken by +respondents on remand could have cured the fatal defects in the saying +of the Prayer. Indeed, petitioners submit that any actions taken +by respondents since remand constitute an additional violation or +additional violations of the State and Federal Constitutions.” + +On October 17, the Appellate Division refused to disturb Judge Meyer’s +ruling. Four of the judges agreed fully with Meyer’s opinion. Associate +Justice George J. Beldock, however, although in favor of retaining the +school prayer, minced no words in declaring that he did not subscribe +to the lower court’s reasons for denying the petition. In particular, +he found fault with Meyer’s rationale that he was sustaining the +prayer because it was “the accepted practice” before the adoption +of the federal constitution. As far as he was concerned, the prayer +was not religious training and, therefore, was not prohibited by the +Constitution. This, he concluded, is what Judge Meyer should have +stated in no uncertain terms. + +On May 25, 1961, Butler, Chandler and Daiker journeyed to Albany to +appear before the Court of Appeals, New York’s highest tribunal. There, +together with attorneys for the Board of Regents and the American +Jewish Committee, they argued the pros and cons of the school prayer +issue. Six weeks later, Chief Judge Charles S. Desmond, speaking for +himself and four of his colleagues, affirmed Meyer’s decision. In a +brief opinion, he stated that a belief in God “has been maintained +without break from the days of the Founding Fathers to the day of the +inauguration of President Kennedy.” + +He insisted that the Regents’ Prayer did not in the least infringe on +the rights of minorities. “Belief in a Supreme Being is as essential +and permanent a feature of the American governmental system,” he +emphasized, “as is freedom of worship, equality under the law and due +process of law. Like them it is an American absolute, an application +of the natural beliefs on which the Republic was founded and which in +turn presuppose an Omnipotent Being.” Although he was uncertain as to +the eventual success of the prayer service, he heartily approved of the +motives of both the Regents and the Herricks School Board. + +But, for the first time since the case had started its long, tortuous +climb up the judicial ladder, there was a dissent. Two of the seven +judges, Marvin R. Dye and Stanley H. Fuld, agreed with Butler’s +contention that the prayer was unconstitutional. “In sponsoring a +religious program,” they said, “the State enters a field which it has +been thought best to leave to the church alone. However salutary the +underlying purpose of the requirement may be, it nonetheless gives +to the State a direct supervision and influence that overstep the +line making the division between church and state and cannot help but +lead to a gradual erosion of the mighty bulwark erected by the First +Amendment.” For this reason, Dye and Fuld felt that the school board +should have been ordered to discontinue the use of the Regents’ Prayer. + +The way was now clear for Butler to ask the United States Supreme Court +to consider the case. On October 4, 1961, he filed a petition for a +_writ of certiorari_, a necessary prerequisite to an appeal. Two months +later, in a brief order, the nine justices granted the writ. Three +years, two months and twenty-five days after the board of the New York +Civil Liberties Union had voted to support Roth, the case, which was +now officially known as No. 468 of the high court’s October Term, 1961, +had finally reached Washington. + +Oral arguments in the Supreme Court’s stately first-floor courtroom +took place on April 3, 1962. In addition to the points raised by +Butler, Daiker and Chandler, the attorneys general of seventeen other +states joined Roger Foley, Nevada’s chief legal officer, in a brief +which urged Chief Justice Earl Warren and his eight colleagues to see +to it that “we shall ever remain a religious people” by sustaining the +Regents’ Prayer. The Synagogue Council, the American Jewish Committee, +the Anti-Defamation League of B’nai B’rith and the American Ethical +Union joined Butler in asking for a reversal of the lower court +decisions. + +The latter commenced his argument by reciting the Regents’ Prayer. +“What’s wrong with that?” interrupted Justice Harlan. “There’s nothing +wrong with that,” Butler replied. “We have no objection to the prayer +as such. I have come before this court to defend, not attack religion. +Our objection is to the use of public facilities for religious +purposes.” + +Frankfurter, who was destined to be disabled by a paralyzing stroke +three days later, broke in. “I want you to be perfectly candid with +me, Mr. Butler,” he piped. “Do you think the public school system +should be secularized?” The lawyer thought for a moment. “Yes, I do,” +he responded, “because, on balance, the threat to religious freedom is +so great that I would rather have secularization than the state in the +business of religion.” + +Justice Brennan had one question. Did Mr. Butler think that there was +any distinction between teaching religion and teaching about religion? +He did. “The first is objectionable,” he said. “The second is the duty +of the state.” Potter Stewart asked whether there was any difference +between the prayer and the Salute to the Flag. Butler didn’t hesitate. +“There certainly is,” he replied. “The prayer is a religious utterance +and the salute a political one.” + +During Daiker’s presentation, Warren wanted to know whether the school +board’s attorney considered the Regents’ Prayer a religious exercise. +“No, I do not,” the lawyer replied. “It is merely an expression of the +spiritual heritage of our nation, that the Founding Fathers believed +in God.” The Chief Justice smiled. “I would expect you to take that +position,” he commented wryly. Black had one question for Chandler. +Would he have any objection to the prayer had it been a Mohammedan +one? “I would, your Honor,” he answered. “A Mohammedan prayer does not +reflect the spiritual heritage of this country.” + +Monday, June 25, 1962, was the last decision day before the Supreme +Court adjourned for the summer. It also marked the end of Associate +Justice Hugo L. Black’s twenty-fifth consecutive term of court. In +a brief ceremony before attending to his crowded calendar, Warren +commended Black for his long service. “Of the ninety-seven justices +who have been appointed to the court,” he observed, “only sixteen have +served as long as Mr. Justice Black and none with greater fidelity +or singleness of purpose. His unflagging devotion has been to the +Constitution of the United States.” Black, who apparently had not been +informed in advance of the intended tribute, slumped in his seat as the +Chief Justice spoke. + +The prayer ruling was the first of seventeen to be announced by the +court. Authored by Black, the fifteen-page majority opinion came to +the conclusion that New York’s use of the public school system to +encourage recitation of the Regents’ Prayer was “wholly inconsistent” +with the First Amendment’s stricture against any law “respecting an +establishment of religion.” “The constitutional prohibition against law +respecting an establishment of religion,” Black wrote, “must at least +mean that in this country it is no part of the business of government +to compose official prayers for any group of the American people to +recite as a part of a religious program carried on by government.” +Accordingly, the judgment of the Court of Appeals was reversed by a +vote of six to one.[2] + +[2] Justices Frankfurter and White took no part in the decision, the +former being ill and the latter having just been named to the court by +President Kennedy. + +His opinion finished, Black looked up from the papers in front of him. +“The prayer of each man from his soul,” he said in a low voice, “must +be his and his alone. That is the genius of the First Amendment. If +there is any one thing in the First Amendment, it is that the right +of the people to pray in their own way is not to be controlled by the +election returns.” + +As the reporters rushed for the telephones in their basement press +room, Justice William O. Douglas began reading portions of a concurring +opinion which, while wholly in favor of the case’s result, went much +further than Black. As Douglas saw it, the Constitution prohibited +any form of “religion-financing” by government. This would include +chaplains in the armed forces, compulsory chapel at West Point and +Annapolis, federal or state aid to parochial schools, the use of the +Bible to administer oaths and the inclusion of God in the Pledge of +Allegiance. “Our system at the federal and state levels is presently +honeycombed with such financing,” he said. “Nevertheless, I think it is +an unconstitutional undertaking whatever form it takes.” + +He wanted it clearly understood that his reasoning did not stem +from any hostility toward religion. “The First Amendment leaves +the government in a position not of hostility to religion but of +neutrality,” he explained. “The philosophy is that the atheist or +agnostic--the non-believer--is entitled to go his own way. The +philosophy is that if government interferes in matters spiritual, it +will be a decisive force. The First Amendment teaches that a government +neutral in the field of religion better serves all religious interests.” + +Mr. Justice Stewart was the only member of the court to voice a +dissent. “I think the Court has misapplied a great constitutional +principle,” he declared. “I cannot see how an official religion is +established by letting those who want to say a prayer say it. On the +contrary, I think that to deny the wish of these school children to +join in reciting this prayer is to deny them the opportunity of sharing +in the spiritual heritage of our nation.” His brief opinion ended +with the observation that the patriots who signed the Declaration of +Independence did so with a self-styled “reliance on the Protection of +Divine Providence.” + +The majority decision caused an immediate reaction. George Andrews, an +outraged Alabama Congressman, complained that “they put the Negroes in +the schools and now they’ve driven God out.” New York’s Governor Nelson +Rockefeller, who apparently hadn’t read or understood Black’s opinion, +hoped that “adjustments” could be worked out that would make the prayer +acceptable to the Supreme Court. Francis Cardinal Spellman was “shocked +and frightened that the Supreme Court has declared unconstitutional +a simple and voluntary declaration of belief in God by public school +children.” On the west coast, James Francis Cardinal McIntyre, the +Archbishop of Los Angeles, called the decision “positively shocking and +scandalizing to one of American blood and principle.” + +Evangelist Billy Graham was “shocked and disappointed” by what he +called “another step toward secularism in the United States.” Right +Reverend James A. Pike, Bishop of the Protestant Episcopal Diocese of +California and a lawyer himself, said that he was surprised to see that +the Warren Court had extended “to an obviously non-sectarian prayer +the prohibition against ‘the establishment of religion,’ clearly +intended by our forefathers to bar official status to any particular +denomination or sect.” Representative John Bell Williams of Mississippi +called the decision part of “a deliberate and carefully planned +conspiracy to substitute materialism for spiritual values.” To Senator +Herman E. Talmadge of Georgia, it was “an outrageous edict which has +numbed the conscience and shocked the highest sensibilities of the +nation.” The Alabama legislature quickly passed a resolution terming it +“diabolical.” + +Herbert Hoover and many other prominent Americans demanded an immediate +amendment to the Constitution nullifying the prohibition against +the prayer. “The Congress should at once submit an amendment which +establishes the right to religious devotion in all governmental +agencies,” the former President said angrily. Representative Roy A. +Taylor of North Carolina, a Baptist deacon, complied at once. His +proposed amendment was as definite as it was brief. “Notwithstanding +the First and Fourteenth Amendments to the Constitution of the United +States,” it read, “prayers may be offered and the Bible may be read in +connection with the program of any public school in the United States.” +Senator James O. Eastland announced that the Senate Judiciary Committee +would meet at once to consider proposed amendments. + +But the decision was not without its supporters. Dr. Sterling M. +McMarrin, United States Commissioner of Education, felt that the +outlawing of the prayer was no loss to religion. “Prayer that is +essentially a ceremonial classroom function,” he explained, “has not +much religious value.” Dr. Edgar Fuller, Executive Secretary of the +Council of Chief State School Officers, stated that, “in my judgment, +the Supreme Court is right.” Senator Jacob K. Javits of New York +reminded parents that there was “plenty of opportunity to inculcate +religious faith in the children at home and at weekend religious +schools.” Rev. Dr. Dana McLean Greeley, president of the Unitarian +Universalist Association, said that “the Supreme Court has acted +clearly in support of the principle of the separation of church and +state as guaranteed by the First Amendment of the Constitution.” + +In Chicago, Dean M. Kelly, director of the National Council of +Churches’ Department of Religious Liberty, was enthusiastic about the +court’s action. “Many Christians,” he claimed, “will welcome this +decision. It protects the religious rights of minorities and guards +against the development of ‘public school religions’ which is neither +Christianity nor Judaism, but something less than either.” At his press +conference on June 27, President Kennedy said that he hoped that the +decision would come as “a welcome reminder to every American family +that we can pray a good deal more at home, we can attend our churches +with a good deal more fidelity, and we can make the true meaning of +prayer much more important in the lives of all of our children.” + +In their own area, the victorious plaintiffs were disconcerted by the +violence of the attack on the decision. Representative Frank J. Backer, +a Nassau County Congressman, called it “the most tragic in the history +of the United States.” William A. Bruno, a trustee of the nearby +Hicksville Board of Education, said that his district would retain +the prayer. “Let’s see what the Supreme Court will do about that!” he +chortled. He told a reporter for The New York Times that the ruling +proved that Robert Welch, the founder of the Birch Society, “had the +right idea in asking for the impeachment of the Supreme Court.” Robert +S. Hoshino, President of the mammoth Levittown School District, called +the decision a victory for Communism. “Levittown will not vote out the +Regents’ Prayer,” he prophesized. However, Dr. James E. Allen, Jr., the +State’s Commissioner of Education, reminded recalcitrant local school +boards that they would “have to enforce the Supreme Court decision +immediately.” + +Although they were bitterly disappointed by the case’s outcome, both +Vitale and Daiker indicated that the Herricks School Board would not +disobey the Supreme Court’s mandate. The former felt certain “that any +of the people involved are prepared to adhere to the decision of the +Court.” According to the lawyer, “the decision must be complied with.” +Each man stressed the fact that no child had been forced to recite the +prayer against its will. “At no time did we ever insist that a child +should say it,” Vitale declared. “We set up procedures so no one would +be compelled to say it and we felt sincerely we were not infringing on +anyone’s constitutional rights.” + +The plaintiffs were quietly jubilant over their triumph which the New +York Civil Liberties Union called a “milestone” in the separation of +church and state. Lenore Lyons said that the decision represented “both +liberal and conservative thinking of the Supreme Court.” Engel, Lerner +and Lichtenstein were “extremely happy.” Lawrence Roth, who referred +to himself as “a very religious person but not a churchgoer,” viewed +the case’s result as an indication of his conviction that “religious +training is the prerogative of parents and not the duty of the state.” +Butler claimed that the decision had helped rather than hindered +religion. “In this country, with its many different faiths, religion +has flourished because we have steadfastly adhered to the principle of +separation of church and state,” he said. “The Supreme Court has today +reaffirmed that principle.” + +With the case over, Roth and his co-plaintiffs revealed that, since +1959, they had been subjected to a variety of community pressures, +ranging from dirty looks to abusive telephone calls. In one house, the +latter had become so vituperative that the children were forbidden to +answer the phone. Many of the anonymous letters and postcards that had +arrived regularly at each of the five homes were obscene, anti-Semitic +or both. “Toward the end, it got so bad,” Roth said, “that my wife or I +made it a point of getting the mail before the children could see it.” + +Roth’s oldest son, Danny, who was now sixteen, said that his father’s +leadership of the anti-prayer fight had made it very difficult for him +at school. “There were arguments and pushing and name-calling,” he +recalled. “In the halls, kids would yell out: ‘You’re a Commie’ or ‘Go +home to Russia.’ At times I thought it might be easier for me if my +father stopped what he was doing. But I never wanted him to. I believe +very strongly that what he was doing was right. I’m very proud of my +father, you know.” + +The court’s decision heightened the bitter campaign against the +plaintiffs. Not only did the number of vituperative telephone calls, +letters and post cards increase, but Roth’s house was picketed by nine +members of the newly formed Nationalist Party bearing signs which read: +FBI, INVESTIGATE MR. ROTH! and IMPEACH THE PRO-RED SUPREME COURT. “The +harassing phone calls got so bad Tuesday night,” Roth said, “that we +finally had to take the receiver off the hook again. They were coming +in at the rate of two calls a minute.” The anonymous callers shouted +such threats as “Watch out for your child.... We’re going to blow up +your car.... Don’t leave your house--something is going to happen to +it.... We’ll get you.” One postcard was typical. “To the five Long +Island parents,” it began. “You damn Jews with your liberal viewpoint +are ruining the country.” + +In addition, at least one candidate in the New York primary campaigns +that began shortly after the decision, in an openly anti-Semitic appeal +to Roman Catholic voters in Queens County’s Eleventh Assembly District, +reminded them that the school prayer had been invalidated by persons +with Jewish names. “These are the names you should know,” began a +leaflet distributed by James E. McGinniss, an Independent Democrat, +“Stephen Engel, Daniel Lichtenstein, Monroe Lerner, Lenore Lyons and +Lawrence Roth. These people brought the legal action which resulted +in the banning of the ‘prayer’ in our public schools.” Mr. McGinniss +then urged registered Democrats to vote for him “if you want a public +official who will remember the ‘Presence of God’ and who will sponsor +and work for laws which will permit us to live and raise our children +as God-fearing citizens.”[3] + +[3] Mr. McGinniss was soundly defeated in the primary, running a poor +third to winner Hyman J. Greenberg. + +A week before the distribution of McGinniss’ fliers, the Jesuit +magazine _America_ chimed in with a warning “to our Jewish friends.” +In an outspoken editorial, the weekly reminded American Jewry that, +although it could not be held fully responsible for the school +prayer decision, its leaders would be well advised to curb the +activities of certain Jewish agencies which, the magazine claimed, +hoped to secularize public life from top to bottom. “It would be most +unfortunate,” the editorial concluded, “if the entire Jewish community +were to be blamed for the unrelenting pressure tactics of a small but +overly vocal segment within it. When court victories produce only a +harvest of fear and distrust, will it all have been worthwhile?” + +The Regents’ Prayer is no longer recited in the Herricks school +system--or, for that matter, anywhere else in New York State. But it +will be a long time before the five people whose efforts led to its +invalidation will be permitted to forget that they ran counter to the +strong feelings of their community. “Mr. Rundquist warned me of what +we could expect,” Roth acknowledged wryly, “but we never realized how +bitter the attacks on us and our families would be. But none of us are +sorry that we became involved in the case. We all feel that we have had +a small part in clarifying and strengthening a vital constitutional +safeguard.[4] For this, we were more than willing to endure whatever +came our way.” + +[4] More clarification is in the offing. On October 8, 1962, the +Supreme Court agreed to pass on the constitutionality of another type +of school prayer. It will shortly hear argument on the validity of +a regulation of the Baltimore (Md.) School Board and a Pennsylvania +statute, both of which require the reading of verses from the Bible at +the opening of each school day. + + + + +Bibliography + +In addition to available trial transcripts, records on appeal, and +magazine and newspaper articles, the following books were consulted: + + A Generation on Trial, by Alistair Cooke. New York: Alfred A. Knopf, + 1950 + + After Twelve Years, by Michael A. Musmanno. New York: Alfred A. Knopf, + 1939 + + Attorney for the Damned. Edited by Arthur Weinberg. New York: Simon & + Schuster, 1957 + + Clarence Darrow for the Defense, by Irving Stone. Garden City, New + York: Doubleday & Company, Inc., 1941 + + Commonwealth vs. Sacco and Vanzetti, by Robert Perry Weeks. Englewood + Cliffs, New Jersey: Prentice-Hall, Inc., 1958 + + Courtroom, by Quentin Reynolds. New York: Farrar, Straus & Company, + 1950 + + Crime, Its Cause and Treatment, by Clarence S. Darrow. New York: + Thomas Y. Crowell, 1922 + + Fair Trial, by Richard B. Morris. New York: Alfred A. Knopf, 1952 + + In the Court of Public Opinion, by Alger Hiss. New York: Alfred A. + Knopf, 1957 + + Letters of Sacco and Vanzetti. Edited by Marion Denman Frankfurter and + Gardner Jackson. New York: The Vanguard Press, 1950 + + McCarthy and His Enemies, by William F. Buckley, Jr. and L. Brent + Bozell. Chicago: H. Regnery Company, 1954 + + McCarthyism, The Fight for America, by Joseph R. McCarthy. New York: + Devin-Adair Company, 1952 + + Myths After Lincoln, by Lloyd Lewis. New York: Harcourt Brace & + Company, 1929 + + Ordeal by Slander, by Owen Lattimore. Boston: Little, Brown & Company, + 1950 + + Origin of Species, by Charles R. Darwin. Philadelphia: University of + Pennsylvania Press, 1958 + + Reverdy Johnson, by Bernard Christian Steiner. Baltimore: Norman, + Remington Company, 1914 + + Sacco-Vanzetti--The Murder & The Myth, by Robert H. Montgomery. + Devin-Adair Company, 1960 New York + + Scottsboro Boy, by Haywood Patterson. New York: Doubleday & Company, + Inc., 1950 + + Seeds of Treason, by Ralph de Toledano and Victor Lasky. New York: + Funk & Wagnalls Co., Inc., 1950 + + Senator Joe McCarthy, by Richard H. Rovere. New York: Harcourt, Brace + & Company, 1959 + + Six Days or Forever, by Ray Ginger. Boston: Beacon Press, 1958 + + Spies, Dupes and Diplomats, by Ralph de Toledano. New York: Duell, + Sloan & Pearce, 1952 + + The Assassination of President Lincoln and the Trial of the + Conspirators. The courtroom testimony as originally compiled by Benn + Pitman. New York: Funk & Wagnalls Co., Inc., 1954 + + The Case for Courage, by William M. Kunstler. New York: William Morrow + & Co., Inc., 1962 + + The Case for Mrs. Surratt, by Helen Jones Campbell. New York: G. P. + Putnam’s Sons, 1943 + + The Case of Sacco and Vanzetti, by Felix Frankfurter. Boston: Little, + Brown & Company, 1927 + + The Case of Thomas J. Mooney and Warren K. Billings, by Henry T. Hunt. + New York: National Mooney-Billings Committee, 1929 + + The Judgment of Julius and Ethel Rosenberg, by John Wexley. New York: + Cameron & Kahn, 1955 + + The Judicial Murder of Mary E. Surratt, by David Miller De Witt. + Baltimore: J. Murphy Company, 1895 + + The Lamont Case. Edited by Philip Wittenberg. New York: Horizon Press, + 1953 + + The Legacy of Holmes and Brandeis, by Samuel J. Konefsky. New York: + The Macmillan Company, 1956 + + The Legacy of Sacco and Vanzetti, by G. Louis Joughin and Edmund M. + Morgan. New York: Harcourt, Brace & Company, 1948 + + The Life & Death of Sacco and Vanzetti, by Eugene Lyons. New York: + International Publishers, 1927 + + The Rosenberg Case: Fact and Fiction, by Solomon Andhil Fineberg. New + York: Oceana Publications, Inc., 1953 + + The Sacco-Vanzetti Case, by Osmond K. Fraenkel. New York: Alfred A. + Knopf, 1931 + + The Scottsboro Case. New York: The Scottsboro Defense Committee, 1936 + + The Story of my Life, by Clarence Darrow. New York: Charles Scribner’s + Sons, 1932 + + The Strange Case of Alger Hiss, by Earl Jowitt. Garden City, New York: + Doubleday & Company, Inc., 1953 + + The Untried Case, by Herbert E. Ehrmann. New York: The Vanguard Press, + 1933 + + The World’s Most Famous Court Trial. Cincinnati: National Book + Company, 1925 + + They Shall be Free, by Allen Knight Chalmers. Garden City, New York: + Doubleday & Company, Inc., 1951 + + Thirteen Days, by Jeanette Augustus Marks. New York: A. C. Boni, 1929 + + Treason, by Nathaniel Weyl. Washington, D. C.: Public Affairs Press, + 1950 + + Trial by Prejudice, by Arthur Garfield Hays. New York: Covici Friede, + 1933 + + Trial by Television, by Michael W. Straight. Boston: Beacon Press, 1954 + + Was Justice Done?, by Malcolm P. Sharp. New York: Monthly Review + Press, 1956 + + What Happened in the Mooney Case, by Ernest J. Hopkins. New York: + Brewer, Warren & Putnam, 1932 + + Witness, by Whittaker Chambers. New York: Random House, 1952 + + + + +Index + +(First case references only) + + + A + + Abel, Louis, 192 + + Abt, John, 138 + + Adams, Lee, 125 + + Adams, Samuel, 206 + + Affe, Carlos M., 94 + + Aiken, Frederick, 6 + + Allen, James E., Jr., 226 + + Alnwick, Florence, 215 + + _America_, 228 + + American Civil Liberties Union, 103 + + American Ethical Union, 221 + + American Jewish Committee, 220 + + Anderson, Walter, 159 + + Andrews, Bert, 153 + + Andrews, George, 224 + + Andrews, Lola R., 66 + + Andrower, Guiseppe, 94 + + Anti-Defamation League, 221 + + Appell, Donald T., 153 + + Arnold, Benedict, 166 + + Arnold, Samuel, 4 + + Arrogani, Harry, 85 + + Atomic Energy Act, 193 + + Atzerodt, George A., 4 + + + B + + Backer, Frank J., 226 + + Bailey, H. G., 122 + + Baldwin, Roger, 103 + + Barnes, Joseph K., 3 + + Barrett, Tracy F., 45 + + Bates, Ruby, 120 + + Bautista, Dora, 190 + + Beamish, Richard, 110 + + Beauregard, P. G. Toutant, 15 + + Behrsin, Hans, 70 + + Beldock, George J., 220 + + Benson, J. S., 130 + + Bentley, Elizabeth, 139, 190 + + Benton, William, 196 + + Berardelli, Alessandro, 68 + + Berle, Adolph A., Jr., 138 + + Bernhardt, George, 186 + + Billings, Warren K., 88 + + Binger, Carl, 162 + + Bingham, John A., 12 + + Birch, Anne, 216 + + Black, Hugo L., 222 + + Bloch, Alexander, 174 + + Bloch, Emanuel, 174 + + Boda, Mike, 74 + + Bohr, Neils, 178 + + Bonjionanni, Adeladi, 76 + + Booth, John Wilkes, 2 + + Bosco, Albert, 93 + + Bostock, James E., 68 + + Brady, Matthew, 64 + + Brennan, James M., 45 + + Brennan, William J. Jr., 222 + + Brenner, William, 82 + + Bridges, R. R., 124 + + Brini, Alphonsine, 91 + + Brini, Beltrando, 76 + + Brini, LeFavre, 92 + + Broadway, Jim, 125 + + Brodsky, Joseph R., 128 + + Brooks, Georgina, F., 76 + + Brophy, John P., 20 + + Bruno, William A., 226 + + Bryan, William Jennings, 103 + + Bryan, William Jennings, Jr., 107 + + Buckley, David, 73 + + Budenz, Louis, 198 + + Bunner, Stephen, 37 + + Burke, Frank J., 71 + + Burns, Francis, 2 + + Burns, James E., 86 + + Burns, William J., 33 + + Burrs, L. J., 128 + + Butler, John Washington, 102 + + Butler, William J., 213 + + Bykov, Colonel, 153 + + + C + + Caldwell, Hamlin, 129 + + Callahan, William Washington, 134 + + Calvert, George H., Jr., 10 + + Campbell, Alexander, 153 + + Campbell, Julia, 66 + + Cantlin, John, 20 + + Caplan, Esther, 59 + + Carasso, Leon, 59 + + Carland, Louis, 20 + + Carr, Frank, 198 + + Carrigan, Mark, 68 + + Carter, Edward, 79 + + Carter, Lester, 121 + + Cartwright, L. M., 105 + + Cashin, N. E., 130 + + Catlett, Burnetta, 162 + + Catlett, Claudie, 160 + + Catlett, Perry, 160 + + Catlett, Raymond, 160 + + Chambers, David Whittaker, 137 + + Chambers, Esther, 157 + + Chamlee, George W., 127 + + Chamlee, George W., Jr., 127 + + Chandler, Porter R., 217 + + Chavez, Dennis, 205 + + Cherner Motor Company, 150 + + _Civic Biology_, 108 + + Clampitt, John W., 6 + + Clark, William, 3 + + Clarvoe, John, 3 + + Cockran, W. Bourke, 45 + + Cohn, Roy M., 196 + + Colburn, Frederick H., 38 + + Cole, Austin C., 79 + + Collins, Henry, 144 + + Collins, Timothy J., 79 + + Compton, Janice, 55 + + Conger, Everton, 2 + + Conley, Jim, 26 + + Connolly, Michael J., 89 + + Conrad, Joseph, 193 + + Constantino, Dominic, 82 + + Corbett, Boston, 2 + + Cottingham, George, 13 + + Cox, Evelyn, 192 + + Crane, Arthur H., 54 + + Cresafulli, Mario, 57 + + Cresafulli, Mrs. Mario, 57 + + Crosley, George, 143 + + Cross, Claude B., 166 + + Crowley, John M., 44 + + Crump, William B., 45 + + Cunha, Edward A., 45 + + Cutler, Rebecca, 57 + + + D + + Dahl, Fannie, 55 + + Daiker, Bertram B., 216 + + Daly, William H., 96 + + Danziger, William, 187 + + Darrow, Clarence S., 104 + + Darrow, Ruby, 111 + + Davis, Jefferson, 7 + + Davis, John W., 106, 159 + + De Beradinis, Louis, 72 + + De Caccia, Alphonse, 45 + + De Lorenzo, Julia, 57 + + De Los Rios, Manuel Giner, 188 + + Dempsey, John W., 15 + + Dennis, Glenn, 190 + + Dentamore, Antonio, 93 + + Desmond, Charles S., 220 + + Devlin, Frances J., 84 + + Di Carli, John, 76 + + Dies, Martin, 205 + + Dobbins, T. L., 125 + + Doidge, Thomas U., 55 + + Dolan, John A., 52 + + Dolbeare, Harry E., 66 + + Dollard, Charles, 145 + + Donaldson, Peter, 105 + + Donegan, Thomas J., 154 + + Dorsey, Hugh M., 29 + + Doster, William E., 15 + + Douglas, William O., 192, 223 + + Dulles, John Foster, 163 + + Dunne, Frank H., 44 + + Dye, Marvin R., 221 + + + E + + Eastland, James O., 225 + + Edeau, Nellie, 44 + + Edeau, Sadie, 44 + + Edelman, Irvin, 193 + + Eisenhower, Dwight David, 193, 196 + + Eisler, Gerhard, 164 + + Elitcher, Max, 174 + + Ellis, Claude O., 61 + + Engel, Michael, 214 + + Engel, Steven I., 214 + + Eris, Louis, 55 + + Espinosa, Minerva Bravo, 189 + + Espionage Act, 193 + + + F + + Fahy, Charles, 159 + + Falzini, Luigi, 94 + + Faulkner, John M., 67 + + Fay, George W., 81 + + Feehan, Ramos S., 159 + + Ferguson, Lawrence D., 71 + + Fickert, Charles M., 38 + + Field, Frederick, 204 + + Fields, Noel, 167 + + Fiochi, Margaretta, 76 + + Fitzgerald, J. Henry, 86 + + Fitzpatrick, Honora, 15 + + Flanders, Ralph E., 204 + + Foley, Roger, 221 + + Folliard, Edward T., 152 + + Fosdick, Harry Emerson, 132 + + Fraher, Thomas F., 87 + + Frank, Leo M., 24 + + Frankfurter, Felix, 99, 159, 222 + + Frantello, Albert, 68 + + Fried, Philip, J., 216 + + Fuchs, Klaus Emil Julius, 170 + + Fuld, Stanley H., 221 + + Fuller, Alvan T., 100 + + Fuller, Edgar, 225 + + + G + + Gallivan, Jeremiah F., 74 + + Geller, Stanley, 216 + + Gerard, George A., 77 + + Gilley, Orville, 121 + + Gilley, Sam, 126 + + Goddard, Henry W., 166 + + Gold, Harry, 171 + + Golos, 190 + + Goodridge, Carlos E., 72 + + Gould, Roy E., 71 + + Gouzenko, Igor, 170 + + Graham, Billy, 108, 224 + + Graham, J. M., 76 + + Grant, Robert, 100 + + Grant, Ulysses S., 1 + + Graves, Bibb, 135 + + Greeley, Dana McLean, 225 + + Green, Sam, 57 + + Greenberg, Hyman J., 228 (fn) + + Greenglass, David, 172 + + Greenglass, Ruth, 172 + + Griffin, Franklin A., 45 + + Guadagni, Felici, 93 + + Guerin, Daniel T., 87 + + Guidobone, Angel T., 92 + + Guild of Catholic Lawyers, 217 + + Gullender, Elsie, 147 + + Gunn, Neier & Daiker, 216 + + Gwynn, B. F., 17 + + + H + + Hamilton, Albert H., 97 + + Hammersburg, Belle, 58 + + Hancock, John, 206 + + Hancock, W. S., 22 + + Hand, Draper H., 53 + + Harlan, John Marshall, 221 + + Harris, Clara, 2 + + Harris, H. F., 33 + + Harris, T. M., 6 + + Harte, Mary, 215 + + Hartranft, General, 6 + + Hatcher, Earl, 62 + + Hatcher, Mrs. Earl, 62 + + Hathaway, Clarence, 199 + + Hawk, Harry, 2 + + Hawkins, Alf E., 122 + + Hays, Arthur Garfield, 27, 107, 214 + + Hébert, F. Edward, 139 + + Henry, Henri P., 161 + + Hepburn, Richard, 159 + + Herold, David E., 4 + + Heron, William J., 67 + + Hiss, Alger, 138, 195 + + Hiss, Donald, 140 + + Hiss, Priscilla, 139 + + Hobson, Timmy, 140 + + Hollfender, Charles F., 55 + + Holmes, Oliver Wendell, 35, 100, 165 + + Holahan, Eliza, 18 + + Holohan, John T., 19 + + Holt, Joseph, 5 + + Hon, Will George M., 40 + + Hoover, Herbert, 225 + + Hopkins, Daisy, 29 + + Horton, James E., 129 + + Howell, Dewie, 32 + + Hoxton, John, 18 + + Hoxton, William, 18 + + Huggins, James S., 190 + + Hughes, Charles Evans, 134 + + Hughes, Peter T., 43 + + Hunter, David, 6 + + Hunter, George William, 108 + + Hunting, Nathaniel S., 85 + + Hutchison, William K., 110 + + + I + + Iacovelli, Henry, 94 + + Inslerman, Felix, 155 + + International Defense League, 127 + + Iscariot, Judas, 165 + + + J + + Jackson, Irene, 33 + + Javits, Jacob K., 225 + + Jenkins, Zad, 17 + + Jesse, Frank, 91 + + Johnson, Andrew, 4 + + Johnson, Reverdy, 6 + + Johnson, Simon, 74 + + Johnson, Mrs. Simon, 75 + + Johnston, Joseph E., 1 + + Jones, John Paul, 213 + + + K + + Katzmann, Frederick A., 76 + + Kaufman, Irving R., 174 + + Kaufman, Samuel H., 154 + + Keeler, Leonardo, 145 + + Keene, Laura, 1 + + Kelleher, Julie, 73 + + Kelley, George T., 87 + + Kelly, Dean M., 225 + + Kelly, Thomas V., 192 + + Kennedy, John F., 220 + + Kidwell, Alice, 42 + + Kirsch, Benjamin, 57 + + Kistiakowski, George B., 178 + + Kluttz, Jerry, 153 + + Knapp, Hetta, 40 + + Kneese, Henry, 40 + + Knight, Thomas, Jr., 129 + + Kohlberg, Alfred, 163 + + Kuchel, Thomas H., 206 + + Kuntz, Edward, 174 + + Kurlansky, Harry, 81 + + Kytka, Theodore, 56 + + + L + + LaBreque, Alfred N., 80 + + Lamont, Corliss, 196 + + Lamont, Thomas W., 201 + + Langlois, Edgar C., 71 + + Langer, William, 204 + + La Posee, Charlotte, 60 + + Latham, T. N., 125 + + Lattimore, Owen D., 195 + + Laulor, John, 45 + + Lawlor, John C., 57 + + Lee, Newt, 25 + + Lee, Robert E., 1 + + Leger, Camille, 57 + + Lehman, Herbert H., 204 + + Leibowitz, Samuel S., 129 + + Lerner, Cynthia, 215 + + Lerner, Monroe, 215 + + Levangie, Michael, 72 + + Levine, Nathan, 152 + + Levitov, Edith, 188 + + Lichtenstein, Daniel, 215 + + Like, Irving, 197 + + Lincoln, Abraham, 1 + + Lincoln, Eunice, 159 + + Lincoln, Mary Todd, 1 + + Liscomb, Barbara, 70 + + Lloyd, John M., 10 + + Lockey, Ira, 160 + + Loring, Fred L., 74 + + Lowell, Abbott Lawrence, 100 + + Lumbard, J. Edward, 207 + + Lusby, James, 17 + + Lynch, M. H., 124 + + Lyons, Lenore, 215 + + + M + + MacNevin, William V., 46 + + Magazu, Peter, 85 + + Magrath, George B., 85 + + Malaquci, Terese, 76 + + Malone, Dudley Field, 107 + + Manganio, Andrew, 85 + + Manhattan District Project, 171 + + Marbury, William, 153 + + Marlow, Vernon, 162 + + Massing, Hede, 164 + + Masterson, Maud, 55 + + Matheson, Duncan, 37 + + May, Allan Nunn, 170 + + McAnarney, Jeremiah J., 77 + + McAnarney, Thomas F., 77 + + McCarthy, Bridget, 209 + + McCarthy, Henry, 79 + + McCarthy, Joseph Raymond, 193 + + McCarthy, Timothy, 209 + + McClellan, George, 15 + + McClendon, Ennis, 131 + + McCullum, Peter, 82 + + McDonald, John, 42 + + McDougall, Jimmy, 52 + + McDowell, John R., 139 + + McGuiness, James E., 228 + + McGlone, James E., 70 + + McGohey, John F. X., 153 + + McIntyre, James Francis Cardinal, 224 + + McLean, Edward C., 154 + + McMarrin, Sterling M., 225 + + McNutt, Maxwell, 46 + + Medeiros, Celestino, F., 98 + + _Meet the Press_, 152 + + Mencken, H. L., 107 + + Metcalf, Maynard, M., 112 + + Meyer, Bernard S., 217 + + Migram, H. C., 53 + + Miller, B. M., 122 + + Mitchell, Sam, 125 + + Monello, Angelo, 93 + + Monroe, Dora, E., 63 + + Montgomery, Olen, 122 + + Moody, Jefferson E., 129 + + Moody, Milo, 123 + + Mooney, Rena, 39 + + Mooney, Thomas V., 38 + + Moore, Earl R., 40 + + Moore, Frederick H., 77 + + Morgan, Howard, 111 + + Morgan, J. P., 196 + + Morgan, Luke, 111 + + Morgan, R. C., 15 + + _Morning, Noon and Night_, 15 + + Morris, Luther, 125 + + Morse, Wayne, 206 + + Mosely, Travis, 130 + + Moss, Annie Lee, 209 + + Moss, Maximillian, 213 + + Moss, Mora, J., 55 + + Mudd, Samuel A., 4 + + Mundt, Karl, 138 + + Murphy, Francis J., 74 + + Murphy, James L., 62 + + Murphy, Thomas F., 154 + + Murray, Edith, 168 + + + N + + National Council of Churches, 225 + + Neal, John Randolph, 106 + + Neal, Shelley A., 65 + + New York Civil Liberties Union, 211 + + Nixon, Richard M., 139, 207 + + Norris, Clarence, 122 + + Nothey, John, 8 + + Nott, Joe, 17 + + Novelli, Jennie, 90 + + Nye Committee, 147 + + + O + + Offutt, Emma, 13 + + O’Laughlin, Michael, 4 + + _On Board_, 211 + + O’Neil, Daniel J., 71 + + Oppenheim, E. Phillips, 182 + + Oppenheimer, J. Robert, 178 + + Orciani, Ricardo, 74 + + Otis, James, 206 + + Oxman, Frank C., 49 + + + P + + Pagano, Helen, 192 + + Parker, John F., 2 + + Parmenter, Frederick A., 66 + + Pasternak, Max, 188 + + Patterson, Haywood, 122 + + Patterson, William, 129 + + Payne, Lewis, 4 + + Peay, Austin, 103 + + Peck, Gregory, 216 + + Peck, Lester, 211 + + Pelser, Lewis, 70 + + Peress, Irving, 197 + + Peters, J., 140 + + Peterson, Walter, J., 61 + + Peterson, William, 3 + + Phagan, Mary, 25 + + Phillips, Harold M., 174 + + Pickett, J. E., 130 + + Pierce, Winifred H., 71 + + Pike, James A., 224 + + Pincus, Henry, 45 + + Pirk, Mary, 34 + + Pitman, Benn, 6 + + Pollak, Walter H., 128 + + Potter, Charles Francis, 109 + + Powell, Ozie, 122 + + Presley, Henry, 131 + + Pressman, Lee, 138 + + Price, Victoria, 120 + + Proctor, William H., 85 + + Proll, William R., 54 + + _Psychological and Cultural Traits of Soviet Siberia_, 198 + + + Q + + Quinn, Lemmie, 30 + + _Quinn v. United States_, 207 + + + R + + Rabinavicius, Henrikas, 167 + + Rankin, John, 139 + + Ransford, P. T., 19 + + Rappelyea, George W., 103 + + Rath, Christian, 22 + + Rathbone, Henry Reed, 2 + + Raulston, John T., 104 + + Raushenbush, Stephen, 147 + + Reed, Austin T., 73 + + Reed, Stanley, 159 + + Reeves, Instrument Corporation, 175 + + Regents’ Prayer, 210 + + Reisman, E. E., 132 + + Ricci, Dominick, 94 + + Rigall, F. E., 59 + + Riley, Jim, 108 + + Ripley, Walter R., 77 + + Roan, L. S., 27 + + Robbins, Orry, 125 + + Roberson, Willie, 122 + + Roberts, Hilbert, 58 + + Robinson, Mrs. Bill (Bonjangles), 136 + + Robinson, F. E., 103 + + Rockefeller, Nelson, 224 + + Roddy, Stephen W., 122 + + Rogers, Will, 115 + + Rogge, O. John, 174 + + Rominger, Louis, 41 + + Rosen, Joseph, 92 + + Rosen, William, 151 + + Rosenberg, Ethel, 173 + + Rosenberg, Julius, 173 + + Rosenblatt, Harry, 57 + + Roth, Daniel, 211 + + Roth, Joseph, 211 + + Roth, Lawrence, 211 + + Roulhac, George Norman, 167 + + Rousseau, Tom Taylor, 125 + + Rovere, Richard H., 209 + + Rundquist, George, 211 + + Russell, Louis J., 147 + + Ryan, John, 19 + + + S + + Sacco, Nicola, 74 + + Salsedo, Andrea, 91 + + Saltonstall, Leverett, 205 + + Sand, Marvin, 188 + + Sanders, Walter, 120 + + Saunders, Richard, 215 + + Sayre, Francis, 159 + + Saypol, Irving H., 172 + + Scavitto, Joseph, 80 + + Schapiro, Meyer, 157 + + Schine, G. David, 196 + + Schneider, Ben, 192 + + Schwellenbach, Lewis B., 146 + + Scopes, John Thomas, 103 + + Scott, Harry, 27 + + Scott, John, 74 + + Scottsboro Defense Committee, 134 + + Semus, Rachel, 18 + + Seward, William H., 3 + + Shaw, Maynard Freeman, 76 + + Shelton, Harry, 111 + + Sidorovich, Ann, 179 + + Simmons, Ernest J., 198 + + Slaton, John H., 36 + + Smith, Alonzo, 63 + + Smith, David J., 59 + + Smith, Estelle, 41 + + Smith, Frank, 19 + + Smith, H. W., 4 + + Smith, Kirby, 1 + + Smith, W. Marvin, 150 + + Smith, William H., 61 + + Sobell, Helen, 189 + + Sobell, Morton, 173 + + Solt, Morton, 190 + + Spangler, Edward, 4 + + Spear, Merle A., 89 + + Spellman, Francis Cardinal, 224 + + Splaine, Mary E., 70 + + Stafford, David E., 40 + + Stanton, Edwin M., 3 + + Starnes, Joe, 123 + + Stateler, T. K., 54 + + Stephens, Alexander H., 15 + + Stephens, William D., 62 + + Stevens, Robert T., 203 + + Stewart, A. T., 108 + + Stewart, Michael E., 74 + + Stewart, Potter, 222 + + Stokes, Will, 127 + + _Stop Me If You Have Heard This_, 173 + + Stover, Monteen, 30 + + Stratton, Samuel W., 100 + + Stripling, Robert, 137 + + Stryker, Lloyd Paul, 154 + + Surratt, Anna, 18 + + Surratt, John H., 3 + + Surratt, Mary Eugenia, 3 + + Sutter, Simon L., 58 + + Swanson, Martin, 38 + + Sweeney, Richard, 17 + + Sykes, Frank, 130 + + Synagogue Council, 221 + + + T + + Talmadge, Herman E., 225 + + Taylor, Mark, 130 + + Taylor, Roy A., 225 + + Thayer, Webster, 75 + + _The Peoples of the Soviet Union_, 196 + + Thomas, J. Parnell, 142 + + Thompson, Jack R., 110 + + Thompson, William G., 77 + + Tidwell, Arthur J., 130 + + Tiller, Jack, 121 + + Timberlake, Martha, 58 + + Touloukian, Edward H., 157 + + Tracy, William S., 67 + + Treanor, Nicholas Hugh, 57 + + Turner, W. E., 32 + + Tydings, Millard, 195 + + + U + + Union Street Benevolent Society, 218 + + Unitarian Universalist Association, 225 + + _United States v. Emspak_, 205 + + _U.S.S.R.--a Concise Handbook_, 198 + + + V + + Vahey, J. P., 76 + + Van Amburgh, Charles, 85 + + Vanzetti, Bartolomeo, 74 + + Vaughan, Earl J., 89 + + Vendrell, Jose Broccado, 189 + + Victorson, Alexander G., 79 + + Vidovich, Peter, 44 + + Vinson, Fred, 193 + + Vitale, William J., Jr., 216 + + + W + + Wade, Herbert C., 41 + + Wade, Lewis L., 69 + + Wadleigh, Henry Julian, 159 + + Wann, C. A., 129 + + Wann, M. L., 122 + + Ward, Anna, 18 + + Ward, Louis H., 64 + + Ware, Harold, 139 + + Warren, Earl, 207, 221 + + Washington, George, 166 + + Watkins, Arthur V., 204 + + Watson, Tom, 34 + + Weems, Charlie, 122 + + Weichmann, Louis J., 3 + + Weinberg, Israel, 39 + + Weinfeld, Edward, 207 + + Welch, Joseph N., 203 + + Welch, Robert, 226 + + Wermerskirch, W. M., 15 + + Westmoreland, W. F., 33 + + Wheeler, William, 153 + + White, Byron R., 223 (fr) + + White, Walter, 105 + + Whitman, Walt, 23 + + Wiget, E. F., 18 + + Wilde, Oscar, 34 + + Williams, Eugene, 122 + + Williams, G. Mennen, 136 + + Williams, Harold P., 77 + + Williams, John Bell, 225 + + Williams, John D., 93 + + Williams, Paul W., 208 + + Wilson, Woodrow, 62 + + Witt, Nathan, 138 + + Wittenberg, Philip, 197 + + Wohlford, Robert, 147 + + Womack, L. B., 130 + + Woodall, Arthur W., 126 + + Wright, Andy, 122 + + Wright, Roy, 122 + + Wright, S. S., 108 + + Wright, Wade, 129 + + Wylie, Andrew, 22 + + + Y + + Yakovlev, Anatoli A., 171 + + Young, James P., 19 + + + Z + + Zabotin, Nicholai, 170 + + Zwicker, Ralph W., 197 + + + + + Transcriber's Notes: + + Italics are shown thus: _sloping_. + + Variations in spelling and hyphenation are retained. + + Perceived typographical errors have been changed. + +*** END OF THE PROJECT GUTENBERG EBOOK 78229 *** diff --git a/78229-h/78229-h.htm b/78229-h/78229-h.htm new file mode 100644 index 0000000..f441f91 --- /dev/null +++ b/78229-h/78229-h.htm @@ -0,0 +1,12202 @@ +<!DOCTYPE html> +<html lang="en"> +<head> + <meta charset="UTF-8"> + <title> + ... and Justice For All | Project Gutenberg + </title> + <link rel="icon" href="images/cover.jpg" type="image/x-cover"> + <style> + +body { + margin-left: 15%; + margin-right: 15%; +} + + h1,h2 { + text-align: center; /* all headings centered */ + clear: both; +} + +h1 {font-weight: normal; + font-size: 250%; + margin-top: 2em; + margin-bottom: 2em; + } + +h2 {font-weight: normal; + font-size: 180%; + margin-top: 2em; + word-spacing: 0.3em; + } + +p { + margin-top: .51em; + text-align: justify; + margin-bottom: .49em; +} + +.p2 {margin-top: 2em;} +.p4 {margin-top: 4em;} + +hr { + width: 33%; + margin-top: 2em; + margin-bottom: 2em; + margin-left: 33.5%; + margin-right: 33.5%; + clear: both; +} + +hr.full {width: 95%; margin-left: 2.5%; margin-right: 2.5%;} + +div.chapter {page-break-before: always;} +h2.nobreak {page-break-before: avoid;} + +ul.index { list-style-type: none; } +li.ifrst { + margin-top: 1em; + text-indent: -2em; + padding-left: 1em; +} +li.indx { + margin-top: .5em; + text-indent: -2em; + padding-left: 1em; +} + + +table { + margin-left: auto; + margin-right: auto; +} + +.tdl {text-align: left;} +.tdr {text-align: right;} +.tdrt {text-align: right; vertical-align: top;} + +.pagenum { /* uncomment the next line for invisible page numbers */ + /* visibility: hidden; */ + position: absolute; + left: 92%; + font-size: small; + text-align: right; + font-style: normal; + font-weight: normal; + font-variant: normal; + text-indent: 0; +} /* page numbers */ + + +.blockquot { + margin-left: 5%; + margin-right: 10%; +} + +.blockquot2 { + margin-left: 5%; + margin-right: 10%; + font-size: 90%; +} + +.up {font-size: 180%;} +.xlarge {font-size: 140%;} +.large {font-size: 120%;} +.less {font-size: 90%;} + +.c {text-align: center;} + +.sp {word-spacing: 0.3em;} + +.pad {padding-left: 19em;} + +.pad2 {padding-left: 10em;} + +.r {text-align: right;} + +.smcap {font-variant: small-caps;} + +.allsmcap {font-variant: small-caps; text-transform: lowercase;} + +.u {text-decoration: underline;} + +/* Images */ + +img { + max-width: 100%; + height: auto; +} +img.w100 {width: 100%;} + + +.figcenter { + margin: auto; + text-align: center; + page-break-inside: avoid; + max-width: 100%; +} + + + +/* Footnotes */ + +.footnote {margin-left: 10%; margin-right: 10%; font-size: 0.9em;} + +.footnote .label {position: absolute; right: 79%; text-align: right;} + +.fnanchor { + vertical-align: super; + font-size: .8em; + text-decoration: + none; +} + + +/* Transcriber's notes */ +.transnote {background-color: #E6E6FA; + color: black; + font-size:small; + padding:0.5em; + margin-bottom:5em; + margin-top:3em; + font-family:sans-serif, serif; + border: .3em double gray; + padding: 1em; +} + + </style> +</head> +<body> +<div style='text-align:center'>*** START OF THE PROJECT GUTENBERG EBOOK 78229 ***</div> + +<div class="figcenter"> +<img src="images/cover.jpg" alt="cover"> +</div> + +<h1> +...AND JUSTICE FOR ALL</h1> + +<p class="c less">BY</p> + +<p class="c up">WILLIAM M. KUNSTLER</p> + +<p class="c large p4">1963</p> +<p class="c large"><span class="smcap">Oceana Publications, Inc.</span></p> +<p class="c large"><span class="smcap">Dobbs Ferry, N. Y.</span> +</p> +<hr class="full"> + + +<div class="chapter"> +<p class="c"> +© Copyright, 1963, by William M. Kunstler</p> + +<p class="c">All Rights Reserved</p> + +<p class="c p4"> +Library of Congress Catalog Card Number 62-11115</p> + +<p class="c sp"> +Manufactured in the United States of America +</p> +</div> + + +<hr class="full"> + +<div class="chapter"> +<p class="c large">To</p> +</div> + +<p class="c">Michael J. Kunstler</p> + +<hr class="full"> + +<div class="chapter"> +<p><span class="pagenum" id="Page_vii">[Pg vii]</span></p> +<h2 class="nobreak" id="c1">Introduction</h2> +</div> + + +<p>Years ago, when I tried to enlist the services of the great defender +of the underdog, Clarence Darrow, against a free speech +prosecution of some midwestern radicals, he refused, not because +of lack of sympathy but, as he said, because it was hopeless. +“You can’t get anybody off in these radical cases,” he said. +“Whenever I get a case with anything radical in it I cut it out. +I’m not taking any more of them. I am just defending murderers +and other respectable criminals; sometimes I can get them off.”</p> + +<p>What Darrow observed then is the theme of lawyer Kunstler’s +selection of cases where justice might have yielded to community +passion and prejudice. The cases are not exceptional: they are +symptomatic. In the First World War, passion against dissenters +rose so high that, in surveying the wreckage of the hundreds of +federal prosecutions for anti-war utterances, the then Chief +Justice of the United State Supreme Court, Charles Evans +Hughes, was moved to wonder whether “American democracy +could survive another great war, however victoriously waged.”</p> + +<p>Half of the ten dramatic court cases skillfully analyzed by +lawyer Kunstler for laymen are still for me vivid experiences in +the struggles of the American Civil Liberties Union for fair trials +against fear and prejudice. All but two of them occurred during +the period of my active association with the Union from 1920 on. +In some the Union was only indirectly involved; in others it +directly took part, and in one, the trial of Scopes for teaching +the theory of evolution, the Union initiated the prosecution and +handled the defense.</p> + +<p>This experience confirms the thesis underlying Mr. Kunstler’s +selection of a few of the hundreds of cases he could have cited to +show how difficult it is for juries and judges to rise above community +fears to deal justly and fairly with unpopular or hated +defendants. In most of the cases, “who you were, not what you +did,” was on trial, what you represented as a threat to majority<span class="pagenum" id="Page_viii">[Pg viii]</span> +prejudice or dominant powers, not what you represented as a +force of protest or progress with a claim on equal justice.</p> + +<p>It is an old story forever new, and the lesson of history needs +constant repetition for us in the United States in terms of our +time. It was just such community hostility that condemned +Socrates before the jury of Athenian citizens, and forced Pontius +Pilate to turn over Jesus of Nazareth to the jury of priests. The +witches of Salem were hung in a fury of community condemnation, +with the blessing of clergy and officials. In our times, Mr. +Kunstler could have brought to witness the hundreds of cases +against members of the Industrial Workers of the World before +and after World War I, condemned even before they were tried +as destroyers of property and enemies of government. Or coming +up to date, he could have cited dozens of prosecutions of Communists +in which conviction was a foregone conclusion, whatever +the charge.</p> + +<p>His selection omits these cases in favor of more dramatic and +better-known trials illustrating a larger variety of intolerances, +racial, religious and political. Only four of the ten involve +political radicals,—three of them the casualties of cold war fears +for national security. All the defendants are long since dead or +freed, with the sole exception of Morton Sobell, convicted with +the executed Rosenbergs, now serving a savage thirty-year sentence. +The stories are therefore history in the dark chapter of +dubious trials, with no call to present action.</p> + +<p>What lessons can be learned from the record? Mr. Kunstler +offers a few in his preface. I would add one or two of my own.</p> + +<p>The emphasis on due process of law as the basic guarantee of +our liberties, so often voiced by courts and lawyers, and reasonably +true in ordinary trials, is secondary where prejudice prevails. +And prejudice is not confined to the fears of war-time, hot or +cold, or to the racial conflicts dramatized by a case nationally or +internationally famous, as most of these in this book were, but +it exists in our courts every day all over the country. What Negro +can be assured that he will get equal justice with a white man +for the same offense? What Mexican-American in the Southwest? +What Puerto Rican in our eastern cities? Is justice as equal in +any court for the non-conformist and unpopular as for the +regulars?</p> + +<p><span class="pagenum" id="Page_ix">[Pg ix]</span></p> + +<p>If our juries and judges are to approach the goal of even-handed +justice, we need the restraints, as Mr. Kunstler suggests, +of fewer trials by newspapers, more searching screening of juries, +more resolute and independent judges, and public defenders, +competent to counteract prejudice, for indigent defendants. I +would not tamper with the jury system, imperfect as it is in +rising above community prejudice; but skilled defense lawyers +always know, when there is a choice, whether a judge or a jury +is likely to assure a fairer trial.</p> + +<p>Not all the cases Mr. Kunstler presents came out badly. Some +had salutary effects, even striking. The impact of the Tennessee +evolution case was so profound that, although anti-evolution +laws were not repealed, they were nullified in practice. The +resistance to the McCarthy inquisition, set forth in the Lamont +case, combined with the Senator’s own excess of zeal, destroyed +him as a political demagogue though the prejudice and fears +he aroused continue, greatly diminished, under cold war pressures. +The recent school prayer decision will doubtless do much +to clarify the delicate relationship between church and state.</p> + +<p>The short-range good won from the evils of most of these +trials may be matched by their long-range effects if the lesson +Mr. Kunstler impresses on us is learned in the administration +of justice. But it is a hard task to guard against the prejudices +and fears of an aroused community, as all history shows, and +yet one which must be achieved if our professions of justice are +to be vindicated.</p> + +<p class="pad"> +<span class="smcap large">Roger N. Baldwin</span><br> +<i>Founder of the American Civil<br> +Liberties Union</i> +</p> +<p> +New York, N. Y.<br> +October 9, 1962 +</p> +<hr class="full"> + +<div class="chapter"> +<p><span class="pagenum" id="Page_xi">[Pg xi]</span></p> + +<h2 class="nobreak" id="c2">Preface</h2> +</div> + + +<p>In 1953, Professor Edmund M. Morgan, of Vanderbilt University’s +School of Law, in his introduction to a reprint of Felix +Frankfurter’s <i>The Case of Sacco and Vanzetti</i>, wrote: “In times +when the opinion of the community is shot through and through +with deep-seated prejudices concerning race, social class, economic +theories or political ideologies, a case in which either the issues +or the parties involved touch these prejudices, arouses passions +which becloud judgment and make impossible a fair consideration +of the evidence.” Like Professor Morgan, I have always felt +that “the fixed preconceptions of the community” can, in too +many instances, contribute more to the outcome of criminal +trials than the quantity or quality of the evidence. It was with +this uncomfortable thought in mind that this book was conceived +and written.</p> + +<p>I do not claim that all the cases which appear in this collection +bear out the truth of Morgan’s observation. But they do +illustrate some of the difficulties that confront a defendant who +is being tried in an environment that is, to say the least, hostile +to him or his cause. This does not mean, of course, that his +chance of a fair trial are hopeless. But it goes without saying +that he must struggle against greater odds than those faced by +others accused of crime who are more acceptable to the community.</p> + +<p>Leo Frank, for example, was an outsider and a Jew charged +with a particularly heinous crime. As the judge who presided at +his trial so aptly put it, “If Christ and his angels came down +here and showed this jury Frank was innocent, it would bring +him in guilty.” The Scottsboro boys were southern Negroes +accused of raping two white women. The fact that the complaining +witnesses were tramps, the defendants young boys, and +the evidence far from convincing, did not deter three successive +juries from imposing the death penalty. Sacco and Vanzetti were +immigrant Italians whose anarchistic views had made them anathema +to a society which sought its salvation in Attorney General +Mitchell Palmer and his pre-dawn raids. Mary Surratt, Alger<span class="pagenum" id="Page_xii">[Pg xii]</span> +Hiss, the Rosenbergs and Corliss Lamont were, in one way or +another, enemies of the state, Tom Mooney an obstreperous +labor agitator in an era of anti-unionism, John Thomas Scopes +a threat to the Bible, and the five petitioners in the recent +Herricks school prayer case against God.</p> + +<p>In all but three of these cases (Mary Surratt was tried by a +military commission, Corliss Lamont’s fate decided by a solitary +judge and the school prayer petitioners were limited to a single-judge +court) the defendants faced juries which were prepared +to believe the worst of them before their trials began. Mrs. +Surratt was judged by nine army officers wholly subservient to a +vindictive, autocratic Secretary of War, and Dr. Lamont, although +he was spared a jury trial by the dismissal of the indictment +against him, would undoubtedy have been confronted by +a panel not overly favorable to an acknowledged leftist who had +defied a congressional investigating committee. But, whatever +the mode of trial, or type of tribunal involved, the fundamental +fact remains that all the pariahs had to run the gamut of a +hostile climate of opinion which militated strongly against their +chances of success.</p> + +<p>The dilemma of the unpopular defendant (or plaintiff) has +caused grave concern to those interested in the just administration +of the law. Many solutions have been suggested. Some have +urged that, as in Great Britain, the news media be forbidden to +report any but the most rudimentary details of pending civil or +criminal cases. Others have proposed that more frequent changes +of venue be granted by the courts. Still others have questioned +the validity of the jury system itself. It is my hope that the cases +in this volume will illustrate the gravity of the situation and provoke +some fruitful discussion of the problem. As Prof. Morgan +points out, “the administration of justice, particularly in times of +crisis, is one of the most important functions of government.” It +deserves the immediate attention of us all.</p> + +<p class="pad"> +<span class="smcap large">William M. Kunstler</span><br> +</p> + +<p> +New York, N. Y.<br> +September 15, 1962 +</p> + +<p><span class="pagenum" id="Page_xiii">[Pg xiii]</span></p> + + +<hr class="full"> + +<p class="c p2">“I PLEDGE ALLEGIANCE TO THE FLAG OF<br> +THE UNITED STATES OF AMERICA AND TO<br> +THE REPUBLIC FOR WHICH IT STANDS, ONE<br> +NATION UNDER GOD, INDIVISIBLE WITH<br> +LIBERTY AND JUSTICE FOR ALL.”</p> + +<p class="r">PLEDGE OF ALLEGIANCE TO THE FLAG</p> + +<hr class="full"> + +<div class="chapter"> +<p><span class="pagenum" id="Page_xv">[Pg xv]</span></p> + +<p class="c sp up">Table of Contents</p> +</div> + +<table class="large"> + +<tr> + <td class="tdr"></td> + <td class="tdl"><span class="smcap">Introduction</span></td> + <td class="tdr"><a href="#c1"><span class="allsmcap">VII</span></a></td></tr> + +<tr> + <td class="tdr"></td> + <td class="tdl"><span class="smcap">Preface</span></td> + <td class="tdr"><a href="#c2"><span class="allsmcap">XI</span></a></td></tr> + +<tr> + <td class="tdrt"><a href="#c3">1.</a></td> + <td class="tdl"><i>She Helped to Kill a President</i><br> +<span class="smcap">United States v. Surratt</span></td> + <td class="tdrt">1</td></tr> + +<tr> + <td class="tdrt"><a href="#c4">2.</a></td> + <td class="tdl"><i>Atlanta’s Northern Jew</i><br> +<span class="smcap">Georgia v. Frank</span></td> + <td class="tdrt">24</td></tr> + +<tr> + <td class="tdrt"><a href="#c5">3.</a></td> + <td class="tdl"><i>In Union There is Death</i><br> +<span class="smcap">California v. Mooney</span></td> + <td class="tdrt">37</td></tr> + +<tr> + <td class="tdrt"><a href="#c6">4.</a></td> + <td class="tdl"><i>Anarchists With Bloody Hands</i><br> +<span class="smcap">Massachusetts v. Sacco and Vanzetti</span></td> + <td class="tdrt">65</td></tr> + +<tr> + <td class="tdrt"><a href="#c7">5.</a></td> + <td class="tdl"><i>He Defied the Bible</i><br> +<span class="smcap">Tennessee v. Scopes</span></td> + <td class="tdrt">102</td></tr> + +<tr> + <td class="tdrt"><a href="#c8">6.</a></td> + <td class="tdl"><i>Their Skin was Black</i><br> +<span class="smcap">Alabama v. Patterson</span></td> + <td class="tdrt">120</td></tr> + +<tr> + <td class="tdrt"><a href="#c9">7.</a></td> + <td class="tdl"><i>A Traitor from Harvard</i><br> +<span class="smcap">United States v. Hiss</span></td> + <td class="tdrt">137</td></tr> + +<tr> + <td class="tdrt"><a href="#c10">8.</a></td> + <td class="tdl"><i>They Gave the Bomb to Russia</i><br> +<span class="smcap">United States v. Rosenberg</span></td> + <td class="tdrt">170</td></tr> + +<tr> + <td class="tdrt"><a href="#c11">9.</a></td> + <td class="tdl"><i>Contempt by Silence</i><br> +<span class="smcap">United States v. Lamont</span></td> + <td class="tdrt">194</td></tr> + +<tr> + <td class="tdrt"><a href="#c12">10.</a></td> + <td class="tdl"><i>Five Against God</i><br> +<span class="smcap">Engel v. Vitale</span></td> + <td class="tdrt">210</td></tr> + +<tr> + <td class="tdrt"></td> + <td class="tdl"><span class="smcap">Bibliography</span></td> + <td class="tdrt"><a href="#c13">230</a></td></tr> + +<tr> + <td class="tdrt"></td> + <td class="tdl"><span class="smcap">Index</span></td> + <td class="tdrt"><a href="#c14">232</a></td></tr> + + +</table> + +<hr class="full"> + +<div class="chapter"> +<p><span class="pagenum" id="Page_1">[Pg 1]</span></p> + +<h2 class="nobreak" id="c3">1</h2> +</div> + +<p class="u large"><i>She Helped to Kill a President</i></p> + +<p class="c xlarge">The United States</p> + +<p class="c xlarge"><i>versus</i></p> + +<p class="c xlarge">Mary Eugenia Jenkins Surratt</p> + + +<p>A few minutes after eight o’clock on the morning of Palm Sunday, +April 9, 1865, Robert E. Lee sat down at a field table and +wrote a note to General Grant, requesting an interview “with +reference to the surrender of this army.” That afternoon, at the +McLean farmhouse on the edge of Appomattox village, the fifty-eight-year-old +Lee turned over the Army of Northern Virginia to +its embarrassed conqueror. The brief surrender document was +written out in pencil by Grant at a table in the McLean living +room and corrected by Lee who, resplendent in dress uniform +sat across the room from the somewhat disheveled Union commander. +At 3:45 p.m., the Confederate general signed his acceptance +of Grant’s rather generous terms and went out to explain +to his incredulous troops what he had done.</p> + +<p>Even though Joe Johnston and Kirby Smith were still at large +in the deep South, the Civil War was all but over. Two days +after Appomattox, Grant and his wife arrived in Washington +where the general was promptly lionized by a city gone wild after +more than four nerve-wracking years of being a front line capital. +In honor of the couple, Mrs. Lincoln had done her part by inviting +them to a theatre party at Ford’s Opera House on the +evening of Good Friday, April 14th. <i>Our American Cousin</i>, a +new comedy with the incomparable Laura Keene, had been playing +to enthusiastic audiences throughout the North and, +although the President wasn’t particularly overjoyed at the prospect<span class="pagenum" id="Page_2">[Pg 2]</span> +of sitting through a late-evening play, he knew better than +to obstruct Mary’s plans. However, at the last moment the Grants +begged off, primarily because the general had little stomach for +what he termed “show business.”</p> + +<p>At nine o’clock on Good Friday evening, coachman Francis +Burns stopped the White House carriage in front of Ford’s between +E and F on Tenth Street. Outside of the Lincolns, his +only other passengers were Major Henry Reed Rathbone and +Clara Harris, an engaged couple who were filling in for the +Grants. When the quartet entered the Presidential box, Major +Rathbone and Miss Harris took the two seats nearest the stage +with their hosts sitting behind them. Lincoln sprawled in a +haircloth rocking chair directly in front of a door that opened +on a narrow hallway. Sometime during the afternoon, a small +hole had been bored in the door, through which it was possible +to observe the box’s occupants from the corridor.</p> + +<p>Shortly after the Lincoln party had entered the box, John F. +Parker, a perennially thirsty patrolman who had been assigned +by the Metropolitan Police to guard the President, decided to +leave his post in the hallway and look for a nearby bar. At 10:15, +just as, on stage, Harry Hawk was referring to Mrs. Mountchessington +as “you sockdologizing old mantrap,” actor John +Wilkes Booth opened the now unguarded door and put a bullet +into the head of the dozing man in the rocker. The rest was for +the chroniclers—the leap to the stage, the broken shinbone, the +mad dash across the Navy Yard Bridge, the frenzied manhunt +through the woods and swamps of Northern Virginia, and the +end of the trail in a burning barn on Garrett’s farm just south of +Port Royal.</p> + +<p>The self-styled avenger, who believed that “God ... made me +the instrument of his punishment,” was destined to die just before +sunrise on April 26th on the front porch of a Virginia tobacco +farm. The cause of death—a bullet wound in the neck. +Whether Booth shot himself, as Colonel Everton Conger, the +leader of the cavalry patrol which had run him to earth, believed, +or was killed by fanatical Sergeant Boston Corbett who +claimed that God had been looking over his shoulder when he +squeezed the trigger, didn’t change the essential fact that the +assassin was as dead as he was ever going to be. The troopers<span class="pagenum" id="Page_3">[Pg 3]</span> +who searched his body found a small diary and the daguerrotypes +of five women in his pockets.</p> + +<p>Seconds after Booth’s one-shot derringer had earned him a +sizeable place in the history books, a wild-eyed young man on +a bay horse pulled up in front of Secretary of State William H. +Seward’s mansion on Lafayette Square. Pretending to be a messenger +sent by Seward’s physician, he broke into the Secretary’s +bedroom where he stabbed him three times. Only a steel frame +which the victim had been wearing to support a fractured jaw +saved him from death. The intruder then fought his way out of +the house, seriously wounding four other people in the process, +and rode off toward the east.</p> + +<p>Meanwhile, four Pennsylvania artillerymen carried the President’s +unconscious form across Tenth Street to William Peterson’s +house. There he was placed on a walnut cot in the first +floor bedroom of William Clark, one of Peterson’s boarders. He +lingered during the night, but it was soon obvious to the six +physicians in the room, who could do little more than remove +the pressure-causing blood clots that continuously formed at the +entrance to the wound, that their illustrious patient would never +see another day. By dawn, his breath had become stertorous +and labored and, at 7:22 a.m., Surgeon-General Joseph K. +Barnes, recorded the last heartbeat. “Now,” Secretary of War +Edwin M. Stanton was supposed to have said, as he closed the +dead man’s eyes, “he belongs to the ages.”</p> + +<p>Some four hours earlier, a Metropolitan Police squad, headed +by a detective named Clarvoe, had arrived at a small boardinghouse +at 541 H Street, which was owned by one Mary Eugenia +Surratt, a widow who had come to Washington from Surrattville, +Maryland, in the Spring of ’64. They were looking for Mrs. +Surratt’s son, John, who, Clarvoe told her, had just murdered +Secretary Seward. When Mrs. Surratt informed them that John +had left for Canada when Richmond fell on April 3rd, the +squad searched the eight-room brick building from cellar to +attic. After ordering Louis J. Weichmann, one of Mrs. Surratt’s +borders, to report to headquarters the next morning, the policemen +left the house.</p> + +<p>As soon as Lincoln died, Stanton, to whom one cause was +as good as another so long as he remained <i>primus motor</i>, announced<span class="pagenum" id="Page_4">[Pg 4]</span> +that he would not rest until he had found and prosecuted +everybody who had anything to do with what his reward +circulars referred to as “the stain of innocent blood.” Booth and +David E. Herold, a slow-witted youth whose only redeeming +feature was his devotion to the actor, had been identified as soon +as they fled across the Navy Yard Bridge, minutes after the +murder. Herold had been captured by Colonel Conger’s cavalry +patrol just before it set fire to the barn in which the two men +were hiding.</p> + +<p>By that time, Stanton had rounded up seven other persons +whom he accused of conspiring to kill the President. There was +Lewis Payne, a Confederate deserter and the son of a Florida +minister, who had created the havoc at the Seward house. +Payne and George A. Atzerodt, a carriage-maker from Port Tobacco, +had both boarded at Mrs. Surratt’s prior to the assassination. +Atzerodt, who, with Herold’s help, was supposed to kill +Vice-President Andrew Johnson at the Kirkwood House, had +lost his nerve and spent the night of April 14th wandering +aimlessly around the streets of Washington. He was finally captured +on April 20th at his cousin’s farm in nearby Germantown. +Payne was picked up when he showed up at the H Street boardinghouse +at midnight on April 17th, with his head wrapped in a +bloody shirtsleeve, just as Major H. W. Smith was in the process +of arresting Mrs. Surratt.</p> + +<p>Edward Spangler, the cantankerous stage carpenter at Ford’s +had held Booth’s horse while the actor was about his murderous +business in the President’s box. Samuel Arnold and Michael +O’Laughlin, both of whom had known Booth since childhood, +had been persuaded by him to help out in an abortive 1864 +scheme to abduct Lincoln and hold him a hostage until the +North came to terms with the Confederacy. After almost a year +of fruitless discussions with Booth about ways and means, both +men had withdrawn from the project. On the night of the +President’s murder, O’Laughlin had been on a drinking bout in +Washington with three friends while Arnold was working for a +sutler at Fortress Monroe near Baltimore. Lastly, there was Dr. +Samuel A. Mudd, the Maryland physician who had set the murderer’s +broken leg the morning after the shooting.</p> + +<p>By the end of April, Stanton had everybody he wanted. Herold<span class="pagenum" id="Page_5">[Pg 5]</span> +was brought back to Washington on the same steamboat as his +master’s blanket-wrapped corpse, and incarcerated with the other +prisoners in the brigs of some gunboats moored near the Navy +Yard. All that remained was the selection of a court. The Secretary +of War was determined not to let his prizes enjoy the benefits +of a civil trial and urged the new President to appoint a +military commission to try them. Johnson agreed and, on May +1st, named a commission composed of seven generals and two +colonels “for the trial of David E. Herold, George A. Atzerodt, +Lewis Payne, Michael O’Laughlin, Edward Spangler, Samuel +Arnold, Mary E. Surratt, Samuel A. Mudd ... implicated in the +murder of the late President, Abraham Lincoln, and the attempted +assassination of William H. Seward, Secretary of State, +and in an alleged conspiracy to assassinate other officers of the +Federal Government at Washington City.” The main charge—“maliciously, +unlawfully, and traitorously murdering the said +Abraham Lincoln, then President of the United States and +Commander-in-Chief of the Army and Navy of the United +States.”</p> + +<p>As far as Mrs. Surratt was concerned, Brigadier-General +Joseph Holt, the Judge Advocate General, didn’t mince words. +She did, he said, “receive, entertain, harbor and conceal, aid +and assist, the said John Wilkes Booth, David E. Herold, Lewis +Payne, John H. Surratt, Michael O’Laughlin, George A. +Atzerodt, Samuel Arnold and their confederates, with the knowledge +of the murderous and traitorous conspiracy ... with intent +to aid, abet and assist them in the execution thereof, and +in escaping from justice after the murder of the said Abraham +Lincoln, as aforesaid.” On March 10th, Mrs. Surratt and the +seven other defendants pleaded, “Not Guilty.”</p> + +<p>Their trial, which began officially at ten a.m. on May 10th, +was held in a large room on the third floor of the Old Penitentiary. +Several days earlier, the defendants had been transferred +from their nautical prisons to cells in the same building +where they were kept in solitary confinement. Even their +guards were forbidden by Stanton to utter a word to them. +Shortly after their arrival at the Penitentiary, the male prisoners’ +heads were encased in heavy canvas sacks which were slit in the +vicinity of their mouths. Payne’s attempted suicide by butting<span class="pagenum" id="Page_6">[Pg 6]</span> +his head against his cell’s stone wall had alerted the Secretary of +War to the possibility that some of his birds might succeed in +beating their brains out before he could properly hang them. +When General Hartranft, the Special Provost Marshal assigned +to the commission, suggested the hoods, Stanton was quick to +order them.</p> + +<p>The trial had been scheduled to get underway on Tuesday, +May 9th, but since the defendants all asked for time in which +to find lawyers, General David Hunter, the President of the Commission, +postponed it twenty-four hours. The next morning, +Mrs. Surratt applied for permission, as Benn Pitman, the +chief court stenographer recorded it, “to introduce Frederick +Aiken, Esq. and John W. Clampitt, Esq., as her counsel, which +applications were granted.” Dr. Mudd was the only other defendant +to have drummed up a lawyer, and Hunter adjourned +the Commission to the next day “to allow further time for the +accused to secure the attendance of counsel.”</p> + +<p>Aiken and Clampitt were two young attorneys who volunteered +their services in Mary Eugenia’s behalf. Neither had had +much experience in criminal trials and they were only too happy +to welcome the assistance of Reverdy Johnson, the United States +Senator from Maryland, who felt that the least he could do for +an old constituent was to help her defend her life. On Saturday, +his co-counsels introduced him to the Commission, only to find +that one member—Brigadier-General T. M. Harris—objected +to Johnson because he had publicly questioned the legality of +the loyalty oath of 1862. When the Senator informed the Commission +that he had merely expressed his opinion that the Maryland +Constitutional Convention of 1864 did not have the authority +to make the taking of such an oath a condition of voting +on the new charter, Harris withdrew his objection.</p> + +<p>As the prisoners filed into the courtroom, Pitman and his +fellow reporters noticed that all except Mrs. Surratt and Dr. +Mudd wore ten-inch manacle bars which prevented them +from bringing their hands together. Mudd sported ordinary +handcuffs while the feet of all the male defendants were shackled +together with chains. With Atzerodt and the half-mad Payne, +Stanton had taken the additional precaution of welding heavy<span class="pagenum" id="Page_7">[Pg 7]</span> +weights to their steel anklets which made it impossible for them +to walk without help from their guards.</p> + +<p>The courtroom itself was a dimly lit room with only four +small windows to illuminate its more than twelve hundred +square feet. The prisoners’ dock consisted of a railed-off raised +platform at the far end of the room. The defendants were separated +from each other by blue-clad guards who sat between +them. Mrs. Surratt’s seat was the last chair on the right side +of the platform, just a few feet away from the door through +which prisoners were brought from their cells every morning +at precisely nine o’clock. There were two small field tables +directly in front of the makeshift dock around which the seven +defense attorneys sat. In the middle of the chamber were two +long conference tables, one of which was occupied by the members +of the Commission, with the other reserved for the official reporters. +The witness stand was located in dead center between +two of the three pillars that supported the room’s eleven-foot +ceiling. The walls had been freshly white-washed and cocoa-nut +matting had been spread over the stone floor.</p> + +<p>As soon as all the defendants were represented by counsel, they +were given permission to withdraw their “Not Guilty” pleas and +attack the Commission’s jurisdiction. Each prisoner took the +position that, since they were all civilians and there were appropriate +Washington civil courts available to try them, the Military +Commission did not have any power over them. The Judge Advocate +answered this by claiming unequivocally that “this Commission +has jurisdiction in the premises.” Hunter, who was very +much Stanton’s man, went through the formality of clearing the +courtroom, and then announced that the prisoners’ pleas were +over-ruled. After a motion for separate trials had suffered the +same fate, all of the defendants then reaffirmed their innocence.</p> + +<p>As it put in its case against the eight defendants, the prosecution +digressed for hours attempting to prove that Jefferson Davis +and the other Confederate leaders had been responsible for Lincoln’s +murder. In fact, Holt and his aides were determined to +show that the assassination plot had been connected with Southern +guerilla warfare in New York and Vermont as well as with +the maltreatment of Union captives at Andersonville and other +rebel prisons. Although, the evidence hardly supported their<span class="pagenum" id="Page_8">[Pg 8]</span> +grandiose thesis, they succeeded in creating an illusion that the +prisoners in the dock were part of a gigantic plot in which the +President’s death was only one of many factors.</p> + +<p>Late on the afternoon of May 13th, the Provost Marshal escorted +Lou Weichmann to the tri-railed witness stand. Weichmann +stated that he had first met John Surratt in the Fall of +1859 at St. Charles College in Maryland. Because of this friendship, +he had moved to the H Street boarding house on November +1, 1864. He remembered that his landlady had requested +him to visit John Wilkes Booth at the National Hotel twelve days +before the President’s murder “and say that she wished to see him +on ‘private business’.” Later that same evening, Booth had come +to the house and closeted himself with Mrs. Surratt for more +than an hour.</p> + +<p>On April 11th, Mrs. Surratt had asked her boarder to see +whether the actor would lend her his buggy for a trip to Surrattsville, +which was some ten miles southeast of the capital. +Booth informed Weichmann that he had just sold his vehicle, +but gave him ten dollars “that I might hire one.” Weichmann +had rented a surrey at Howard’s Stables and then driven Mrs. +Surratt to Surrattsville “for the purpose of seeing Mr. Nothey, +who owed her some money.” The couple had returned to Washington +late that afternoon.</p> + +<p>After lunch on Good Friday, Mrs. Surratt had again asked +Weichmann to drive her into the country because, she told him, +she had received a letter “in regard to that money Mr. Nothey +owed her.” She had given him a ten-dollar bill with which to +hire another rig. “We took with us only two packages; one was +a package of papers about her property at Surrattsville; and another +package done up in paper, about six inches, I should think +in diameter. It looked to me like perhaps two or three saucers +wrapped up. This package was deposited in the bottom of the +buggy and taken out by Mrs. Surratt when we arrived at Surrattsville.” +As soon as they reached Lloyd’s tavern at 4:30, Lou +had headed for the taproom while his passenger went into the +parlor. When he called for her at six o’clock, he had noticed +that Booth was with her and that the two were in deep conversation.</p> + +<p>Before John Surratt left Washington early in April, Booth had<span class="pagenum" id="Page_9">[Pg 9]</span> +been a frequent visitor at 541 H Street. Whenever he called, +he had always asked for young Surratt or his mother. “Sometimes,” +Weichmann recalled, “when engaged in general conversations, +Booth would say, ‘John, can you go upstairs and spare me +a word?’ They would then go upstairs and engage in private +conversation which would sometime last two or three hours. +The same thing would sometimes occur with Mrs. Surratt.”</p> + +<p>The witness had first seen Lewis Payne at the boardinghouse +early in March. The defendant, who had been introduced to +Weichmann as Wood, had arrived with no luggage and remained +overnight. The next morning, Payne had taken the early train +to Baltimore. He had returned three weeks later, this time dressed +as a Baptist preacher, and said that he had just finished a seven-day +term in a Baltimore prison but that the experience had +taught him a lesson. “He had taken the oath of allegiance, and +was now going to become a good and loyal citizen.”</p> + +<p>From the first time he saw Payne, he was convinced that the +latter was up to no good. One day, he had found a black false +mustache “of medium size” on the table in his room. “When +I found it, I thought it rather queer that a Baptist preacher +should use a mustache. I took it and locked it up because I +did not care to have a false mustache lying round on my table.” +Later, he used to entertain his fellow clerks in the office of the +Commissary-General of Prisoners with “a pair of spectacles and +the mustache.”</p> + +<p>One evening, he had returned to the house to find Payne and +Johnny Surratt “playing with bowie knives” in his room. He +also saw two Navy revolvers and four sets of new spurs on the +bed. Just after the assassination, the Metropolitan Police had +found one of these spurs in Atzerodt’s room at the Kirkwood +House. Weichmann had seen Atzerodt, whom the ladies at Mrs. +Surratt’s called Port Tobacco, “at the house, ten or fifteen times.” +Like Booth, the carriage-maker had always asked for John Surratt +or his mother.</p> + +<p>Although Weichmann had never seen Arnold or McLaughlin +before, he had met Dr. Mudd walking with Booth on Seventh +Street on January 15, 1865. The actor had invited him to join +them for a glass of wine in his room at the National. There, +Booth and Mudd had had a private conversation in the hallway,<span class="pagenum" id="Page_10">[Pg 10]</span> +a discussion which Weichmann was told had to do with the contemplated +purchase of the physician’s farm by Booth. “Dr. Mudd +apologized to me for his private conversation and stated ... that +Booth wished to purchase his farm, but that he did not care +about selling it, as Booth was not willing to give him enough.” +It was after this meeting, that Booth had begun to show up frequently +at the boardinghouse.</p> + +<p>Herold had been at H Street once. But Weichmann had also +seen him at Surrattsville in the summer of 1863. The only other +time that he had met him was in March of ’65 when Booth, +who was playing the part of Pescara in <i>The Apostate</i>, had given +Surratt and himself two complimentary tickets. On the way to the +theatre, the two young men had met Atzerodt and Herold, who +were also going to the play. After the final curtain, the witness +“found Atzerodt and Herold in the restaurant adjoining the +theatre, talking very confidentially to Booth.” When the Judge +Advocate asked him to identify Herold, Weichmann pointed to +the defendant. Benn Pitman, using his brother’s new shorthand +system, noted that Herold “smiled and nodded in recognition.”</p> + +<p>Senator Johnson took over the brunt of the cross-examination. +Weichmann admitted that Mrs. Surratt, whom he had met +through her son, was a “member of the Catholic Church and a +regular attendant upon its services.” In fact, he had usually accompanied +her to church on Sunday mornings. Yes, he was on +friendly terms with her son, John, who had never intimated to +him that there was a plot afoot to kill the President. The only +thing young Surratt had told him about Booth was that he +hoped to go on the stage with him in Richmond after the war.</p> + +<p>No, there was nothing suspicious about Mrs. Surratt’s April +11th visit to Surrattsville. A John Nothey had owed her $479.00 +for more than thirteen years and she had decided to see him +personally about it. She had met Nothey early that afternoon +in the parlor of a tavern she had leased to a retired Washington +policeman by the name of John M. Lloyd, for fifty dollars a +month, just before she moved to the H Street house in the +Spring of ’64. Her second visit, three days later, had been motivated +by a letter she had received from George H. Calvert, Jr., +“urging the settlement of the claim of my late father’s estate.” +When her husband died in 1862, he had still owed Calvert<span class="pagenum" id="Page_11">[Pg 11]</span> +Senior part of the purchase price of the Maryland property.</p> + +<p>When Johnson sat down, young Clampitt took over. He wanted +to know whether Weichmann had heard Booth or Mudd discuss +anything subversive when he saw them at the National Hotel in +January. The witness had not. As for the ten dollars which Booth +had given him to hire a buggy for Mrs. Surratt, “I thought at +the time that it was nothing more than an act of friendship. I +said to Booth, ‘I am come with an order for that buggy that +Mrs. Surratt asked you for last evening.’ He said, ‘I have sold +my buggy, but here are ten dollars, and you go and hire one.’” +No, he had never told Mary Eugenia about that. A few minutes +later, he told Aiken that he had written a letter for his landlady +to Mr. Nothey, threatening him with a law suit if he did +not pay what he owed her at once. He remembered that he had +helped her to calculate the interest on “the sum of $479 for +thirteen years.”</p> + +<p>When Weichmann stepped down late in the afternoon, Hunter +adjourned for the day. Since the next day—May 14th—was a +Sunday, the commission did not reconvene until the fifteenth. +The first witness called on Monday was Mrs. Surratt’s tenant, +John M. Lloyd. He recalled that Herold, Atzerodt and John +Surratt had come to his house some five or six weeks before the +assassination. They had brought with them “two carbines with +ammunition ... a rope from sixteen to twenty feet in length, and +a monkey wrench.” Surratt had asked him to hide these articles +and even showed him a secret hiding place “underneath the +joists of the second floor of the main buildings.” On April 11th, +he had met Mrs. Surratt on the road at Uniontown. “When she +first broached the subject to me about the articles at my place, I +did not know what she had reference to. Then she came out +plainer, and asked me about the ‘shooting irons.’... Her language +was indistinct, as if she wanted to draw my attention to +something, so no one else would understand. Finally, she came +out bolder with it, and said that they would be wanted soon.”</p> + +<p>Three days later, when he returned from watching a trial in +Marlboro, he had found Mrs. Surratt in his backyard. “She met +me by the wood-pile as I drove in with some fish and oysters in +my buggy. She told me to have those shooting irons ready that +night, there would be some parties who would call for them.<span class="pagenum" id="Page_12">[Pg 12]</span> +She gave me something wrapped in a piece of paper which I +took upstairs, and found to be a fieldglass. She told me to get two +bottles of whiskey ready, and that these things were to be called +for that night.”</p> + +<p>At midnight, Herold had woken him up and said, “Lloyd for +God’s sake, make haste and get those things.” The tavern owner +had immediately gone to the place where he had hidden the +carbines and given them to Herold. For some reason, he did not +turn over the rope and the monkey wrench. Herold had taken +the bottle of whiskey which Lloyd gave him and offered it to +a man who was sitting on a light-colored horse in front of the +tavern. In the bright moonlight, the tavern keeper had watched +this man, who “was a stranger to me,” put the bottle to his lips +and drink deeply. The two men had stayed for only five minutes +before riding off in the direction of Tee Bee, a hamlet a few +miles to the south. Just as they were about to leave, the man +who was with Herold had said, “I will tell you some news, if you +want to hear it. I am pretty certain that we have assassinated the +President and Secretary Seward.” As they rode off, only Herold +took a carbine with him. The other man “said he could not +take his because his leg was broken.”</p> + +<p>Whether it was the unseasonably hot weather or a monumental +case of stage fright, Lloyd had wilted fast as the long +morning wore on. By the time the prosecution let him go, he was +on the verge of collapse. As Colonel John A. Bingham, Holt’s +chief assistant, put him through his paces, the ex-policeman’s +back country drawl frequently became so low that even the members +of the Commission who were sitting directly in front of +him had difficulty in hearing him. Both Aiken and Clampitt +were constantly imploring Hunter to instruct the whispering +witness to raise his voice, requests that the presiding officer consistently +ignored.</p> + +<p>On cross-examination, Aiken couldn’t shake Lloyd’s story. +But he did get him to admit that there might have been a witness +present at the April 14th conversation with Mrs. Surratt +about the “shooting irons.”</p> + +<div class="blockquot"> + +<p>Q. Are you positive again that Mrs. Surratt told you at that +time that the shooting irons would be called for that +night?</p> +<p><span class="pagenum" id="Page_13">[Pg 13]</span></p> +<p>A. I am very positive.</p> + +<p>Q. Was there any other persons present during the interview?</p> + +<p>A. Mrs. Offutt, my sister-in-law, was, I believe, in the yard; +but whether she heard the conversation or not I do not +know.</p> +</div> + +<p>But he couldn’t remember whether or not he had told “these +circumstances” to Mrs. Offutt.</p> + +<p>As for the package which Mrs. Surratt had brought to the +tavern with her on Tuesday, the 11th, he had taken it upstairs +at once.</p> + +<div class="blockquot"> + +<p>Q. Did you undo it immediately when you got upstairs?</p> + +<p>A. As soon as I got upstairs, I saw what it was.</p> + +<p>Q. Did you lay the package down and leave it anywhere before +you went upstairs?</p> + +<p>A. No, sir.</p> +</div> + +<p>He was sure that he had told Mrs. Offutt, shortly after Mrs. +Surratt had started back to Washington, “that it was a fieldglass +she had brought.”</p> + +<p>He had gone to bed early on Good Friday because “I was +right smart in liquor that afternoon and after night I got more +so.” He had been sleeping soundly when Booth and Herold +arrived. As soon as they had ridden off, Lloyd went back to bed. +When he awoke the next morning, his yard was being picked +over by Union soldiers who had traced Booth and Herold there. +He was asked whether he “had seen two men pass that way in +the morning.” He had replied that he had not. “That is the +only thing I blame myself,” he remorsefully told the Commission. +“If I had given the information they asked of me, I should have +been perfectly easy regarding it. That is the only thing I am +sorry I did not do.” In fact, it was not until the middle of the +next week that he had decided to tell Captain George Cottingham, +who had locked him in Roby’s Post Office in Surrattsville +for safekeeping, that Booth and Herold had been at the tavern +at midnight on April 14th.</p> + +<p>As Lloyd rushed out of the hearing room, obviously destined +for the first bar he could find, Holt recalled Weichmann. Outside +of some elaboration of his previous testimony about the +strange goings-on at chez Surratt, he contributed nothing further +to the case against Mary Eugenia. He conceded that he had not<span class="pagenum" id="Page_14">[Pg 14]</span> +heard the conversation between his landlady and Lloyd at +Uniontown. It seemed that “Mrs. Surratt leaned sideways in the +buggy and whispered, as it were, in Mr. Lloyd’s ear.” When +Aiken asked him why he hadn’t told somebody about the suspicious +circumstances at the house on H Street, he insisted that +“my suspicions were not of a fixed or definite character.” Besides, +when he had tried to tell Captain Gleason of the War +Department about some peculiar remarks he had heard Booth +utter about kidnapping the President, the officer had “laughed +and hooted at the idea.”</p> + +<p>After Lloyd was brought back to explain that he now wasn’t +sure where he had taken the package which Mrs. Surratt had +brought to the tavern on Friday, April 14th, Emma Offutt took +the stand. She had been in the carriage with Lloyd when they +had met Mrs. Surratt near Uniontown three days before the +assassination. No, she hadn’t heard a word of the conversation +because her brother-in-law had gotten out of the buggy to talk +to Mrs. Surratt and “I was some distance off.” As far as Good +Friday was concerned, she hadn’t heard anything that was said +between Lloyd and Mary Eugenia in the tavern’s backyard. Mrs. +Offutt had spoken to Mrs. Surratt shortly after the latter’s +arrival that afternoon but she “gave me no charge in reference +to her business, only concerning her farm, and she gave +me no packages.”</p> + +<p>Major H. W. Smith had been in charge of the troops who +had arrested Mrs. Surratt on the night of April 17th. “While +we were there, Payne came to the house. I questioned him in +regard to his occupation, and what business he had at the house +that time of night. He stated that he was a laborer, and had +come there to dig a gutter at the request of Mrs. Surratt.” +Major Smith had asked Mrs. Surratt, who was sitting in the +parlor, whether she had hired Payne. She had stepped out into +the vestibule and, from a distance of three feet, taken a long +look at the man. “Before God, sir,” she had told Smith, “I do +not know this man, and have never seen him, and I did not +hire him to dig a gutter for me.”</p> + +<p>When Holt showed the witness a brown and white coat, he +promptly identified it as the coat that Payne had been wearing +that April night. Ten minutes later, when William E.<span class="pagenum" id="Page_15">[Pg 15]</span> +Doster, Payne’s attorney, asked him whether he was sure that +the brown and white coat had been worn by the defendant, he +repeated that “I am certain that this is the coat.” Seconds after +the words had left his mouth, Major Smith was busy eating +them. Doster shoved a drab-gray coat under his nose and asked +him whether he didn’t want to change his mind. He did. “The +coat now shown me is the one worn by Payne on the night of +his arrest,” he conceded. It was very difficult, he explained, in +the poor light of Mrs. Surratt’s vestibule to tell one coat from +another. But now he was certain that “the coat just shown me +is the one.”</p> + +<p>Both Smith and R. C. Morgan, who had been sent to H Street +to superintend “the seizing of papers”, had found photographs +of such Confederate leaders as Beauregard, Jefferson Davis and +Alexander H. Stephens. Lieutenant John W. Dempsey, the officer +in charge of the search party, had turned up a rotogravure of +John Wilkes Booth hidden behind a small framed lithograph +entitled <i>Morning, Noon and Night</i> which hung in Mrs. Surratt’s +first floor bedroom. But Captain W. M. Wermerskirch, +Smith’s executive officer, swore that he had also seen a photograph +of Union General George McClellan in the parlor.</p> + +<p>Weichmann had testified that the H Street boardinghouse +had been a beehive of activity during March and early April +of ’65. On May 22nd, Holt called Honora Fitzpatrick, one of +Mrs. Surratt’s more attractive boarders. Miss Fitzpatrick was a +very definite young lady. “During the month of March last,” +she said, “I saw John Wilkes Booth and John H. Surratt there.” +Payne and Atzerodt had also dropped in but only once or +twice. Early in March, Payne and Surratt had taken her to a +performance at Ford’s Theatre. “I do not know what box we +occupied, but I think it was an upper box. John Wilkes Booth +came into the box while we were there.”</p> + +<p>On May 23rd, the Judge Advocate called it a day and Messrs. +Johnson, Aiken and Clampitt began their labors on behalf +of Mrs. Surratt. Their first witness was George Cottingham, +the special officer who had arrested John Lloyd on April 15th. +For two solid days, he had urged his prisoner to tell what he knew +about Booth and Herold. Finally, Lloyd had broken down and +sobbed, “O, my God, if I was to make a confession, they would<span class="pagenum" id="Page_16">[Pg 16]</span> +murder me.” When Cottingham had asked him who had designs +on his life, he was informed that it was “these parties +that are in this conspiracy.”</p> + +<p>Then the dam had burst. The conscience-stricken Lloyd had +told Cottingham everything. “He stated to me that Mrs. Surratt +had come down to his place on Friday between 4 and 5 o’clock; +that she told him to have the fire-arms ready; that two men +would call for them at 12 o’clock....” The two men had +turned out to be Booth and Herold, who showed up at midnight +and picked up a carbine and some whiskey. As he had +unburdened himself to Cottingham, he began to cry out, “O, +Mrs. Surratt, that vile woman, she has ruined me! I am to be +shot! I am to be shot!”</p> + +<p>Cottingham had obviously caught the defense by surprise. +Aiken had interviewed him in the bar of the Metropolitan +Hotel on May 20th and, at that time, Cottingham had told the +lawyer that Lloyd had not mentioned Mrs. Surratt. But, he insisted, +“I had an object in that answer. He wanted to pick facts +out of me in the case, but that is not my business; I am an +officer and I did not want to let him know anything either way. +I wanted to come here to the Court and state everything that I +knew.”</p> + +<div class="blockquot"> + +<p>Q. Did I ask you if Mr. Lloyd, in his confession, said anything +at all in reference to Mrs. Surratt?</p> + +<p>A. That question you put to me, and I answered; I said, +“No.”</p> + +<p>Q. That Mr. Lloyd did not say so?</p> + +<p>A. I did say so. I do not deny that.</p> + +<p>Q. Then you gave me to understand, and you are ready now +to swear to it, that you told me a lie?</p> + +<p>A. Undoubtedly, I told you a lie there; for I thought you had +no business to ask me.</p> + +<p>Q. No business! As my witness, had I not a right to have the +truth from you?</p> + +<p>A. I told you you might call me into court; and I state here +that I did lie to you; but when put on my oath, I will +tell the truth.</p> +</div> + +<p>The fact that the Commissioners of Prince George’s County had +offered a $2000.00 reward for information leading to the arrest<span class="pagenum" id="Page_17">[Pg 17]</span> +of “anybody connected with the assassination” had had absolutely +nothing to do with this fine distinction!</p> + +<p>At this juncture, the defense introduced two letters which it +claimed would satisfactorily explain Mrs. Surratt’s April 14th +trip to Surrattsville. The first was signed by George H. Calvert, +Jr., and was dated April 12th. When Mr. Calvert took the stand, +he identified his letter which insisted that Mary Eugenia “pay +the balance remaining due on the land purchased by your late +husband.” The second communication, which had been written +by the defendant to John Nothey from Surrattsville on April +14th, demanded that he settle his debt to her “within the next +ten days” or she would “settle with Mr. Calvert and bring suit +against you immediately.” B. F. Gwynn, who had read this note +to the illiterate Mr. Nothey, said he had received it from Mrs. +Surratt at the tavern on the afternoon of the 14th.</p> + +<p>Lloyd had previously testified that he had been “right smart +in liquor” on that fateful Good Friday. The defense team saw +nothing to be lost by exploiting this admission to the fullest. +Gwynn had seen him on the Marlboro road at 4:30 that afternoon +and “he had been drinking right smartly.” Joe Nott, the +bartender at Lloyd’s tavern, claimed that his employer “had +been drinking a good deal; nearly every day and night, too, he +was pretty tight. At times, he had the appearance of an insane +man from drink.” As far as the 14th was concerned, “he +was pretty tight that evening.”</p> + +<p>Zad Jenkins, Mrs. Surratt’s brother, thought that Lloyd “was +very much intoxicated at the time.” Richard Sweeney, who had +run into the tavern owner on the Marlboro road, remembered +that “he was considerably under the influence of liquor and he +drank on the road.” James Lusby had ridden back to Surrattsville +with him, and said he was “very drunk on that occasion.” +Mrs. Offutt thought that her brother-in-law was “very much in +liquor, more so than I have ever seen him in my life.” So much +so, in fact, that he had become deathly ill shortly after returning +from Marlboro and had to lie down. But Lloyd was evidently +a man of great recuperative powers, because she had seen +him heading back to the barroom a few minutes later.</p> + +<p>As the trial dragged on, it was obvious that the Judge Advocate +was relying heavily on Mrs. Surratt’s refusal (as he called it) to<span class="pagenum" id="Page_18">[Pg 18]</span> +recognize Payne in the vestibule of her house on the night of +April 17th. But Zad Jenkins swore that her “eyesight is defective,” +while her daughter, Anna, testified that “my mother’s eyesight is +very bad, and she has often failed to recognize her friends.” It +was only her vanity, Anna said, that kept her from wearing +glasses. Honora Fitzpatrick, who shared Mrs. Surratt’s room, +said that her landlady had “complained that she could not read +or sew at night, on account of her sight. I have known of her +passing her friend, Mrs. Kirby, on the same side of the street, +and not seeing her at all.” Honora had also been unable to +identify Payne that night until “the skull-cap was taken off his +head.” Mrs. Eliza Holahan, another boarder, knew that “Mrs. +Surratt’s eyesight was defective.” Anna Ward, an old friend, +stated that the defendant had frequently “failed to recognize me +on the street”</p> + +<p>The rest of the case for Mrs. Surratt consisted of evidence of +her good character and loyalty to the Union. Anna Ward knew +her as “a perfect lady and a Christian,” while four Catholic +priests attested to her religious devotion. Her brother recalled +that she frequently gave “milk, tea and such refreshments as she +had in her house to Union troops when they were passing.” +Rachel Semus, whom, Pitman noted, was “colored”, had been +the Surratt cook for six years. She remembered that her employer +had “fed Union soldiers at her house, sometimes a good +many of them; and I know that she always tried to do the best +for them that she could, because I always cooked for them.” Rev. +E. F. Wiget, the president of Gonzaga College, had “always +heard everyone speak very highly of her character.” John and +Bill Hoxton, Surrattsville neighbors, had “never heard her utter +a disloyal word.”</p> + +<p>On June 13th, the defense suddenly recalled Mrs. Offutt. As +she took the stand, Aiken told the Commission “that at the +time Mrs. Offutt gave her testimony before, she came here very +unwell. If I have been correctly informed, she had been suffering +severely from sickness, and had taken considerable laudanum. +Her mind was considerably confused at the time, and she now +wished to correct her testimony in an important particular.” +Colonel Bingham was on his feet in a flash.</p> + +<div class="blockquot"> + +<p>Q. Is it something you swore to here in court?</p> +<p><span class="pagenum" id="Page_19">[Pg 19]</span></p> +<p>A. Of course, I took the oath when I appeared here.</p> + +<p>Q. Do you want to correct anything you have sworn to here +in court?</p> + +<p>A. Yes, sir, I should like to do so.</p> +</div> + +<p>There wasn’t much Bingham could do with an obviously determined +lady, and he sat down as abruptly as he had gotten up.</p> + +<p>Mrs. Offutt reminded Hunter and his colleagues that when +she had testified on May 17th, the Judge Advocate had asked her +whether Mrs. Surratt had handed her a package at Lloyd’s +tavern on April 14th, and her answer had been “No.” Now, she +remembered that “she did hand me a package and said she requested +to leave it there.” Later on, she had seen it “lying on +the sofa in the parlor.” After Mrs. Surratt had left for Washington, +the witness had noticed that Lloyd went into the parlor +and “had a package in his hand.” She thought that “after the +package was handed to me, it might have been taken by Mrs. +Surratt and handed to Lloyd, but I did not see her give it to +him.”</p> + +<p>As Clampitt reminded the Commission, “Mr. Lloyd, under +oath, swore that he received a package from Mrs. Surratt. We +wish to show that a package was received of Mrs. Surratt by +Mrs. Offutt. We wish to show in this connection that it was the +same package that Mr. Lloyd swore to. If we can show that this +was the identical package that Mr. Lloyd swore to receiving, we +can show that his testimony is not worth the snap of a finger.” +But Mrs. Offutt did not know what was in the package; all she +remembered was that Mrs. Surratt had given it to her around +5:30 that afternoon and she had “laid it down” on the parlor +sofa. She had no idea of what had happened to it after that, +except that she had seen a package in her brother-in-law’s hands +when he entered the house a few minutes later.</p> + +<p>When the defense rested on June 13th, the government trotted +out John Ryan, Frank Smith, James P. Young and P. T. Ransford, +all of whom swore that Lou Weichmann, its witness-in-chief, +was a very trustworthy fellow indeed. But only one—Young—had +known him for any length of time. John T. Holohan, +who had occupied a second-floor room at Mrs. Surratt’s +in early 1865, swore that he had never heard anyone mention +his landlady’s bad eyesight. With the testimony of six Prince<span class="pagenum" id="Page_20">[Pg 20]</span> +George’s County neighbors that Zad Jenkins was, among other +things, “one of the most disloyal men in the country,” the +prosecution had shot its wad as far as Mrs. Surratt was concerned.</p> + +<p>The closing arguments began on June 16th and continued +for twelve days. While they droned on, John Clampitt tried to +introduce the joint affidavit of Louis Carland and John P. +Brophy, two friends of Weichmann, who swore that he had told +them that he had perjured himself during the trial. He, and +not Mrs. Surratt, had suggested that he try to borrow Booth’s +buggy for the April 11th trip to Surrattsville. He had also informed +Carland and Brophy that he had told a fellow clerk in +the War Department all about the kidnap plot as early as +February, and that Stanton had forced him to testify against +Mrs. Surratt despite the fact that Lou thought she was innocent. +But he had played along with the Secretary of War because +“I didn’t want to hang.”</p> + +<p>But Holt wasn’t going to let a piece of notarized paper spring +Mary Eugenia. He rejected it as hearsay and, when Clampitt +offered to produce Brophy in person, the Judge Advocate +thumbed down his request on the ground that it was too late to +call another witness. But on June 27th, eleven days after the +prosecution had closed its case, Holt called one John Cantlin to +testify to an anonymous advertisement printed in the <i>Selma</i> +(Alabama) <i>Dispatch</i> on December 1, 1864, offering to kill Lincoln, +Seward, and Johnson, for one million dollars. Brophy felt +so strongly about the rejection of his affidavit that he tried to see +Andrew Johnson about it but the President was incommunicado +as far as the trial was concerned.</p> + +<p>In his closing argument, Reverdy Johnson pointed out that the +Military Commission lacked the power to try Mrs. Surratt. “As +counsel for one of the parties,” he told its members, “I should +esteem myself dishonored if I attempted to rescue my client from +a proper trial for the offense charged against her, by denying the +jurisdiction of the Commission, upon grounds that I did not +conscientiously believe to be sound. And, in what I have done, +I have not more had in view the defense of Mrs. Surratt, than +of the Constitution and the laws. In my view, in this respect, +her cause is the cause of every citizen. And let it not be supposed<span class="pagenum" id="Page_21">[Pg 21]</span> +that I am seeking to secure impunity to any one who may have +been guilty of the horrid crimes of the night of the 14th of +April. Over these, the civil courts of this District have ample +jurisdiction, and will faithfully exercise it if the cases are remitted +to them, and guilt is legally established, and will surely +award the punishment known to the laws.”</p> + +<p>Johnson left it to his youthful associates to discuss the substantive +case against Mrs. Surratt and young Aiken did his best. +What had “two months of patient and unwearying investigation, +and the most thorough search for evidence that was probably +ever made” developed insofar as his client was concerned? Only +that she knew Booth (and who in Washington did not?), that +she had taken a message to Lloyd (so had a hundred others), +and that she had failed to recognize Payne (bad eyes in a dim +light). The chief witnesses against her—the unreliable Weichmann +and the drunken Lloyd—were both trying to save their +own skins. He ended in a blaze of rhetoric, asking the Commission’s +members to disregard “suspicion fastened and fed upon +the facts of acquaintance and mere fortuitous intercourse with +that man in whose name so many miseries gather, the assassinator +of the President.”</p> + +<p>Colonel Bingham, who summed up for the prosecution, ended +his two-day presentation with the observation that Mrs. Surratt +was “as surely in the conspiracy to murder the President as was +John Wilkes Booth himself.” After all, wasn’t her house the +headquarters of the conspirators? And didn’t she deliver a fieldglass +to Lloyd and instruct him to have the carbines ready? +Would an innocent woman fail to recognize a man who had +been her boarder? If she wasn’t involved in the plot against the +President, why did Booth always ask for her when he visited H +Street? As far as the Special Judge Advocate was concerned, the +questions answered themselves.</p> + +<p>When he sat down late in the afternoon of June 28th, the +court was cleared for the last time and the Commission began +its deliberation. It took only minutes for it to decide that Payne, +Herold and Atzerodt should hang. Dr. Mudd, Mike O’Laughlin +and Sam Arnold were sentenced to “hard labor for life,” while +Ed Spangler drew six years. But the Commission couldn’t make +up its collective mind about Mrs. Surratt. On its first ballot,<span class="pagenum" id="Page_22">[Pg 22]</span> +only four of its members voted to execute her. The other five +could not be convinced that the evidence had disclosed that she +was guilty of anything more than running a boardinghouse that +catered to a mighty strange lot of roomers.</p> + +<p>But two days of Washington’s heat did what all of the Judge +Advocate’s arguments had failed to accomplish. At noon, on +June 30th, the five recalcitrants voted that “the said Mary E. +Surratt be hanged by the neck until she be dead, at such time and +place as the President of the United States shall direct.” However, +they insisted on appending a petition for commutation of +the “sentence of death ... to imprisonment for life” to the record +of the case which Holt was to submit to Johnson. On July +5th, the President formally approved the Commission’s sentences +and ordered that Herold, Atzerodt, Payne and Mrs. Surratt be +executed “on the seventh day of July, 1865, between the hours +of ten o’clock a.m. and two o’clock p.m. of that day.” Whether +he ever saw the recommendation for mercy or not, no one could +say.</p> + +<p>But Clampitt and Aiken weren’t ready to call it quits yet. At +two o’clock on the morning of July 7th, the two young men +persuaded Andrew Wylie, one of the Justices of the Supreme +Court of the District of Columbia, to issue a writ of habeas corpus +on the ground that prosecution by the Military Commission +had deprived Mary Eugenia of her right to trial by jury. Major +General W. S. Hancock, the commander of the Middle Military +District, was ordered “to produce ... the body of your said petitioner” +at ten o’clock the next morning. But Stanton had an +ace up his sleeve. When Hancock, accompanied by Attorney +General James Speed, walked into Judge Wylie’s courtroom, almost +two hours after the time specified in the writ, he did not +have Mrs. Surratt with him. What he did have was a message +from the President, declaring that “I do hereby especially suspend +this writ.” Judge Wylie had no choice—he yielded to the +suspension.</p> + +<p>The scaffold had been built in the courtyard of the Old Penitentiary +Building. Just as General Hancock was presenting Johnson’s +suspension order to Judge Wylie, Captain Christian Rath, +the officer in charge of the execution, approved the drop. Four +graves had been dug to the left of the gallows near the prison<span class="pagenum" id="Page_23">[Pg 23]</span> +wall. At the side of each one was a pine box containing glass +bottles in which the name of each defendant had been placed. +Shortly before two o’clock, Mrs. Surratt, despite Payne’s last +minute statement that she “was innocent of the murder of the +President,” was led from her cell. Accompanied by two priests, +she climbed the fifteen steps to the gallow’s platform where she +sat in an armchair while an officer read the sentences aloud. Five +minutes later, with her hands tied behind her back and her face +covered by a white hood, she dropped into eternity.</p> + +<p>On July 15th, the four surviving defendants, who had begun +serving their terms in the Albany Penitentiary, were re-sentenced +to “hard labor in the military prison at Dry Tortugas, Florida.” +In 1867, O’Laughlin died of yellow fever, but Mudd was pardoned +in 1868, and Spangler and Arnold one year later. In 1867, +John Harrison Surratt, whom spectator Walt Whitman described +as “very young ... with sharp eyes,” was tried by a Washington +civil court for his part in the conspiracy. The jury voted +eight-to-four for acquittal and the government decided to call it +a day and dropped the charges against him. By this time, everyone +knew that Stanton had suppressed Booth’s captured diary +which contained an entry for April 14th, clearly indicating that +it had not been until that very day that the actor had decided +to kill rather than kidnap the President. Mary Eugenia had +never had even a fighting chance.</p> +<hr class="full"> + +<div class="chapter"> +<p><span class="pagenum" id="Page_24">[Pg 24]</span></p> + +<h2 class="nobreak" id="c4">2</h2> +</div> + +<p class="u large"><i>Atlanta’s Northern Jew</i></p> + +<p class="c xlarge">The State of Georgia</p> + +<p class="c xlarge"><i>versus</i></p> + +<p class="c xlarge">Leo M. Frank</p> + + +<p>The southern Negro stands halfway between slavery and freedom. +On one hand, he is his own man, able to own property, to +be compensated for his labor and even, in some areas, to vote. +On the other, he must endure many forms of segregation, perform +his community’s less desirable chores, and suffer whatever slings +and arrows his white neighbors choose to send his way. But +occasionally he finds himself an honest-to-goodness hero. This +metamorphosis occurs whenever he mounts the witness stand +to testify against another Negro whom, for one reason or another, +the state wants to put out of the way. In Atlanta, in 1913, it didn’t +seem to make much difference that the victim was a twenty-nine-year-old +northern Jew.</p> + +<p>After he graduated from Cornell, Brooklyn-born Leo M. +Frank married a Georgia girl. With her parents’ help, he was +able to buy a small interest in the National Pencil Factory, a +medium-size enterprise which operated out of a four-story building +on South Forsyth Street in Atlanta. National employed more +than one hundred employees, most of whom were women, and +Frank, who was also its production superintendent, directly +supervised their work from his tiny second-floor front office.</p> + +<p>The factory building was a narrow rectangular structure which +ran 150 feet back from South Forsyth Street to a small alley. The +entrance to the plant was through an enclosed hallway on the +first floor. An elevator shaft was located in this hallway near the<span class="pagenum" id="Page_25">[Pg 25]</span> +foot of a glass-enclosed stairwell. Behind this shaft there was a +hatchway which opened into the basement. Outside of a boiler +and some lockers for Negro employees, the cellar was empty.</p> + +<p>The stairs led up to the building’s second floor where Frank’s +small cubicle was located. His office opened into a large room +where most of the plant’s clerical help worked. At the very rear +of the building was National’s metal room where tips were +attached to the ends of completed pencils. The metal room, +which was separated from the rest of the second floor by a wooden +partition, was entered by means of a double glass door. The +actual manufacturing of lead pencils was performed on the third +and fourth floors.</p> + +<p>National’s employees were normally paid at noon on Saturday. +However, Saturday, April 26, 1913, was a holiday—Confederate +Memorial Day—and Frank had met his payroll the day before. +But some of the girls who worked in the metal room had been +laid off the preceding Monday because the plant had run out of +pencil tips. Some of them decided to take advantage of the holiday +and pick up the few dollars owed them for their single day’s +work. One girl, fourteen-year-old Mary Phagan, who lived in an +Atlanta suburb, decided to kill two birds with one stone—she +would pick up her pay at the plant and then take in the parade +which was scheduled to start at two p.m.</p> + +<p>Mary ate an early lunch of cabbage and wheat bread and left +her house at 11:45. She boarded a street car which let her off at +the corner of Broad and Hunter Streets, just a block away from +the pencil factory. She arrived at National shortly after noon and +went immediately to Frank’s office where she received a pay +envelope containing $1.25. She asked the superintendent whether +a new supply of metal had arrived and, when he said “No,” she +left the office, and he listened to her footsteps as she went down +the stairs to the first floor. Only one other person was ever to see +her alive again.</p> + +<p>Fifteen hours later, Newt Lee, the factory’s night watchman, +was making his rounds through the darkened building. In the +cellar, near the back of the building, he found the body of Mary +Phagan. The girl had been strangled and it appeared that she +had probably been raped. Although no spermatozoa were found +on her body or her clothes, the epithelium of the walls of the<span class="pagenum" id="Page_26">[Pg 26]</span> +vagina was torn and bruised and her underwear, which was ripped, +was spotted with blood. From the condition of her clothes, +it was obvious that whoever had killed the girl had dragged her +body along the cellar floor. There was a deep cut on her head and +numerous bruises on her arms and legs.</p> + +<p>Newt Lee was a Negro which was enough to make him a prime +suspect. He was immediately arrested and thrown into the Fulton +County Jail, and it seemed that the Atlanta police had more than +enough to mark the case solved. But because somebody thought +that Frank had appeared unduly nervous when he was informed +of Mary’s death, the police decided to book him, too. Frank +proved anything but an uncooperative prisoner. He hired private +detectives to assist the Atlanta constabulary in its efforts to find +the girl’s murderer, and persuaded his captors to allow him to +spend some time alone with Lee in his cell in order to induce +him to talk.</p> + +<p>But the night watchman stuck to his plea of innocence and was +soon released while his employer was held for the action of the +grand jury. A garrulous prostitute informed the police that +Frank had telephoned her the night before the murder and +pleaded for a room. He had told her that it was a matter of “life +and death.” She also swore that, on the day after Mary’s body was +found, he had offered her a large sum of money to leave town. +Although she later repudiated her entire story and disappeared, +the damage was done and Frank, who was referred to by a local +magazine as “this filthy, perverted Jew of New York,” was indicted +on May 24, 1913, for Mary’s murder.</p> + +<p>When the dead girl’s body was found, two notes, scribbled on +sheets of paper ripped from a scratch pad, were discovered on +the floor near her. Written in pidgin English, they claimed that +“a long tall negro” had been making love to Mary and that “i +write while play with me.” According to the author “he said he +wood love me, laid down, play like the night witch did it, but +that long tall negro did buy his self.”</p> + +<p>The police were convinced that Frank had written the notes +in an attempt to throw the blame on Lee. This theory was somewhat +shaken when, on the Thursday after the murder, a Negro +porter named Jim Conley was discovered scrubbing a bloodstained +shirt in the factory’s basement sink. Conley, who was later<span class="pagenum" id="Page_27">[Pg 27]</span> +described as a “low squatty Negro with a gingercake complexion,” +was picked up and lodged in the county lockup where he languished +for almost three weeks. However, when he finally convinced +the police that he could not write, he was given back his +shirt and released.</p> + +<p>Then Harry Scott, a Pinkerton operative engaged by the pencil +factory to solve the crime, discovered that Conley was much more +literate than he had let on. Now thoroughly frightened, the +porter was returned to jail where he poured out a tale of sex and +murder that was sure to find ready listeners. He said that on +April 26th he had stood watch for Frank, who habitually used the +factory as seraglio, when the superintendent had assaulted and +killed Mary Phagan. Then, after helping his employer hide the +body in the basement, he had written the two notes which had +been found near her corpse. In all, he told the investigators from +the Solicitor General’s office four different versions of this story. +As each one was investigated and found untenable, Conley +assured his avid audience that “Sure, I lied but I swear to God I +am telling the truth this time.” The following July, he was to tell +a fifth story on the truth of which a man’s life was to depend.</p> + +<p>Although Frank testified before the coroner’s jury and claimed +that he neither knew Mary Phagan nor had killed her, he was +swiftly indicted for her murder and his trial began on July 28, +1913, in the Fulton County Courthouse before Superior Court +Judge L. S. Roan and an all-male jury. By the time the trial got +under way, all Atlanta had prejudged the “Jew of New York” and +the newspapers were off and running on an orgy of sensationalism +that was not to die down until Leo Frank had become the symbol +of the Gate City’s greatest shame.</p> + +<p>Conley was, by all odds, the prosecution’s most important witness. +Ordinarily, the testimony of a Negro who “always seemed to +be kind of nervous or half drunk” wouldn’t have carried much +weight in a Georgia court. But what Arthur Garfield Hays +referred to as “counter-prejudices” were at work. To the rednecks, +a Jew from Brooklyn was even worse than a “no-account +nigger” and Conley’s audience was sublimely ready to believe +every word he uttered.</p> + +<p>He told a fantastic story. Frank had come to him early on the +morning of April 26th and said: “I want you to watch for me like<span class="pagenum" id="Page_28">[Pg 28]</span> +you have been doing the rest of the Saturdays.” According to +Conley, for more than two years he had been picking up a little +extra change by acting as Frank’s lookout while the superintendent +was enjoying himself with various women in his office. “I +always stayed on the first floor ... and watch for Mr. Frank, +while he and a young lady would be upon the second floor +chatting.”</p> + +<p>On this particular Saturday, the witness had been given very +precise instructions as to the afternoon’s activities. “Now, there +will be a young lady here after a while,” Frank had told him, +“and me and her are going to chat a little.” When the girl arrived, +the superintendent would “stomp like I did before” and +Conley was to shut the door that led to second floor. “Now, when +I whistle, I will be through, so you can go and unlock the door +and come upstairs to my office like you were going to borrow +some money from me and that will give the young lady time to +get out.”</p> + +<p>Shortly after noon, he swore, he had seen Mary Phagan climbing +up the steps to the superintendent’s office. He had heard her +footsteps approaching Frank’s cubicle and then the sound of two +people walking toward the metal room. A few minutes later, +there was a scream, followed by the sound of someone running +from the metal room to the front of the building. At that moment, +another young lady had entered the building, walked up +the stairway to the second floor and immediately come down and +left the factory. How she had opened the locked door was anybody’s +guess.</p> + +<p>Apparently, Conley was used to an occasional scream or two +emanating from the second floor on Saturday afternoons because +he promptly went to sleep. “Next thing I knew, Mr. Frank was +up over my head stomping, and then I went and locked the door ... and +the next thing I heard Mr. Frank whistling. When I +heard him whistle, I went and unlocked the door just like he +said and went on up the steps. Mr. Frank was standing up there +at the top of the steps, shivering and trembling and rubbing his +hands like this. He had a little rope in his hand, a long, wide, +piece of cord. His eyes were wide and they looked right funny. +He looked funny out of his eyes. His face was red.”</p> + +<p>After Frank had composed himself, he told the porter that<span class="pagenum" id="Page_29">[Pg 29]</span> +there had been a little trouble upstairs. “I wanted to be with the +little girl,” he had said, “and she refused me, and I struck her, +and I guess I struck her too hard, and she fell and hit her head +against something, and I don’t know how bad she got hurt. Of +course, you know that I ain’t built like other men.”</p> + +<p>The two men had then gone upstairs to the metal room where +Conley had picked up the dead girl’s body and carried it to the +elevator. He had taken it to the basement where it was placed on +a trash heap near the rear of the building. Then, Frank had +ordered him to write the two notes which were eventually found +near the corpse. The porter insisted that the defendant had dictated +the notes to him and had promised him $200.00 for his help +in covering up the crime. Frank’s bank balance on the day before +this grandiose offer was exactly sixteen dollars.</p> + +<p>After Conley had graphically described the murder itself, +Hugh M. Dorsey, the Solicitor General of Georgia, made him +recount what he had witnessed on other Saturdays when he +claimed Frank was entertaining some of the easier ladies of +Atlanta in his upstairs lovenest. He remembered one girl in particular, +a Daisy Hopkins, who had been a steady visitor to the +second-floor playroom. Just before Thanksgiving of 1912, he had +inadvertently wandered into the superintendent’s office where he +saw Daisy “sitting down in a chair and she had her clothes up to +here, and he was down on his knees and she had her hands on +Mr. Frank and I found them in that position.” When the couple +left the office, they found the inquisitive porter waiting in the +anteroom.</p> + +<div class="blockquot"> + +<p>Q. What was said when they saw you?</p> + +<p>A. When Mr. Frank came out of the office, Mr. Frank was +hollering, “Yes, that is right, that is right;” and he said, +“That is all right, it will be easy to fix it that way.”</p> +</div> + +<p>According to Conley, the defendant was equally at home in +other parts of the factory. “I have seen him another time,” he +said, “There in the packing room with a young lady lying on the +table.”</p> + +<div class="blockquot"> + +<p>Q. How was the woman on the table?</p> + +<p>A. Well, she was on the edge of the table when I saw her.</p> +</div> + +<p>Before he left the stand, the witness, who proudly described himself, +in Frank’s words, as “the best nigger I ever saw,” had titillated<span class="pagenum" id="Page_30">[Pg 30]</span> +the spectators with a running account of two years as a peeping +Tom in the pencil factory. What went on during those languorous +Saturday afternoons was enough to shock a satyr. “Why,” +Conley said, about Frank, “I have seen him in a position I +haven’t seen any other man that has got children.”</p> + +<p>But Frank wasn’t the only one whom Conley had observed +making hay in what must have been the most sybaritic factory in +Georgia—or anywhere else, for that matter. Once, Frank and his +paramour of the moment had been joined by a Mr. Dalton and +another lady. They had told the porter to “go down and see +nobody don’t come up and you will have a chance to make some +money.” Dalton, who was to return to the plant on many future +occasions, usually took his playmates down to the basement. From +his first-floor observation post, Conley was able to watch both the +stairs leading to Frank’s office and the hatchway to the cellar. He +evidently proved to be sharp of eye for, until the death of Mary +Phagan, no one in Atlanta knew that more was being made at +National than pencils. For his services, he received from twenty-five +cents to one dollar a sortie. Although Dalton later testified +that he had found the factory a convenient place in which to +make love, he denied that he had ever seen Frank similarly +occupied.</p> + +<p>According to Frank, Mary Phagan had arrived in his office at +12:12 p.m. that Saturday. Another metal room worker, Monteen +Stover, who had also gone to the factory to pick up her pay, said +that she had been in the plant from 12:05 to 12:10. Since Conley +had sworn that Miss Stover had entered the building after the +dead girl, then Mary must have entered the plant before 12:05. +However, Frank’s stenographer had taken the last of his dictation +at 12:02, at which time she went home. Thus, it was clear that the +only time in which the superintendent could have been alone +with Mary was between 12:02 and 12:05. Lemmie Quinn, the +factory foreman, had seen him in his office at 12:20 when, Quinn +testified, he had exhibited no sign of nervousness.</p> + +<p>According to its schedule, the English Avenue car on which +Mary had taken her last ride was due to arrive at the corner of +Broad and Marietta Streets at 12:07½ p.m. Mathas, its motorman, +was certain that “we were on schedule.” He also believed +that “we got to Broad and Hunter about 12:10.” It was at the<span class="pagenum" id="Page_31">[Pg 31]</span> +latter crossing that Mary had left the street car and gone directly +to the factory which was only a block away.</p> + +<p>Hollis, the conductor, was just as definite. “We ran on schedule +that day,” he testified. “We got to Broad and Marietta 7½ minutes +after 12, schedule time ... it takes 2½ minutes to run from +Broad and Marietta to Broad and Hunter. I have timed the car +again and again since then.” Occasionally, a car would run ahead +of schedule but “hardly ever.” He insisted that it was “against the +rules of the company to get to the city ahead of time.”</p> + +<p>The division superintendent backed up the motorman and +the conductor as far as the schedules went. However, he remembered +that the men frequently came in ahead of time. Just a +week before the trial, he had suspended a motorman for arriving +a few minutes before his scheduled time. Sometimes, one car +would “cut off” another which was ahead of it and come in +much too early. On one occasion, he had seen one car cut off +another which was scheduled to arrive at Broad and Marietta at +12:05.</p> + +<p>In rebuttal, the prosecution put one of the line’s inspectors on +the stand. He had never heard of a 12:07½ time for reaching +Broad and Marietta; as he remembered it, the schedule called for +a 12:07 arrival at that crossing. On one occasion, he had seen +Mathas cut off the car in front of him. The men liked to come in +ahead of schedule “on relief time, for supper and dinner.” In +fact, the crew on Mary’s car had been relieved for lunch just +after it arrived in the center of the city after dropping her off at +Broad and Hunter.</p> + +<p>At 12:50 that day, Frank had announced to several people in +the factory that he was going home for lunch. Three employees +had seen him leave the building ten minutes later and a dozen +witnesses passed him as he walked home where he arrived at 1:20. +Yet Conley had said that it had been 12:56 when he had seen +Frank at the head of the stairs with a piece of rope in his hand. +He had also testified that the two notes had been written after +one o’clock and that Frank was still in the building when the +porter left at 1:30.</p> + +<p>Conley had stated that Mary’s body had been taken to the +basement in the electric elevator that serviced the building. But +two factory employees who had been working on the fourth floor<span class="pagenum" id="Page_32">[Pg 32]</span> +that afternoon had not heard the whirring noise that always +accompanied its operation. More important, a pile of trash that +Conley himself had observed at the bottom of the elevator shaft +on Saturday morning was not crushed by the descending car.</p> + +<p>The porter had also insisted that Mary had been killed in the +metal room. However, no blood was found anywhere on the +second floor or in the elevator cab. But in the basement, Atlanta +police had found blood scattered on the floor, the walls and the +inner door that led to the alley in back of the plant. Incidentally, +the hasp of the outer door had been pried off with an iron bar.</p> + +<p>Frank’s attorneys were convinced that Conley, who was on a +holiday toot, had attacked Mary and killed her. It was their +opinion that the cinders which were found all over her clothes +indicated that Mary had put up quite a battle for her life in the +cellar and that it had taken the drunken porter some time to kill +her. After her death, he had suddenly come to his senses and +decided to write notes putting the blame on a “long, sleam tall +negro.” Since he was a stocky, light-colored Negro, this description +would, he had thought, prevent suspicion from falling on +him. His last precautionary effort had been to wash his bloodstained +shirt in the basement sink on the Thursday after the +murder.</p> + +<p>In addition to trying to prove that Frank was a sexual deviate, +the prosecution was determined to show that he had had his +eyes on Mary for a long time. W. E. Turner, a boy who worked as +a messenger at National, said that “I saw Leo Frank talking to +Mary Phagan on the second floor about the middle of March.... +There was nobody else in the room then. She was going to work +when he stopped her. She told him she had to go to work. He +told her that he was the superintendent of the factory and that +he wanted to talk to her ... she backed off, and he went on +towards her, talking to her. The last thing I heard him say was +he wanted to talk to her.” At this point, Turner had left the +floor and had seen and heard nothing else.</p> + +<p>Dewie Howell, a girl who had once labored in the metal room +with Mary, had been found by the prosecution in Cincinnati’s +Home of the Good Shepherd. Miss Howell had worked at the +pencil factory during February and March of 1913. She had “seen +Mr. Frank hold his hand on Mary’s shoulder. He would stand<span class="pagenum" id="Page_33">[Pg 33]</span> +pretty close to Mary when he talked to her. He would lean over +in her face.” Irene Jackson, another National employee, had seen +him open the door of the girls’ dressing room one afternoon and +stare inside.</p> + +<p>After Frank had been arrested, four policemen came to the +jail with Conley in tow and insisted on seeing the defendant. +Frank had refused to talk to them because his lawyer wasn’t to +be present at the conference. Dorsey took great pleasure in pointing +out that it had been one of the private investigators hired +by the factory at Frank’s request who had suggested that Conley +be taken to the superintendent’s cell in an effort to shake the +truth out of the porter. He was later to tell the jury that Frank +had not been so coy at the time he had requested permission to +visit Newt Lee’s cell when the night watchman was still under +suspicion.</p> + +<p>Since the time of Mary’s visit to the factory was crucial to both +the state’s and the defendant’s cases, each side tried to show by +the condition of the food in her stomach how many minutes had +elapsed between her 11:30 lunch and the time she died. Dr. H. F. +Harris, Dorsey’s medical expert, was the secretary of the Georgia +Board of Health while Dr. W. F. Westmoreland, who testified for +the defense, was its former president. Harris thought that the +girl had eaten her cabbage and wheat bread “perhaps three quarters +of an hour or half an hour or forty minutes, or something +like that, before death occurred.” Westmoreland estimated that +death had occurred nearer to one o’clock. Both physicians had +previously been involved in an altercation provoked by charges +of professional misconduct being filed against Harris by Westmoreland. +The former was subsequently cleared and his accuser +forced to resign as president of the Board of Health. There was +bad blood all around and the two physicians effectively neutralized +each other.</p> + +<p>When the defense took over, it tried to dispel the aura of +sexual degeneracy that the Solicitor General had so painstakingly +developed. A reward of $5000.00, offered by William J. Burns to +anyone who could turn up a single immoral act in Frank’s past +life, went begging. Even the Atlanta police, who could hardly be +classed as impartial observers, were unable to locate any evidence +in Brooklyn or Ithaca that in any way implicated the defendant.<span class="pagenum" id="Page_34">[Pg 34]</span> +So clean was his record that Chief Beavers did an about-face and +insisted that the police had never claimed that he was a degenerate. +But if Atlanta officialdom had changed its mind, the man in +the street still saw Frank as the anti-Christ.</p> + +<p>Dorsey, who was later to refer to the sodomy trial of Oscar +Wilde in his summation, had also introduced testimony that Mrs. +Frank had never visited her husband in jail. What could be +clearer evidence that he was guilty of murdering what Tom +Watson’s <i>The Jeffersonian</i> referred to as “our little girl—ours +by the Eternal God!” To rebut these inferences, the defense put +witness after witness on the stand to testify to Frank’s good character. +But Judge Roan consistently permitted Dorsey to undermine +the effect of their testimony. The cross-examination of Mary +Pirk, a National worker, was typical.</p> + +<div class="blockquot"> + +<p>Q. You never heard of a single thing immoral during the five +years?</p> + +<p>A. Yes, sir, that’s true.</p> + +<p>Q. You never knew of his being guilty of a thing that was +immoral during the five years—is that true?</p> + +<p>A. Yes, sir.</p> + +<p>Q. You never heard a single soul during that time discuss it?</p> + +<p>A. No, sir.</p> + +<p>Q. You never heard of his going in the dressing room there +of the girls?</p> + +<p>A. No, sir.</p> + +<p>Q. You never heard of his slapping them as he would go by?</p> + +<p>A. No, sir.</p> +</div> + +<p>The trial was destined to last for a month. As it wore on, popular +feeling against Frank grew by leaps and bounds. In its last +week, the Solicitor General was carried down the steps of the +courthouse at the end of each day on the shoulders of a surging +crowd that shouted, “Hurrah for Dorsey.” On August 23rd, when +one of Frank’s character witnesses was on the stand, the spectators +began to laugh and it took all of Judge Roan’s courtroom savvy +to quiet them down. An hour later, a claque in the rear of the +room began to applaud exchanges of causticities between Dorsey +and various defense lawyers. Again, Judge Roan stepped into the +breech and restored some sort of order. But apparently he was +at the end of his resources because he promptly called in the<span class="pagenum" id="Page_35">[Pg 35]</span> +police and the Fifth Georgia Regiment to keep the restive audience +under wraps.</p> + +<p>On August 25, 1913, the trial’s last day, the courthouse was +ringed by thousands of people who shouted such pleasantries as +“Hang the Jew or we will hang you!” into the Pryor Avenue +windows of the first-floor courtroom. As the <i>Atlanta Constitution</i> +described it, “A veritable honeycomb of humanity spread over +the section ... Men and women clung to the walls of buildings +and stood in doorways. Windows were crowded with women and +girls and children. It was as though a street audience had gathered +to watch an eventful procession.”</p> + +<p>The situation grew so bad that Roan cleared the courtroom +when the jury announced that it had decided on a verdict. The +cheering from the outside reached such a crescendo that it was +almost impossible to hear the foreman inform the judge that he +and his colleagues had found Leo Frank guilty of murder in the +first degree. When a court bailiff leaned out of a window and +shouted the word “guilty,” a reporter noted that “a combined +shout ... rose to the sky. Pandemonium reigned. Hats went into +the air. Women wept and shouted by turns ... Few will live to +see another such demonstration.”</p> + +<p>Judge Roan, who had previously said that “if Christ and his +angels came down here and showed this jury Frank was innocent, +it would bring him in guilty,” denied his attorneys’ motion for a +new trial despite the fact that he publicly acknowledged that he +did not know “this morning whether Leo Frank is innocent or +guilty.” The next day, Frank was sentenced to be hanged in the +courtyard of the “common jail of Fulton County.” Before Roan +went through the dreary formalities that marked the first step in +taking a man’s life, he afforded the slender, dark-haired defendant +an opportunity to make a last statement. Frank, in a voice that +was all but drowned out by the clamor outside the courtroom, +swore that “I am innocent of little Mary Phagan’s death, and +have no knowledge of how it occurred....”</p> + +<p>On February 17, 1914, the Supreme Court of Georgia affirmed +the death sentence. Ten months later, the United States Supreme +Court refused to intervene although Mr. Justice Holmes was +moved to state that “I very seriously doubt if the petitioner has +had due process of law ... because of the trial taking place in<span class="pagenum" id="Page_36">[Pg 36]</span> +the presence of a hostile demonstration and seemingly dangerous +crowd.” It looked very much as if Leo Frank would never live to +see his thirty-first year.</p> + +<p>But on June 30, 1915, Governor John H. Slaton, with rare +courage, sacrificed his political career and commuted Frank’s +sentence to life imprisonment. Unfortunately, his <i>beau geste</i> was +an empty one because, several months later, a mob broke into the +prison hospital where Frank was recovering from an attack by a +fellow prisoner who, in a frenzy of self-righteousness, had cut his +throat, rushed him back to Atlanta, and hanged him from a tree +that grew in front of Mary Phagan’s house. After the jury’s verdict, +the defendant had asked a reporter, “Can it be that the law, +and our system of its administration, is so inexorable that truth +and innocence may never be heard after once the die is cast? Is +the door forever closed and the way barred?” His swinging body +was the answer.</p> +<hr class="full"> + +<div class="chapter"> +<p><span class="pagenum" id="Page_37">[Pg 37]</span></p> + +<h2 class="nobreak" id="c5">3</h2> +</div> + +<p class="u large"><i>In Union There is Death</i></p> + +<p class="c xlarge">The State of California</p> + +<p class="c xlarge"><i>versus</i></p> + +<p class="c xlarge">Thomas J. Mooney</p> + + +<p>Saturday, July 22, 1916, was a day that San Francisco would +long remember. Its Chamber of Commerce, anticipating early +American entrance into World War I, had organized a Preparedness +Day parade which was scheduled to kick off at 1:30 p.m. The +two-mile line of march extended from the Ferry end of Market +Street to the Civic Center, and every organization in the Bay area +that could muster a column of fours was to be represented. Market +Street had been closed to all traffic shortly before the parade +started and an enormous crowd lined both sides of the route. The +various units had assembled in the Embarcadero at noon and +marched westward to the music of more bands than San Francisco +had ever heard at one time. At 2:06 p.m., as the Spanish-American +War veterans stepped smartly out of Steuart Street to join the +parade, an enormous explosion shattered the air. When the +smoke cleared, the police found eight mutilated corpses lying in +the street.</p> + +<p>It was soon clear that a bomb had gone off on the westerly +sidewalk of Steuart Street, some seventeen feet in from Market +Street. Captain Duncan Matheson of the San Francisco Police, +who was on duty nearby, ordered Lieutenant Stephen Bunner to +take care of the wounded while he kept the parade moving. As +soon as the dead and injured had been taken away, Bunner ordered +the sidewalks washed with fire hoses. He later stated that<span class="pagenum" id="Page_38">[Pg 38]</span> +he “was satisfied that all the evidence had been collected by the +detectives and the persons around before I ordered the sidewalks +washed.”</p> + +<p>About an hour and a half later, District Attorney Charles M. +Fickert, accompanied by a San Francisco banker named Frederick +H. Colburn, arrived at the scene. Colburn found some “nickel +flattened bullets and a ragged piece of pipe, one or two .32 cartridge +shells, rim fire,” on the sidewalk. A remarkably curious +man, he then asked for a sledge hammer and “broke a strip three +or four inches wide around the little hole in the sidewalk where +the concrete was shattered.” Some more cartridges and several +jagged pieces of iron were found in the hole. Colburn then +pushed in some loosened bricks in the adjoining wall and discovered +a few more scraps of metal lodged behind them.</p> + +<p>After clearing Market Street for the 42nd Division which had +come over from Oakland to join the parade, Captain Matheson +returned to Steuart Street, only to find that Bunner had washed +the sidewalk clean. The police officer walked over the explosion +area and found a bloody strip of iron, a narrow piece of metal +with several nails in it, fifteen exploded .32-caliber shells, three +.22-caliber bullets, and some fibre strands which he thought +looked like “imitation leather.” He then returned to Market +Street where he “stayed until all the parade had cleared about +4:30, and then walked back to the scene of the explosion.”</p> + +<p>In his absence, Fickert and Colburn had arrived and the latter +had enlarged the break in the sidewalk. Matheson was extremely +angry that no efforts had been made to guard the explosion area +and he ordered Steuart Street roped off. He also set up a police +detail to keep the souvenir hunters from removing any evidence +that had not yet been picked over. The detectives who had +swarmed over the area minutes after the explosion had taken no +measurements of the size of the hole in the sidewalk and had +made no record of the positions of the victims’ bodies.</p> + +<p>That evening, Martin Swanson, a former Pinkerton operative +who was employed by the Public Utilities Protective Bureau, +strolled into Fickert’s office and nonchalantly remarked that he +knew who was responsible for the tragedy. He named two coast +labor leaders—Warren K. Billings and Thomas J. Mooney—as +the ones who had planted the bomb. They had been assisted, he<span class="pagenum" id="Page_39">[Pg 39]</span> +said, by Israel Weinberg, a cab driver, Edward D. Nolan, the +President-elect of Machinists’ Lodge 68, and Mooney’s wife, Rena. +Swanson was evidently quite persuasive because Fickert immediately +put him on the payroll, and picked up Billings, Weinberg +and Nolan four days later. The Mooneys were on vacation in +Montesano, Washington, when they read that they were being +sought as suspects in the bomb case. After Mooney had wired +Chief of Police White that “this attempt to incriminate me in +connection with bomb outrage is one of the most dastardly pieces +of work ever attempted,” the couple took the first train back to +San Francisco. They were arrested on July 27th, by policemen +who boarded their coach at Guerneyville.</p> + +<p>This wasn’t the first time that Swanson had used Mooney’s +name in vain. Three years earlier, when the linemen of the +Pacific Gas & Electric Company in neighboring Contra Costa +County had gone on strike, the detective had been hired to find +out who was dynamiting the utility’s property. He had accused +Mooney, who was leading the strike, of possessing explosives, and +the union organizer was tried three times before he was eventually +acquitted. Swanson had been more successful with Billings +who was sentenced to two years at Folsom Penitentiary for carrying +dynamite.</p> + +<p>On June 10, 1916, Mooney, as a representative of the Amalgamated +Association of Street and Electric Railway Employees of +America, called an organization meeting of the carmen of the +United Railroads, San Francisco’s trolley lines, at Woodsman’s +Hall. Early the next morning, three of the carrier’s transmission +towers near San Bruno were slightly damaged by dynamite. +According to Weinberg and Billings, Swanson went all out to pin +this bombing on Mooney. On July 17th, he hailed Weinberg’s +taxi and offered the cabbie $5000.00 to swear that he had driven +Mooney to San Bruno after the meeting at Woodsman’s Hall. +When he repeated the offer two days later, Weinberg told him +that he had no information to sell.</p> + +<p>On July 18th, Swanson met Billings at the office of the Pacific +Gas & Electric Company, where the latter had gone to pay a bill. +The detective promised him a machinist’s job with the utility as +well as five thousand dollars if he would help connect Mooney +with the San Bruno explosion. Billings was as uncooperative as<span class="pagenum" id="Page_40">[Pg 40]</span> +Weinberg had been, and Swanson soon gave him up as a bad job. +He later admitted that he had spoken to both men about +Mooney’s part in the bombing of the transmission towers, but +denied that he had offered any money to either one.</p> + +<p>When Billings, Weinberg, Nolan and the Mooneys were +arrested, they were held incommunicado until the Grand Jury +met on the evening of August 1. Meanwhile, San Francisco was +staging mass meetings at which speaker after speaker urged that +all radicals, anarchists and liberals be run out of town. The Law +and Order Committee of the Chamber of Commerce raised more +than $400,000 for the avowed purpose of ridding the city of its +“anarchistic” elements. All of the newspapers embarked on an +orgy of speculation, openly inspired by the District Attorney’s +office, in which no effort was made to separate fact from fancy. As +far as the <i>Examiner</i>, the <i>Call</i>, the <i>Chronicle</i> and the <i>Bulletin</i> +were concerned, Fickert had an open-and-shut case against all the +suspects, and it made little difference what they printed under +their banner headlines.</p> + +<p>The first witness before the Grand Jury was Henry Kneese, the +City Marshal of South San Francisco, who said that he had found +a suitcase containing forty sticks of dynamite on the state highway +leading to San Bruno on June 10th. Apparently, Fickert +wasn’t above some titillating irrelevancies to soften up a jury. +Kneese was followed by Dr. David E. Stafford, the physician who +had performed the autopsies on Hetta Knapp and the seven other +persons killed in the July 22nd blast. Dr. Stafford stated that he +had removed small pieces of .22- and .32-caliber shells and particles +of iron pipe from their bodies. After Will George M. Hon, +the foreman of the Cadillac Garage, testified that, when Billings +was discharged from his mechanic’s job in June, he had owned a +brown suitcase, Captain Matheson and Lieutenant Bunner described +the scene at Steuart and Market Streets following the +blast</p> + +<p>Earl R. Moore, a policeman, was the first witness to place any +of the defendants on Market Street before the explosion. He had +been ordered to clear the parade route of all traffic. Shortly after +one p.m., he had noticed an old Ford jitney with a broken horn +and a torn rear cushion parked in front of 721 Market Street, a +two-story building directly across the street from the offices of the<span class="pagenum" id="Page_41">[Pg 41]</span> +Preparedness Day Parade Committee. While he was standing near +the automobile, waiting for its owner to show up, he had observed +a man loitering on the sidewalk a few feet away. When Moore +asked him if he knew who owned the vehicle, the man had answered, +“Oh, he’ll be here in a minute.” The policeman “went on +down toward 4th Street and I came back in about ten minutes +again and the machine was gone.” Four days later, he identified +Billings as the man who had spoken to him that afternoon.</p> + +<p>Herbert C. Wade, the principal of a Hawaiian school, had +been in no mood to watch the Preparedness Day Parade. Bothered +by a bad toothache, he had been heading for his dentist’s +office in 721 Market Street. As he walked toward the entrance to +the building, Billings passed him “and went up the steps into +the dental office. He had a suitcase or something of the sort with +him.” A few minutes later, the witness saw a man and woman +but he was unable to say that they had been Mr. and Mrs. +Mooney. “It was somewhere around one o’clock when I saw +Billings,” he told the jurors, “ten minutes to one or ten minutes +after.”</p> + +<p>The dentist’s receptionist, Estelle G. Smith, had been waiting +for the parade to start when Billings entered the office. He had a +suitcase in his hand and told her that he was a motion picture +cameraman for the <i>San Francisco Chronicle</i>. When he asked for +permission to photograph the parade from the roof, she told him +that he would have to wait until the dentist returned from lunch. +Because she thought he was “sick from the heat,” she had decided +to let him go up to the roof at once. She had asked a friend, +Louis Rominger to “Please show this man to the roof” while she +returned to the window to watch the parade, which had just +started. When Mayor Rolph passed by in the street below, she +had waved a towel at him and shouted, “Hello, Mayor Rolph!” +According to photographs taken by the International Film Company, +the Mayor had passed 721 Market Street at 1:50 P.M.</p> + +<p>At “half after one or so,” a tall “very repulsive looking man, +long mustache,” who looked like “a Russian Jew,” burst into the +dental office and attempted to push by Miss Smith who was standing +in front of the stairway. When she threatened to call the +police, a woman ran up the first-floor steps and persuaded the +man to leave the building. Five minutes later, a “very agitated”<span class="pagenum" id="Page_42">[Pg 42]</span> +Billings came down from the roof and, after thanking the receptionist +for her kindness, hurriedly departed. She was sure that the +woman had been Rena Mooney.</p> + +<p>Alice Kidwell, Miss Smith’s mother, had been seated at the +window in the dentist’s reception room when she saw the +Mooneys talking to two men on the sidewalk outside the building. +Mrs. Mooney left the group for a moment and, when she returned, +“I saw her with her hand waving it up this way, beckoning +to someone on the roof.” A few minutes later, the young man +who had been taking pictures on the roof left the building. Mrs. +Kidwell remembered saying, “Good gracious, he couldn’t have +taken very many because he was up there just a short time.” She +last saw the Mooneys walking west on Market Street.</p> + +<p>A tramp waiter by the name of John McDonald was the only +witness before the Grand Jury who testified to seeing both Mooney +and Billings at Steuart and Market Streets. He had been standing +on the east side of Steuart, some fifteen feet south of Market, +when he noticed a “young fellow coming down carrying a grip in +his hand.” Because the man appeared so nervous, McDonald kept +his eye on him as he walked down Steuart Street. Just before he +reached the corner, he “transferred the suitcase over to his left +hand and set it down near the wall.” Then, the young man +walked to a saloon at the comer of Steuart and Market where he +was joined by another man who had been inside. He identified +the youth who had been carrying the suitcase as Billings and the +man who had emerged from the bar as Mooney.</p> + +<p>McDonald watched the two men talk together for a few minutes +and then he saw Mooney take out a pocket watch and check +it with the clock in the Ferry Building tower. Seconds later, +Billings “took a cut right through the parade toward the other +side of Market Street as though he were going back to the Ferry +Building.” After waiting a few minutes, Mooney also crossed Market +Street “as though he was going across to Drum Street,” one +block west of the Embarcadero. By this time, the witness had lost +interest in both men and decided to walk up Market Street. He +had reached the Alameda Cafe, some 150 feet from where he had +been standing, when the explosion occurred.</p> + +<p>Mrs. Mooney, who was known professionally as Rena Herman, +had been teaching music in a fifth-floor studio in the Eilers<span class="pagenum" id="Page_43">[Pg 43]</span> +Building at 975 Market Street for almost eight years. On the day +of the parade, she had watched the spectacle from the roof of +her building with her husband and two relatives. When they +arrived on the roof, “the parade hadn’t started then. Everybody +was yelling it was starting. We hurried to get up there. We didn’t +leave the roof until after the parade passed.” Neither she nor +Tom had been at 721 Market Street on July 22nd; in fact, they +hadn’t left the Eilers Building until five o’clock that evening.</p> + +<p>Although Mooney, Billings and Nolan refused to testify because +they had not been permitted to talk to their lawyers, +Weinberg stated that “I am willing to answer every question you +wish to ask me.” He denied that his taxi had been parked in front +of 721 Market Street on the afternoon of the explosion or that +he had been in the vicinity of Steuart and Market around two +o’clock. Although he swore that his jitney was in perfect working +condition, he admitted that “the machine in the back is torn, the +thread.” At one p.m. on the 22nd, he was driving a passenger to +Fillmore and Sutter. Then he had gone to the office of the gas +company and paid his bill which was two months overdue. Because +the parade was disrupting all traffic, he had decided to call +it a day and go home. “I went to the butcher shop,” he said, “and +got some meat and went home about three or a little after three.” +He had remained home until “five or a little after.”</p> + +<p>When Mooney was arrested on the San Francisco train, the +police who searched him found the key to Nolan’s basement +apartment at 82 Angelica Street in his pocket. Officer Peter J. +Hughes, who had been a member of the squad which ransacked +the apartment, testified that he had found plaster of Paris, a box +containing saltpetre and another bag that contained what +“looked like black powder.” A motorcycle belonging to Mooney, +twenty pounds of epsom salts, a bag of flour, and a small quantity +of flashlight powder were also uncovered. According to Hughes, +“We asked him [Nolan] several times before we went down in +the basement if there was anything in the basement. He said +‘no.’”</p> + +<p>On August 2nd, the Grand Jury returned a true bill, charging +all five suspects with the murders of the eight people who had +been killed in the explosion. Fickert, whose first act after having +been elected District Attorney in 1909 had been to obtain the dismissal<span class="pagenum" id="Page_44">[Pg 44]</span> +of graft indictments against officers of the United Railroads, +looked forward to the Mooney trial with a relish that was +undisguisable. However, he decided that it might be more expedient +to try second offender Billings first and the latter’s trial +began on September 11, 1916, in the Superior Court of San +Francisco, before Judge Frank H. Dunne.</p> + +<p>The prosecution called most of the witnesses who had testified +before the Grand Jury. McDonald repeated his story of seeing +Billings at Steuart and Market just before the explosion. “As +near as I can remember it must have been eight or ten minutes +to two when I first discovered him.” After describing the meeting +of Billings and Mooney in front of the saloon, the witness said +that he “went down to the restaurant on the Embarcadero, 34 +was the number, and got a glass of buttermilk.” It was while he +was there and not, as he had told the Grand Jury, in front of the +Alameda Cafe, that the explosion took place. Also, he now said +that he had lost both men in the crowd after their meeting at the +corner of Market and Steuart.</p> + +<p>Fickert had found a new witness to support McDonald’s story. +John M. Crowley was an automobile mechanic who worked on +the corner of Steuart and Mission. He was positive that he had +seen Billings at 1:55, “standing about three feet from where I +was.” He saw him again at the same place immediately after the +explosion and he remembered that the defendant had refused to +take off his hat when the band was playing “The Colors.” But he +was certain that Billings had not been carrying anything in his +hands at either time.</p> + +<p>Estelle Smith and Herbert Wade swore that they had seen +Billings at 721 Market Street at approximately one p.m. on July +22nd. Peter Vidovich, an eccentric patient who had decided not +to wait for the tardy dentist, was just descending the steps to the +street when he saw Billings struggling up the narrow stairway +with a suitcase. “I backed up and stood behind the banister on +the top of the stairway and give him a chance to come up.” The +suitcase was, he remembered, “kind of pale color like, rather +deeper that the ordinary suitcase ... pale color of chocolate or +wine color. It was a kind of funny suitcase, it was kind of +different.”</p> + +<p>Mellie Edeau and her daughter, Sadie, had come from Oakland<span class="pagenum" id="Page_45">[Pg 45]</span> +to see the parade. Although neither woman had been called +before the Grand Jury, they both swore that they had seen +Billings on the roof of 721 Market Street. Shortly before one p.m., +they had been standing in front of the Kamm Building which +was next door to 721. Sadie Edeau testified that “when I first saw +Billings he was on the roof of 721 Market, leaning over the edge +of the building. He had a suitcase in his hand.” Her mother said +she had noticed him “on top of the roof ... with a suitcase and +he was talking to someone on the street below him.”</p> + +<p>According to four employees of Uhl Brothers, there had been +a cameraman with a suitcase on the roof of 721 Market Street on +Parade Day. Alphonse De Caccia had seen a young man with “a +kodak, a kodak grip—a black grip about two feet long and a foot +wide” sitting in a corner. This man, he said, had been there when +DeCaccia left “about 4:15.” Tracy F. Barrett had observed a “man +sitting in the west corner [with a] camera very similar to a newspaper +reporter’s camera,” while William B. Crump was sure that +this man was still there at “about ten minutes after two” when +the witness left the roof. Henry Pincus had seen a man “sitting on +the firewall” when he arrived on the roof just as Crump was +leaving.</p> + +<p>On the day of the blast, Billings had left his house at 1:30 p.m. +As he headed for Market and Kearney, he had noticed “a large +battleship gray Hudson automobile” on Union Square Avenue. +He ended up at Market and Sixth where he “bought an extra +with an account of the explosion.” Then he had helped a friend +of his who was running a jitney bus between the Ferry and uptown. +At no time during the day had he been “at Steuart and +Market or 721 Market. I didn’t see Mrs. Kidwell, Estelle Smith, +or Rominger, and I had no suitcase.”</p> + +<p>On September 23rd, the young machinist was convicted of murder +in the first degree, but the jury fixed his punishment at life +imprisonment. Now, with Billings on his way back to Folsom, +Fickert could concentrate on the man whom he had once described +as “a direct action anarchist.” On January 3, 1917, +Mooney’s trial began before Judge Franklin A. Griffin and twelve +Bay area citizens. Fickert, who had let one of his assistants handle +the Billings prosecution, had had enough of the sidelines and +showed up with Edward A. Cunha and James M. Brennan, two<span class="pagenum" id="Page_46">[Pg 46]</span> +stalwarts from his office. Mooney was defended by W. Bourke +Cockran, Maxwell McNutt and John Lawlor. It took two weeks +to select a jury from the 177 talesman who were called and sworn +and it was not until January 18th that Ed Cunha was able to +begin the state’s campaign to convince Foreman William V. +MacNevin and his eleven San Francisco County colleagues that +the bombing had been the opening gambit in a Wobbly-inspired +campaign to overthrow the State of California.</p> + +<p>After six physicians had testified to the wounds and causes of +death, Fickert called a whole battery of witnesses who described +the cartridges, pieces of metal, ball-bearings and bits of imitation +leather that were scattered all over the area after the explosion. +Then Frederick H. Colburn, Captain Matheson and Lieutenant +Bunner were put through their paces as to what they had seen +and done after the blast. With these preliminaries behind him, +Fickert finally got around to his star witness, talkative John +McDonald, who had already told the Grand Jury and the Billings +panel that he had seen Mooney and Billings at the corner of +Market and Steuart Streets just before the bomb went off.</p> + +<p>McDonald had been found wandering around the Hall of +Justice two days after the explosion, claiming that he had seen +the men who planted the lethal suitcase. Prior to his sudden +prominence, he had been a waiter at a number of cheap San +Francisco restaurants. Just a week before the parade, he had been +released from the hospital where he had spent several months +recuperating from a serious stomach operation. The doctors had +told him that he would not be able to work for some time and +he had just about run through his meager savings when he +walked into Fickert’s office with his story. By July 24th, rewards +totalling more than $14,000.00 had been reported by the <i>Chronicle</i> +“for the arrest and conviction of the criminals who perpetrated +the bomb outrage on Saturday.”</p> + +<p>It had been “about 1:40” when the witness arrived at the corner +of Steuart and Market. He had gone to Steuart Street “because +I thought there would not be such a crowd there.” After +watching the parade for a few minutes, he had “moved up ten or +fifteen feet on Steuart.” When he first saw Billings, the machinist +was coming down Steuart Street from the direction of Mission +Street. He had had a suitcase in his hand.</p> + +<p><span class="pagenum" id="Page_47">[Pg 47]</span></p> + +<div class="blockquot"> + +<p>Q. Would you describe more in detail to the jury his actions +when you saw him coming walking along Steuart Street +with a suitcase?</p> + +<p>A. Well, he was carrying the suitcase, and his head was working +on a pivot, and he looked all excited as if he was +worrying about something. That is what called my attention +to him first.</p> + +<p>Q. You at that time then noticed the cellar doors, the iron +doors there?</p> + +<p>A. Yes.</p> + +<p>Q. Did he put the suitcase down before he got to the iron +doors or afterwards?</p> + +<p>A. No, before he got to the iron doors.</p> + +<p>Q. He put it against the wall?</p> + +<p>A. Let it down by the side of the wall.</p> +</div> + +<p>Then he had watched Billings walk to the saloon at the corner +of Steuart and Market where, just as he pushed the swinging +door open, “right on the second, that man there, Mooney, he +came out of the saloon.” As the two men were talking, Mooney +kept checking his watch with the clock on the Ferry Building on +the Embarcadero Plaza. When the brief conversation ended, +Billings “started out in the crowd and I lost sight of him and my +attention was drawn to this other man.”</p> + +<div class="blockquot"> + +<p>Q. Thomas J. Mooney?</p> + +<p>A. Yes.</p> + +<p>Q. What did he do?</p> + +<p>A. He took his watch out again and looked down toward the +dock in the Ferry building and after he put his watch back +in his pocket he drew his shoulders up and put his hand +to his face like he was studying and looked alongside the +building.</p> + +<p>Q. What did he do?</p> + +<p>A. He turned around and went through the crowd and I lost +sight of him.</p> +</div> + +<p>McDonald described the suitcase as being “kind of jersey, +brownish color,” nineteen inches long, fourteen inches deep and +seven inches thick. He was “just as positive as I am sitting in this +chair” that Billings and Mooney were the men he had watched +that July day. As far as the time was concerned, he thought that<span class="pagenum" id="Page_48">[Pg 48]</span> +he had seen Billings walking up Steuart Street “about five minutes” +after he himself had arrived at the corner at 1:40.</p> + +<p>Cockran, who had been thumbing through the transcript of +McDonald’s testimony at the Billings trial, could hardly wait for +Cunha to finish with the witness. He didn’t waste any time getting +down to bedrock.</p> + +<div class="blockquot"> + +<p>Q. Didn’t you say at the Billings trial that when you saw +Billings place that suitcase there it was about two o’clock?</p> + +<p>A. Yes, but Mr. Cockran—</p> + +<p>Q. Explain your answer. I understood you to say at the last +trial ... it was two o’clock, and now you want to add +something to your testimony. Am I right?</p> + +<p>A. I know that is also the way I also testified in Judge—</p> + +<p>Q. Can’t you answer that? Did you say at the last trial it was +two o’clock when you saw Billings place that suitcase near +those trap doors?</p> + +<p>A. Yes, but I also said in Judge Dunne’s court it was eight or +ten minutes of two when Billings came at the time with +the suitcase.</p> + +<p>Q. You repeat now it was eight to ten minutes of two and it +wasn’t two o’clock when he put it down?</p> + +<p>A. No, sir, I don’t say it was two o’clock when he put it down.</p> + +<p>Q. You said it then, didn’t you?</p> + +<p>A. Yes.</p> +</div> + +<p>After Cockran had brought out that it would have been difficult +for McDonald, who was standing more than one hundred +feet away, to see the five-foot-four Billings through the crowd, +the defense attorney came back to the all-important time element.</p> + +<div class="blockquot"> + +<p>Q. Wasn’t the parade between you and Billings?</p> + +<p>A. They were standing 50 feet off or more on Steuart Street.</p> + +<p>Q. They were on the move at the time?</p> + +<p>A. No, sir.</p> + +<p>Q. Do you mean to say they were not moving at two?</p> + +<p>A. I wasn’t there at two.</p> + +<p>Q. Where were you at two?</p> + +<p>A. Down towards the Alameda Cafe on Market Street or close +to it.</p> + +<p>Q. Then you were not there looking at him place it there at +about two o’clock?</p> +<p><span class="pagenum" id="Page_49">[Pg 49]</span></p> +<p>A. I mean about as near as I can tell to two o’clock.</p> + +<p>Q. You don’t want to qualify it now?</p> + +<p>A. I don’t change it.</p> +</div> + +<p>In his testimony before the Grand Jury, McDonald had said +that, after losing sight of Mooney, he had “started down Market +Street and I got as far as the Alameda Cafe when the explosion +occurred.” He had repeated this statement, almost word for word, +at the Billings trial. Cockran decided to put the question to him +once more.</p> + +<div class="blockquot"> + +<p>Q. How far did you get when the explosion occurred?</p> + +<p>A. Well, I had been standing down in front of the Alameda +Cafe looking at the parade go by, and the parade had gone +by, and I still stood there awhile and I seen the people +pushing up toward Steuart and Market and I thought they +were, that it was the units coming out of Steuart Street, +and I was standing in front of the Alameda Cafe when the +explosion occurred. When I did hear the report, I thought +it was a signal for the units to come out of Steuart Street.</p> +</div> + +<p>If McDonald could be believed (and it was obvious that +Cockran was not prepared to accept this thesis), he had walked +some 150 feet up Market Street after watching the Mooney-Billings +tableau before he heard the blast. Since he had testified +that he had first seen Billings at “eight or ten minutes to two,” +some “25 to 50 feet” away from the corner, that the machinist +had placed the suitcase against the building wall “about two +o’clock,” and that he himself had started up Market Street in the +direction of the cafe before two, it had taken him more than six +minutes to cover the half-block. But the witness had an answer +for this: “... when I started down Market I just took my time +and walked along slowly. I didn’t walk any faster than a snail +crawls almost. It took me a little time to get down to the coffee +house.” Didn’t Mr. Cockran realize that he was still a very weak +man?</p> + +<p>McDonald was followed on the stand by Frank C. Oxman, a +cattle dealer from Durkee, Oregon, who had replaced the syphilitic, +wife-beating Crowley as a corroborative witness. It seems that +he, too, had been on the corner of Market and Steuart Streets +just before the explosion. He had pulled into town from Portland<span class="pagenum" id="Page_50">[Pg 50]</span> +“between 12 and 1 o’clock,” and checked into the Terminal +Hotel which was directly across Market Street from the Alameda +Cafe. Then “I went to two or three restaurants and they were +crowded and I couldn’t get a seat and I went over and bought +some fruit and was at the corner of the street and was expecting +to cross the street when the automobile drove up.”</p> + +<div class="blockquot"> + +<p>Q. Where did it come from?</p> + +<p>A. I call it down Market Street. It was going toward the +Ferry Building.</p> + +<p>Q. What was it attracted your attention to that machine?</p> + +<p>A. This defendant was in the front seat holding a suitcase +on the outside with his hands, on the running board.</p> + +<p>Q. The defendant on trial, Thomas J. Mooney?</p> + +<p>A. Yes.</p> +</div> + +<p>He described the car as “an old Ford” and identified Israel +Weinberg as its driver. He had seen Mrs. Mooney and Billings, +whom he depicted as “the little auburn-haired boy,” in the vehicle’s +rear seat. When Weinberg stopped the car near the saloon at +the corner of Market and Steuart, “the little auburn-haired boy +jumped out of the hind seat, very excitedly and very rapidly, and +took the suitcase from the other gentleman that was holding it +on the front of the machine.” Another man, who had been sitting +in the Ford’s back seat, a man who “had a stubby mustache and +looked like a working man,” got out of the car and relieved +Billings of the suitcase. Then the two men had walked rapidly +down Steuart Street just beyond some metal cellar stairs where +Billings “took the suitcase from the other man and ... set it +down by some doors.”</p> + +<p>While all this was going on, Mooney had left the car and was +standing on the curb, “right out near where I was,” watching +Billings and his mustached companion walk down Steuart Street.</p> + +<div class="blockquot"> + +<p>Q. Then what happened?</p> + +<p>A. Then they came on back where Mr. Mooney was standing +near the post and seemed to be looking for somebody, I +don’t know—I think they went in the door of the building +there, I won’t be sure whether all of them or not, and +directly came out.</p> +</div> + +<p>Oxman was near enough to hear Mooney tell Billings, “Give it to<span class="pagenum" id="Page_51">[Pg 51]</span> +him and let him go; we must get away from here; the bulls will +be after us.” The latter then handed something “to the other +gentleman that carried the suitcase part of the way.”</p> + +<div class="blockquot"> + +<p>Q. What happened?</p> + +<p>A. He went across the street ... the other gentleman, I don’t +know who he was.</p> +</div> + +<p>After another brief conversation between Mooney and Billings, +the machinist “went first toward the car and Mr. Mooney looked +at his watch and looked at his watch and looked at the tower +clock also at the same time. He glanced over to where the suitcase +was after Mr. Billings left him and then he proceeded to go to +the car also.” When he last saw the Ford, it had “turned into +Steuart and went up Steuart.”</p> + +<p>Oxman was certain that all of this had taken place at least +twenty minutes before the explosion because he had returned to +the hotel to wait for a telephone call.</p> + +<div class="blockquot"> + +<p>Q. Now, when you got over to the hotel, did you notice anything +about the time?</p> + +<p>A. Yes.</p> + +<p>Q. What would you say the time was when you arrived there?</p> + +<p>A. It was 15 minutes to two o’clock.</p> + +<p>Q. Around fifteen minutes to two?</p> + +<p>A. Yes, because my telephone call was at two o’clock.</p> +</div> + +<p>When Cockran took over, he wanted to know why Oxman had +been so intensely interested in three men and a suitcase with a +mammoth parade going by right under his nose. The witness had +a ready answer to this oblique reflection on his credibility. “I +thought these people were a set of thieves,” he said. “I took more +than one glance at them. I thought they had stolen this suitcase +and were caching it out, that was the reason I took close observation +of them.” Besides, despite the fact that the cattleman +weighed two hundred pounds, “Billings pushed me out of the +way so he could go past.” A fat man would remember a thing +like that.</p> + +<p>Why hadn’t he reported the incident to the police when “he +had noticed a mounted policeman there very close just before +that?” He didn’t want to become involved. “Although I thought +these men were thieves, I didn’t call a policeman, I didn’t look +for one.” But he did jot down the license number of the Ford<span class="pagenum" id="Page_52">[Pg 52]</span> +jitney—No. 5187—on the back of a Western Union envelope with +the notation, “Think stolen grip. S. F. July 22.”</p> + +<p>Thirteen-year-old Jimmy McDougall had been a flag boy with +the First California Volunteers that afternoon. His unit formed +in Steuart Street and had just turned the corner into Market +Street when the bomb exploded. While he was waiting for the +Volunteers to join the parade, Jimmy remembered seeing a light-brown +leather suitcase “sitting where the hole was afterwards.” +He had first seen the suitcase, which was about fifty-one inches +long, ten inches wide, and a little more than fourteen inches high, +“about ten minutes before I started to march.” But he hadn’t +noticed any of the defendants in the area.</p> + +<p>Before turning to les dames Edeau, Fickert called Detective +John A. Dolan who had “arrived at the scene of the explosion +about five minutes after it.” Like the other gendarmes who had +preceded him on the stand, he described the positions of the +bodies, the condition of the sidewalk, and the various pieces of +metal that littered the area. When Fickert turned the witness +over to him, Cockran saw a neat opportunity to put a small spike +in Oxman’s story. He asked Dolan whether he had noticed any +cars on Market Street after the parade had started. The detective, +who had been assigned to look out for pickpockets on the sidewalks, +said that he had seen no automobiles along the line of +march and that he knew there was a general order excluding +them from the area.</p> + +<p>Sadie Edeau and her mother had both testified in the Billings +trial. Although the two women swore that they had observed +Billings on the roof of 721 Market Street, neither one had mentioned +seeing any of the other defendants. Now Miss Edeau said +that, shortly after witnessing Billings on the roof, “I saw Thomas +J. Mooney and Mrs. Mooney ... coming down from the way of +721 Market Street.” When Billings came out of 721, she had +watched him talking to Patrolman Moore. “I next saw Billings +meet Mooney in the center of the sidewalk a little past the entrance +to the Kamm Building a little further out on Market +Street.” When she last saw the trio, they “all started down to the +Ferry.” A few minutes earlier, she had seen Weinberg enter a +“five-seated Ford” which had been parked on Market Street, facing<span class="pagenum" id="Page_53">[Pg 53]</span> +downtown, and “drive down toward Third Street.” All of this +had occurred “between half past one and twenty minutes to two.”</p> + +<p>Cockran was beside himself when he took the witness over.</p> + +<div class="blockquot"> + +<p>Q. Now, Miss Edeau, will you tell us why you didn’t mention +Mr. Mooney and Mrs. Mooney and Israel Weinberg and +the Kamm Building and that automobile ... at any time +during the trial of the Billings case?</p> + +<p>A. Yes, I was never asked anything about them on the witness +chair.</p> + +<p>Q. Were you asked what you saw that day?</p> + +<p>A. I was only asked what I saw Billings do.</p> +</div> + +<p>In fact, she hadn’t even told Draper H. Hand, the detective who +had interviewed her in Fickert’s office before the Billings trial, all +that she had seen because she “wanted to stay out of the affair.” +But she insisted that she had revealed to him “about seeing the +jitney and seeing the officer honk that horn.”</p> + +<p>However, there was someone in whom Miss Edeau had confided +before going to the police. She had spoken to Professor H. C. +Migram, an elder in her church. But, while she had told him +“more than I told Mr. Hand,” she was obviously not a lady who +liked to reveal all at one sitting.</p> + +<div class="blockquot"> + +<p>Q. Did you tell him everything you saw?</p> + +<p>A. I didn’t tell him everything we saw.</p> + +<p>Q. He told you to come over to the District Attorney and tell +him everything you saw?</p> + +<p>A. Certainly.</p> + +<p>Q. And as I understand you, you didn’t tell him everything +you saw, some of it you reserved until today?</p> + +<p>A. Yes.</p> + +<p>Q. Why didn’t you?</p> + +<p>A. Because I didn’t feel like doing it.</p> + +<p>Q. You didn’t feel like telling the whole truth?</p> + +<p>You wanted to tell as much as you wanted?</p> + +<p>A. The reason why I didn’t tell it was because I didn’t want +to get into it.</p> + +<p>Q. But you were in it!</p> + +<p>A. We need not have gotten into it if we didn’t want to be +truthful.</p> +<p><span class="pagenum" id="Page_54">[Pg 54]</span></p> +<p>Q. But the elder advised you to go and tell the District Attorney +everything you know?</p> + +<p>A. Yes.</p> + +<p>Q. And you went over and didn’t tell him all that you knew?</p> + +<p>A. I think we did.</p> +</div> + +<p>Cockran was muttering to himself when he sat down.</p> + +<p>Mellie Edeau not only vigorously confirmed her daughter’s +version, but insisted that they neither knew of any reward nor +were “after the reward.” “Such a thing as that would not appeal +to me,” she told Cockran. After Patrolman Moore, Peter Vidovich +and Herbert C. Wade had repeated the testimony they had +given in the Billings trial, Fickert called T. K. Stateler, a Civil +War veteran who, like young Jimmy McDougall, had also seen +“a suitcase at the place where I afterwards saw the indentation on +the sidewalk.” Stateler, who didn’t have the stamina he had had +at Gettysburg, had tired on his walk from his office to his unit’s +assembly point in Steuart Street. “I looked for something to sit +down on,” he said, “and I saw the suitcase. It was in the shade +and it occurred to me to sit on it.” But a solid belief in private +property had won out and he had decided to rest his G. A. R. +bones on a nearby fence instead. As for the suitcase, “it looked +like an old one, dark tan I should say.”</p> + +<p>Fickert closed out his case with a lecture on the detonation of +dynamite by Arthur H. Crane, an explosives expert, and the +testimony of the officers who had arrested Billings and Weinberg. +Lieutenant Bunner had picked up Billings at the Lane Hospital +on July 26th. Later that day, he had searched the suspect’s home +at 2410 Mission Street where he had uncovered a can of .22-caliber +cartridges, a loaded .32-caliber pistol, a .22-caliber rifle, and +ten ball bearings. Detective Hand had apprehended Weinberg +in the famous Ford jitney that same day at the corner of Golden +Gate Avenue and Market Street. Sergeant William R. Proll, accompanied +by two policemen and the ubiquitous Martin Swanson, +had ransacked the Mooney studio in the Eilers Building on +July 26th. They had found “fifteen .32-caliber cartridges ... also +three steel-jacketed bullets ... nine .38-caliber cartridges,” as +well as an Iver Johnson pistol. On Tuesday, January 30th, twelve +days after Cunha had arisen to address the newly impanelled<span class="pagenum" id="Page_55">[Pg 55]</span> +jury, he informed Judge Griffin that “the State rests, your +Honor.” Now it was Mooney’s turn.</p> + +<p>Fickert’s case depended on convincing the jury that the cause +of the blast was a time-bomb concealed in a suitcase which +Mooney and Billings had planted at Steuart and Market Streets. +Yet, there were witnesses who had seen an object falling from a +roof just before the explosion occurred. Dr. Mora J. Moss, a +physician who was marching with the Sons of the American +Revolution, happened to look toward a building on the southwest +corner and “saw a black object falling through the air.” +When he noticed it, it was between twelve and fifteen inches from +the ground. “It disappeared,” he testified, “behind the people +standing on the sidewalk and a violent explosion immediately +followed.” At the time, he was sure that it was a signal bomb to +start the parade and had been dropped from the Ferry Building.</p> + +<p>Fannie Dahl, Charles F. Hollfender, Louis Eris, and Maud +Masterson, all of whom had been standing in the crowd on +Market Street, also had seen “a dark object” flashing by. Dr. +Moss had described it as “a foot to fourteen inches in length and +three and a half to four inches in diameter.” Eris thought that “it +seemed to be cylindrical in shape and about a foot across.” To +Mrs. Masterson it resembled “an object like a balloon falling.” +Janice Compton, who had a sixth-floor room in the Terminal +Hotel, had been watching the parade from her window when +she “saw a man crawl along the cornice of the building then +being demolished just east of the saloon, walk across the roof of +the southwest corner building and lean over the cornice and return, +and in a second the explosion occurred.”</p> + +<p>Thomas U. Doidge, who worked for the Fine Arts Engraving +Company, said that he had been standing near the trolley pole in +front of 721 Market Street, waiting for the parade. After the +street had been cleared of all traffic, a car drove up and parked +so close to him that he had to step aside so that its driver could +get out. A few minutes later, Patrolman Moore had walked over +and asked Doidge, “Is this your car?” When the witness answered, +“No, sir, the driver has gone in the building here,” Moore “took +hold of the horn and honked four or five times.” Shortly after the +policeman had continued on his beat, the driver came out of 721,<span class="pagenum" id="Page_56">[Pg 56]</span> +entered his car and turned left into O’Farrell Street. Doidge had +not noticed any “suitcase or anything else in his hand.”</p> + +<p>On the afternoon of July 22nd, Wade Hamilton, an employee +of the Eilers Music Company, had been photographing the parade +with a small Brownie folding camera from the roof of 925 +Market Street. Four of his pictures were taken from the rear of +the roof and, when he developed them, he noticed that the +Mooneys were included in a group of persons standing within +camera range. A large jeweler’s clock on the opposite sidewalk +also showed up in the photographs. When the defense attorneys +asked Hamilton to let them see prints of the films, he refused and +immediately turned them over to Fickert. At the Billings trial, +blurred prints, which failed to show the clock in the background, +were furnished to the defense and introduced in evidence.</p> + +<p>Now, Maxwell McNutt, who had taken over for Cockran, was +determined to force the prosecution to come across with Hamilton’s +negatives. He asked Griffin to order the Police Department +to “produce the films referred to by this witness.” Cunha gave +him a bit of a fight.</p> + +<div class="blockquot"> + +<p>MR. CUNHA: I believe they are in the possession of Mr. +Blum, the police photographer.</p> + +<p>MR. McNUTT: We will ask that they be brought here before +the witness leaves the stand.</p> + +<p>THE COURT: Yes, send for them.</p> + +<p>MR. CUNHA: It is Mr. McNutt’s business not ours, to send +for them.</p> + +<p>MR. McNUTT: I have no control over Mr. Blum. Go and get +Mr. Blum and tell him to deliver the films which were +delivered to him a week after the day of the Preparedness +Day Parade.</p> +</div> + +<p>Cunha, after reminding McNutt that he “had copies of those at +the last trial,” gave in meekly. When the films were brought into +the courtroom, Hamilton identified them as those he had taken +on July 22nd.</p> + +<p>Theodore Kytka, a photography expert for the United States +Government, had made enlargements of Hamilton’s pictures. +They clearly showed that the Mooneys had been on the Eilers +Building roof at 2:01 p.m. and 2:04 p.m. on the day of the parade. +Since the Eilers Building was more than a mile away from the<span class="pagenum" id="Page_57">[Pg 57]</span> +corner of Market and Steuart, it was difficult to see how Mooney +could have been in two places at approximately the same time +unless one was prepared to accept a theory later advanced by +Mrs. Edeau that a person’s “astral” and “physical” bodies can be +separated at will.</p> + +<p>John C. Lawlor, another Eilers Music Company employee, had +gone to the roof with his wife “about a quarter to two, ten minutes +to two, something like that.” He had seen Rena Mooney +there “about ten minutes to two.” However, in the Billings trial, +he had testified that “I first went up about ten minutes to two +and that I remained there about ten minutes and started to go +down the street and had an engagement and met Mrs. Mooney +coming on the roof alone.” His wife, Gertrude, remembered that +Mooney had also been on the roof “but I can’t say what time it +was.” Mr. and Mrs. Mario Cresafulli had seen the couple there +at 1:50 p.m. as had Mrs. Julia de Lorenzo.</p> + +<p>Before the Mooneys had gone to the roof, they had been in +their fifth-floor studio-apartment. Benjamin Kirsch, who had his +tailor shop in Room 503 of the Eilers Building, had seen Rena +Mooney “going down to the mezzanine floor with a sheet of music +in her hand” between one and 1:30 p.m. Harry Rosenblatt, Mrs. +Kirsch’s brother, arrived at the shop “between one and half past” +and met the Mooneys there as did Sam Green, a family friend. +Nicholas Hugh Treanor went to Mrs. Mooney’s studio on the +morning of July 22nd and did not leave until 12:30. Rebecca +Cutler, a violin pupil, said that she had come for a lesson that +morning but that she couldn’t remember “what time of day it +was.”</p> + +<p>Rena Mooney testified that she had seen three of her pupils on +the morning of the parade. Camille Leger had arrived first, only +to announce that “she would rather not take her lesson that +week because she had been on vacation and had not practiced.” +Mrs. Mooney told the girl not to give it a second thought since +the cancellation “was just as well for me as I was going on a +vacation myself.” She had decided to purchase some underwear at +Schwartz & Goodman’s on Fifth Street and the girl accompanied +her to the elevator. While she was out, Rena stopped in the +Clarion and bought a shirt and a tie for her husband.</p> + +<p>After Rebecca Cutler’s violin lesson, the Mooneys decided to<span class="pagenum" id="Page_58">[Pg 58]</span> +go up to the roof to see the parade because a huge flag on the +front of the building had blocked all their windows. Martha +Timberlake, Mrs. Mooney’s cousin, and Belle Hammersburg, her +sister, went to the roof with the couple and stayed there until the +parade ended. Hilbert Roberts, a fourteen-year-old pupil of Mrs. +Mooney’s, “saw her on Parade Day on top of the Eilers Building +while the parade was going on,” but didn’t know what time it +had been.</p> + +<p>When Mooney took the stand, he confirmed his wife’s account +of their activities on July 22nd. He had left the apartment for +breakfast at Hoffman’s Restaurant at 9:30 that morning and returned +an hour later. He recalled that Rebecca Cutler had left +his wife’s studio “in the neighborhood of 1 or 1:15.” A few minutes +later, Mrs. Hammersburg and Mrs. Timberlake arrived and, +at approximately 1:30, the quartet went up to the roof. “We did +not leave the roof,” he testified, “until the last section had +passed.” Like his wife, he denied being either at Steuart and +Market Streets or 721 Market Street at any time during the day.</p> + +<p>Israel Weinberg, a Russian-born ex-journeyman carpenter who +had turned to hacking early in 1915, had met Mrs. Mooney when +a Mrs. Strager (his wife remembered the name as Trager) recommended +her as a music teacher for his son. Until he was arrested, +he had never met Nolan or Billings. At 2:05 on July 22nd, he had +been paying a bill at the gas company office on Grant Avenue. +Then, after buying some chops and a loaf of bread, he went home +and had his lunch. At 4:45, he had driven to the Ferry and “kept +working until ten o’clock that night.” When it came to denials, +he was just as definite as the Mooneys. “I did not drive a jitney +on parade day up to 721 Market Street or to Steuart and Market +or carry as passengers Mooney, Billings, Mrs. Mooney and a man +with a stubby mustache.”</p> + +<p>Weinberg insisted that he had picked up two men at 29th and +Valencia who ordered him to take them to the 12:20 Ferry. +Although he told them that “I guess I can make it,” he had arrived +five minutes too late. Then, the cabbie picked up two more passengers +on E Street who were destined for Fillmore and Sutter. +When the cab reached Golden Gate Avenue and Jones Street, +Weinberg said, “I saw a jitney driver I know, Simon Statler.” +Later a Simon L. Sutter testified that “I saw Israel Weinberg<span class="pagenum" id="Page_59">[Pg 59]</span> +driving around Golden Gate Avenue and Jones St. between 12:30 +and around 1 p.m. or probably a little after. I don’t know the +exact time. It was in the early afternoon.” Esther Caplan, who +ran a misfit clothing store at 1269 Golden Gate Avenue, had seen +Weinberg “between half past one and two on Saturday” when he +had stopped in for a few minutes to read her a letter from his +wife, who had gone east for the summer. David J. Smith, an old +friend, had met him on Golden Gate between Webster and Fillmore +“about a quarter to two.” Weinberg was on the sidewalk, +walking toward his cab, when Smith, who was accompanied by +Leon Carasso, a life insurance agent, had hailed him.</p> + +<p>On February 9, 1917, the jury returned a verdict, finding +Mooney guilty of murder in the first degree. Cockran immediately +moved for a new trial on the ground that the verdict was +against the weight of the evidence, but Judge Griffin decided to +let things stand as they were. On February 24th, he sentenced the +defendant to be “hanged by the neck until you be dead.” If this +wasn’t the end of the road for the thirty-year-old ex-moulder, it +was as reasonable and uncomfortable a facsimile as a union man +could ask for.</p> + +<p>But there was more to come. On April 11th, the <i>San Francisco +Bulletin</i> published photostatic reproductions of a series of letters +between Oxman and one F. E. Rigall, the proprietor of a pool +hall in Grayville, Illinois. In the early morning hours of December +14, 1916, the Oregon cattle dealer had written an urgent—and +misspelled—note on the stationery of the Hotel Terminal to +his old friend, urging him to “cum to San Frisco as a expurt +witness in a very important case.” He promised him “mileage and +all that a witness can draw probly 100 in the clear.” Oxman +closed with the plaintive plea that “I need a witness.” Two days +later, Rigall wired: “Will come. Wire transportation and expenses.”</p> + +<p>Oxman answered him at once. “Your Telegram Received,” he +wrote, “I will wire you Transportation in Plenty of time.” But +there was one condition. “You will only hafto say you saw me +on July 22 in San Frisco and that will be easey dun.” In the +meantime, he advised his friend that “the silent Road is the one +and say nothing to any Body the fewer People no it the Better.” +On Christmas day, Oxman informed Rigall’s mother that he was<span class="pagenum" id="Page_60">[Pg 60]</span> +“sending Ed transportation tomorrow.” Perhaps, he would be +able to use her, too, as “a Extry witness” might come in very +handy.</p> + +<p>Rigall arrived in San Francisco on January 6, 1917, and registered +at the Terminal Hotel as “L. O. Charles.” He was given +Room 437. Four days later, the register was changed to show that +487 was now occupied by an “F. E. Rigall, Evansville.” On January +17th, at the request of “Mr. C. M. Fickert,” a card was issued +to an “F. E. Rigall” by the Olympic Club of San Francisco, extending +to him “the privileges of the club for a period of two +weeks.” Apparently, nothing was too good for “a Extry witness.”</p> + +<p>But Rigall was destined never to see action in the Mooney +trial for the simple reason that he had never been in San Francisco +before in his life. On February 12, 1917, three days after +Mooney’s conviction, he sent Cunha a congratulatory wire but +warned him that “my evidence will get party new trial.” The +Assistant District Attorney replied by return telegram that he was +“astonished at your suggestion that you have testimony to help +defendant,” and exhorted Rigall to “wire me collect all details +at once.” There was no answer from Grayville.</p> + +<p>On February 13th, Charlotte La Posee gave the defense attorneys +an affidavit in which she swore that she had seen Oxman +watching the parade near the entrance to the Phelan Building, +more than a mile from Steuart and Market, at the exact time +when, according to his testimony, he had observed Mooney and +Billings planting the lethal suitcase. According to the <i>Examiner</i>, +Fickert was “undisturbed” at this revelation because “John +Regal, an Oregon business man, was a companion of Oxman the +day of the Preparedness Parade and could corroborate the testimony +of the cattle man.” The reason “Regal” hadn’t been called +at the trial was “because of domestic difficulties.”</p> + +<p>Rigall got around to putting his story in writing on April 22nd +when he signed an affidavit in which he claimed that Oxman, +with Fickert’s help, had tried to get him to say that he had seen +Mooney at the corner of Market and Steuart on Parade Day. For +this, he was to receive $250.00 from Oxman and a liberal share of +the reward money. But his conscience had gotten the better of +him and he had left San Francisco on January 26, 1917, without +testifying. When he returned home to Grayville, he had told the<span class="pagenum" id="Page_61">[Pg 61]</span> +story to Mayor Claude O. Ellis, who had persuaded him to +return to California and prevent “the God damndest frame-up +that you ever heard of.”</p> + +<p>Six days earlier, Estelle Smith, the dental assistant who had +testified that Billings and his famous suitcase had been on the +roof of 721 Market Street on the day of the explosion, had admitted +that Oxman had tried to bribe her to identify Weinberg as +well. “Wouldn’t you testify,” he had asked her, “that you saw him +for a check in four or five figures?” To her question, “Who sent +you to me, Fickert?,” he had replied, “No, not Fickert, but men +higher up than Fickert.” When she had told the District Attorney +of this offer, she was informed that the cattleman was “a +queer old duck.”</p> + +<p>On April 30, 1917, Oxman was indicted for subornation of +perjury. One month later, Rena Mooney was brought to trial and +acquitted on July 25th. Fickert managed to keep her in jail on +the other seven indictments until March 30, 1918 when she was +released in five thousand dollars bail. On November 27th, Weinberg +also was acquitted but it was not until March 22, 1918, that +he was admitted to bail. Nolan, with Captain Matheson’s help, +walked out of prison shortly after the Oxman exposures and was +never tried.</p> + +<p>In the Weinberg trial, eighteen police officers who had been +stationed in the vicinity of Steuart and Market on July 22nd +testified that they had seen no jitney in that area between 1:30 +and 2:06 p.m. Inspector William H. Smith and Captain Walter +J. Peterson of the Oakland Police Department both said that Mrs. +Edeau had first told them that she and her daughter had seen +two middle-aged men “carrying a black suitcase with white metal +trimmings at Steuart and Market Streets.” When Mrs. Edeau was +taken to City Prison to identify Mooney and Billings, she had +told Inspector Smith, “I have never seen either of these men in +my life before.” In any event, it had been her “physical” body at +Steuart and Market, she had informed the startled officer, because +her “astral” body was standing on the sidewalk in front of the +Kamm Building watching Billings leaning over the roof of 721 +Market Street. Two years later, her physical hand was to write for +the rewards her astral eyes had earned.</p> + +<p>Although Oxman was acquitted of subornation of perjury,<span class="pagenum" id="Page_62">[Pg 62]</span> +Woodrow Wilson appointed a Mediation Commission to make an +investigation into the Mooney case. On January 16, 1918, the +Commission informed the President that, while it was not in a +position to determine the defendant’s guilt or innocence, it did +feel that “a solid basis exists for the feeling that an injustice was +done ... and that an irreparable injustice would be committed to +allow such conviction to proceed to execution.” On the strength +of this report, Wilson persuaded Governor William D. Stephens +to commute Mooney’s sentence to life imprisonment.</p> + +<p>Because California law did not permit the granting of a new +trial on the basis of evidence that was not in the original record, +it became impossible, notwithstanding Judge Griffin’s earnest +attempts, to give Mooney another hearing. Both the trial judge +and the Supreme Court of California were powerless to act despite +that fact that, in May of 1921, Mr. and Mrs. Earl Hatcher +of Woodland, California, told a Grand Jury investigating +Oxman’s possible perjury at the Mooney trial that the cattleman +did not board the San Francisco train until 2:15 p.m., nine minutes +after the bomb had exploded some ninety miles to the +southwest. When Griffin reminded Governor Stephens that +Mooney had been condemned upon evidence “concerning the +truth of which, there had arisen a very grave doubt,” he had +made the understatement of the century.</p> + +<p>But there were still more surprises in the offing. Alice Kidwell, +Estelle Smith’s mother, who had testified before the Grand Jury +that she saw Mooney waiting for Billings outside of 721 Market +Street, had written a letter on February 2, 1917, to her husband, +who was then serving a term for forgery in Folsom Penitentiary. +In it, she told him that “the authorities are going to let you out +and maybe in a few days. Captain Matheson and the District +Attorney went to see two of the Board this A.M. and will see the +others at Sac. I know I am needed for authorities and they are +helping me by getting you out.”</p> + +<p>Fickert’s largesse was impressive. Before Estelle Smith had +retired to the safety of a dentist’s office, she had been a San Francisco +prostitute with a long arrest record. In addition, she and +James L. Murphy, an uncle, had been indicted in 1913 for the +murder of a boarder at the rooming house in which they were +then living. Estelle was never tried but her uncle was convicted<span class="pagenum" id="Page_63">[Pg 63]</span> +and sentenced to twelve years in the penitentiary. Coincidentally, +Uncle Jim was released on April 10, 1917, forty-five days after +Mooney’s sentence. In 1929, Miss Smith gave Fremont Older, +then the editor of the <i>San Francisco Call</i>, a sworn statement in +which she admitted she and the Edeaus had been carefully +coached by Fickert’s men.</p> + +<p>On February 7, 1921, John McDonald, the only key witness +besides the Edeaus to testify in all four trials, executed a startling +affidavit in New York City. In it, he stated that, while he had +seen a man “lay down a suitcase” on Steuart Street, he had never +seen that man again. But the District Attorney had wanted more +out of him than this. “I think I talked to Fickert every day for +weeks about the case. He kept saying to me every time I came, +always using hard names against Mooney and Billings, ‘Those +are the men you saw there that day.’ Up to this time I had never +told Fickert that I could not have identified these men if they +had not been pointed out to me, and I could not do so.” Just +before the trial, Fickert told him that “there is a reward of +$17,500 for the conviction of these people, and when I put them +away, I will see that you get the biggest slice of the reward.” +For a man who hadn’t worked in months, the temptation was +just too much.</p> + +<p>For some weeks prior to July 22nd, more than two hundred +hand-printed post cards had been mailed to various sponsors of +the parade. These cards warned their recipients that, because of +their “extreme activity in promoting and glorifying militarism ... +the extermination of you and your evil class, is going to be the +sole and patriotic duty of the Employees Liberty League.” Although +many detectives thought that there was a connection between +the cards and the explosion, Fickert had dropped any +further investigation along this line when handwriting experts +advised him that neither Mooney nor Billings could have written +them. But in 1930, Alonzo A. Smith swore that his brother, +Louis, had told him before he died that he had been hired to +throw a time bomb from the top of Market Street building during +the Preparedness Day Parade. Dora E. Monroe said that Louis +had once stated that “it was me that threw the bomb ... which +Tom Mooney was convicted for.” It was to be dropped into a +certain car in the parade and Smith had received a two-thousand-dollar<span class="pagenum" id="Page_64">[Pg 64]</span> +advance with eight thousand more promised for results. +But he had lost his nerve and thrown the bomb too early.</p> + +<p>The rest of the story consisted of one application after another +by Mooney for a pardon. Although his petitions were supported, +at one time or another, by Captain Matheson, Detective Hand, +Matthew Brady, Fickert’s successor, Judge Griffin, and nine of the +ten living Mooney jurors, four California governors in a row—Richardson, +Young, Merriam and Rolph—refused to free him. +Even a daring attempt by the defendant in 1933 “to risk my +neck” by insisting on being tried on one of the other murder +indictments, came a cropper when the district attorney informed +Judge Louis H. Ward that “the evidence in this case is insufficient ... the +State asks for an instructed verdict and rests.”</p> + +<p>It was not until January of 1939 that Governor Culbert L. +Olson ended more than twenty-three years of imprisonment by +granting Mooney an unconditional pardon. But for San Quentin +Convict Number 31921, it all came much too late. The fifty-six-year-old +man, who returned to San Francisco to find his countrymen +on the brink of another war, had only three more years to +live. The spirit that, as late as 1932, had been “aflame with furious +indignation,” had burned itself out in a dungeon.</p> +<hr class="full"> + +<div class="chapter"> +<p><span class="pagenum" id="Page_65">[Pg 65]</span></p> + +<h2 class="nobreak" id="c6">4</h2> +</div> + +<p class="u large"><i>Anarchists With Bloody Hands</i></p> + +<p class="c xlarge">The Commonwealth of Massachusetts</p> + +<p class="c xlarge"><i>versus</i></p> + +<p class="c xlarge">Bartolomeo Vanzetti and Nicola Sacco</p> + + +<p>Thursday, April 15, 1920, dawned bright and windy in South +Braintree, Massachusetts, a manufacturing town some twenty +miles south of Boston. Shortly after nine that morning, Shelley A. +Neal, the local American Express agent, waited at the New Haven +railroad station for the delivery of a $15,776.51 payroll. The +money was consigned to Slater & Morrill, Inc., one of South +Braintree’s two shoe companies.</p> + +<p>The cash arrived on the Boston train at about 9:10, and Neal +took it to his office on the first floor of Hampton House, a four-story +frame building on Railroad Avenue, a few feet from its +intersection with Pearl Street, South Braintree’s main thoroughfare. +Slater & Morrill occupied the top three floors of Hampton +House, with its business office on the second floor. After he had +sorted and counted the money, Neal left his office and walked +down Railroad Avenue to the shoe company’s main entrance in +the center of the rectangular building. As he locked his door, he +saw that the hands on his office clock stood at exactly 9:30. He +was a rapid walker and had almost arrived at the double-doored +entrance before he noticed, with some apprehension, that a large, +newly varnished black automobile with its motor running was +parked alongside the curb.</p> + +<p>When Neal passed the car, he saw that its driver, a light-haired +man with an emaciated, jaundiced face, was watching him +intently. As he entered Hampton House, he observed that the<span class="pagenum" id="Page_66">[Pg 66]</span> +man got into the car and drove slowly up Railroad Avenue. +Neal followed the vehicle with his eyes and thought that he +could glimpse another man sitting in its rear seat. Although he +later admitted that he had considered the driver’s conduct extremely +suspicious, the agent did not report the incident to anyone +at Slater & Morrill.</p> + +<p>The company’s paymistress receipted for the money and began +at once to fill the pay envelopes. When she had finished, the grey-colored +packets were stacked in two large tin flats. Thursday was +payday at the factory, and the boxes were scheduled to be picked +up at three o’clock that afternoon by Frederick A. Parmenter, +Slater & Morrill’s acting paymaster.</p> + +<p>The car that had aroused Neal’s suspicions was apparently seen +in other parts of South Braintree that morning. At 10:30, Harry +E. Dolbeare, a piano repairman, was walking on Hancock Street +when he noticed what he later described as “a carload of foreigners” +in a large black sedan turning into Hancock Street from +Holbrook Avenue. In the back of the car, he saw a man with “a +very heavy mustache ... leaning forward as though he was talking +to either the driver or the other person in front of the car.” +In all, there were four men in the car who appeared to him to be +“a tough looking bunch.”</p> + +<p>A little after 11:30, Mrs. Lola R. Andrews, an unemployed +practical nurse, arrived in South Braintree with Mrs. Julia +Campbell, an elderly friend. Both women were seeking work +and applied first at Slater & Morrill’s Factory No. 2, a four-story +frame building which was located about an eighth of a mile east +of Hampton House on Pearl Street. As the women entered the +factory, Mrs. Andrews noticed a large black car parked in front +of it. She saw a swarthy man, dressed in dark clothing, bending +over the hood. In the back seat, she observed a thin, emaciated +looking man with what she later depicted as “a light complexion.”</p> + +<p>There were no jobs open at Slater & Morrill and, when Mrs. +Andrews left the building some fifteen minutes later, she saw +that the swarthy man was now lying on the ground with his head +and shoulders under the front part of the vehicle. The sickly +looking man, who had been sitting in the rear seat, was outside, +leaning against the back of the car. Mrs. Andrews asked the man<span class="pagenum" id="Page_67">[Pg 67]</span> +under the car if he could direct her to the Rice & Hutchins +factory. At the sound of her voice, he got to his feet and pointed +to the five-story brick building which was some 120 feet west of +Factory No. 2.</p> + +<p>Earlier that day, John M. Faulkner, a Cohasset pattern maker +who was bound for the post hospital at the Watertown Arsenal +to be treated for an infected hand, had boarded the 9:20 train to +Boston. He was sitting in the second seat on the left hand side of +the smoker. As the train came into East Weymouth, the passenger +sitting on his right asked him if the stop was East Braintree. As +Faulkner remembered it, “he said, ‘the man behind me wants to +know if it is East Braintree.’” The pattern maker had then looked +at the other man who was sitting in a single seat near the lavatory. +“He looked like a foreigner, with a black mustache, and cheek +bones.” The “foreigner” wore a felt hat and was dressed in “kind +of old clothes.” Faulkner had watched him leave the train, carrying +a leather bag, when the local pulled into East Braintree +shortly after ten o’clock.</p> + +<p>At 11:30, William S. Tracy, a real estate broker, had driven by +South Braintree Square. He “saw two men standing with their +back to the window of that [drug]store, the window nearest +the corner of Pearl Street.” Some ten minutes later, he returned +to the Square and noticed that the two strangers were still there. +“The man nearest the drugstore was the shorter of the two and +the other fellow ... the shorter man of the two, he stood erect, +and their general appearance was that they were dressed respectably +and looked as if they might have been waiting for a car.” +What had attracted his attention to the men, whom he thought +were Italians, was the fact that “no one was allowed to lean up +against that building.”</p> + +<p>Just after noon, one William J. Heron, a railroad detective, +saw two strange men loitering near the station restroom. “One +of them was about 5 feet 6 inches, weighed about 145 pounds, +Italian. The other fellow was about 5 feet 11; I should say, +weighed about 160. They were smoking cigarettes, one of them.” +He had observed them closely because he considered it unusual +for them to be there with no train due for some time, and “they +acted kind of funny to me, nervous....” Heron had come to +South Braintree to look for a lost boy whom he had found in<span class="pagenum" id="Page_68">[Pg 68]</span> +the station and taken into the ticket office. When he emerged, +a few minutes later, “the two men were gone.”</p> + +<p>Shortly before three o’clock, Parmenter and Alessandro Berardelli, +a guard, arrived at the paymistress’ office on the second +floor of Hampton House. They signed for the payroll and each +man took one of the tin boxes containing the pay envelopes. +Mark Carrigan, a shoe cutter, who worked on the third floor of +Hampton House, watched the two men leave the building. They +crossed Railroad Avenue, passed to the right of the New Haven +station, talked briefly with James E. Bostock, a Slater & Morrill +millwright, and then started up Pearl Street toward Factory +No. 2.</p> + +<p>A few minutes earlier, Bostock had noticed two foreign looking +strangers—he later said he thought they were Italian fruit +peddlers—leaning against a fence near a water tank on the +north side of Pearl Street, but he did not mention them to +Parmenter or Berardelli. His conversation with the paymaster +and the guard was brief—he remembered only that Parmenter +had ordered him to “go into the other factory and fix the pulley +on the motor” and that he had answered that he couldn’t do the +job that afternoon because he was “going to get this quarter past +three car to Brockton.”</p> + +<p>Albert Frantello, a former Slater & Morrill employee, also saw +the two strangers who had attracted Bostock’s attention, and +remembered that “the one that was nearest me had on a black +cap, dark suit, dirty front on him, looked like a jersey, dark complexion +and needed a shave, and he was a stocky build. The other +fellow, he was light complexioned. He had on a cap; dark suit. +He was about as tall as the other fellow, about the same height, +only he was slimmer, kind of pale looking, and his hair was +light. It was not as dark as the other fellow’s. I would say he was +slimmer than the other fellow. He was not stocky build.” The +first man had been wearing “a dark cap ... pulled down just +like any ordinary fellow would have his cap on, just resting on his +forehead.” The two men had been having an argument and +Frantello overheard the stocky one berate his companion “in the +American language.”</p> + +<p>After his brief conversation with Parmenter and Berardelli, +Bostock hurried on toward Hampton House. He had only gone a<span class="pagenum" id="Page_69">[Pg 69]</span> +few steps when he was startled to hear a fusillade of shots behind +him. He turned and saw the guard lying on the ground and a +man standing over him with a smoking pistol in his hand. As +he later testified, “... he stood over him. He shot, I should say, +he shot at Berardelli probably four or five times. He stood guard +over him.” Parmenter had dropped his box when he was hit by +the first bullet and managed to run across Pearl Street, closely +pursued by a second man who shot him in the back just as the +pair reached an excavation for a new restaurant on the north side +of the street.</p> + +<p>According to Bostock, both bandits “was dressed in sort of dark +clothes, with ... dark caps ... they appeared to be foreigners.” +As for their physical appearance, “they was fellows of medium +build ... smooth face, dark complected.” When one of the gunmen +fired two shots at him, the millwright jumped behind the +wooden fence where he had first noticed them just before meeting +Parmenter and Berardelli. He had started to run back toward the +railroad crossing when a black seven-passenger Buick drove +slowly down the street, picked up the two gunmen and their loot, +and then proceeded down Pearl Street toward the railroad crossing. +The millwright ducked behind the water tank as the car +shot by him. It was so close to him that “if I laid out at arm’s +length I could have touched the spokes of the car as it passed me.” +He saw four men inside, one of whom was firing at the excited +crowd which was rapidly collecting around the bodies of the +paymaster and the guard.</p> + +<p>When the shooting started, Lewis L. Wade, a sole leather cutter +who doubled in brass as an auto mechanic for Slater & Morrill, +was filling Mr. Slater’s car with gasoline from a pump located in +a little concrete shed in front of Factory No. 2. He saw Parmenter +run across the street and disappear from view behind “a dirt +truck.” A short, bareheaded man who “needed a shave” was +standing over Berardelli, pumping bullets into the fallen guard. +“And the next thing that I saw was a car come up Pearl Street, +and stop—well, it didn’t exactly stop. I wouldn’t say for sure +whether it stopped or not. And there was a man at the wheel ... +he was a pale-faced man, a man, I should judge ... about probably +30 or 35. He looked to me like a man that had sickness or +he was sick.”</p> + +<p><span class="pagenum" id="Page_70">[Pg 70]</span></p> + +<p>As soon as the car had passed him, Wade ran into the factory +office and called in the first alarm to the Braintree police. When +he returned, he “went to where Berardelli lay and he was not +dead then. He was breathing, and when he breathed the blood +would come up and down on his face.” Across the street, the +mechanic noticed that James E. McGlone, a teamster who was +transporting stone from the restaurant excavation, was struggling +to keep his frightened team from stampeding. McGlone later +described the killers as “dark-skinned Italians” while Hans Behrsin, +Mr. Slater’s chauffeur, who had been crouched behind the +gasoline shed during the shooting, thought they had been “light +complexioned boys.”</p> + +<p>Mrs. Barbara Liscomb, who had been looking out on Pearl +Street from a third-floor window squarely in the middle of the +Rice & Hutchins building, said she saw “two men lying on the +ground and one man, a short dark man, standing on the ground +facing me with his head up, holding a revolver in his hands.” +She was only at the window “about two seconds,” having collapsed +when the man waved the gun at her, and she did not see +the automobile traveling down Pearl Street. As she later put it, +“I sort of fainted away.”</p> + +<p>Mary E. Splaine, a Slater & Morrill bookkeeper, was working in +her corner office on the second floor of Hampton House that +afternoon. Just after three o’clock, she had watched Parmenter +and Berardelli walk up Pearl Street toward Factory No. 2, and +had returned to her desk when they passed out of her line of +vision. When she heard the shots, which she first thought were +automobile backfires, she returned to the windows which opened +on Pearl Street. She saw a black automobile driving slowly in the +direction of the railroad tracks. It crossed the tracks and, as it +passed under her window, she saw one of its passengers leaning +out of the car, a man she later described as “an active looking +man.”</p> + +<p>Miss Splaine did not see the actual shooting but twenty-two-year-old +Lewis Pelser, a Rice & Hutchins employee, claimed that +he did. He was working on the main floor of the factory building +when he heard the first shots. He had rushed to the window, +looked out and, as he put it, “I seen this fellow shoot this fellow. +It was the last shot. He put four bullets into him.” The killer<span class="pagenum" id="Page_71">[Pg 71]</span> +“had wavy hair pushed back, very strong hair, wiry hair, very +dark.” Pelser also jotted down the license number of the car, +noticing as he did so that the rear window of the vehicle had been +removed and that a rifle or shotgun barrel protruded from this +opening. Edgar C. Langlois, his foreman, had watched the shooting +from the floor above Pelser. According to him, the murderers +had been “stout ... thick-chested young men.”</p> + +<p>Winifred H. Pierce, a Slater & Morrill shoemaker, had run to a +window on the Pearl Street side of Hampton House as soon as +the gunplay started. He saw two men in a black car, one of whom +was climbing into the front seat from the rear. Lawrence D. +Ferguson, a co-worker who was standing next to Pierce at the +window, corroborated his story. But Daniel J. O’Neil, a South +Braintree school boy, had a different version. According to him, +the man in the car’s back seat had “walked along [its] running +board and before the car had got over the other side of the +crossing that man was sitting in the front seat.” The man he had +seen “was a man [with] dark hair, cleanly shaven, broad shoulders +<span style="margin-left: 0.5em;">light complexion.... He wore a blue suit and no hat ... of</span><br> +and his hair was thick but light and combed back straight over +his head.”</p> + +<p>As Parmenter and Berardelli walked up Pearl Street toward +Factory No. 2, they had been followed by Roy E. Gould, a razor +sharpening paste peddler, who hoped to sell his product to the +Slater & Morrill employees after they were paid. He was running +in order to get to the factory before the paymaster did, so that he +could set up his display stand. Before he could catch up with the +two men, the hold-up occurred. As the Buick passed within ten +feet of him on its way toward the railroad crossing, one of the +gunmen fired at him, the bullet piercing the pocket of his overcoat +without injuring him. Gould gave his name to a Braintree +policeman and indicated that he would be available for questioning +if needed. His observations apparently failed to titillate the +police and he was never questioned by them.</p> + +<p>Frank J. Burke, an itinerant glassblower who had arrived in +South Braintree at 2:30 that afternoon to give a demonstration +of his art at a local school, claimed that the hold-up car had +passed within ten feet of him after the shooting. When he first +saw it, the sedan was moving slowly down Pearl Street toward the<span class="pagenum" id="Page_72">[Pg 72]</span> +railroad crossing. He watched two men jump on the running +board and climb into the back seat. As the car approached the +crossing, one of these men crawled into the front seat next to the +driver. Seconds later, Burke heard a gunshot in the car, and the +man who had climbed over into the front seat pointed a revolver +at him and shouted, “Get out of the way, you son of a bitch!” +He saw “a dark man with a short cropped mustache” in the rear +of the car.</p> + +<p>Mark Carrigan watched the car drive over the Pearl Street +crossing but it was going too fast for him to recognize anyone in +it. One of its occupants, “had black hair and looked, possibly, +like an Italian.” Louis De Beradinis, who owned a shoe repair +shop at the corner of Railroad Avenue and Pearl Street, noticed +a man with a gun standing on the vehicle’s running board. “This +man pointed a revolver to my face” and had “a long face, and +awful white, and light hair combed in the back. It was a thin +fellow I saw.”</p> + +<p>Carlos E. Goodridge, a Victrola salesman, who was whiling +away a slow day in Magazu’s poolroom which was a block west of +Hampton House on the north side of Pearl Street, rushed out +when he heard the excitement. He saw the black sedan cross the +New Haven tracks and watched, with idle curiosity, as it approached +Magazu’s. Suddenly, he noticed that one of its occupants—“a +dark complexioned fellow, with dark hair, a peculiar +face that came down pointed”—was pointing a gun at him, and +he jumped back into the poolroom and hid under one of the +tables.</p> + +<p>Michael Levangie, the gate tender at the Pearl Street crossing, +had lowered his gates for an approaching train when the Buick +came toward him. He was startled to see that one of the passengers +in the car was pointing a revolver at his head. He was ordered +by this man to raise his gates. He remembered that the +person who shouted at him spoke with a decided foreign accent +although it was Burke’s recollection that the man who had ordered +him out of the way had used good English. As Levangie +later testified, “I looked back at the train to see if I had a chance +to let them go. I saw that there was a chance to let them go and I +let them, and I put my gates back where they belonged.” He was +able to describe only one of the vehicle’s occupants, the driver,<span class="pagenum" id="Page_73">[Pg 73]</span> +who, he said, was “a dark complected man with cheek bones +sticking out, black hair, heavy brown mustache, slouch hat and +army coat.”</p> + +<p>The Buick continued down Pearl Street and turned left on +Hancock Street. As it crossed the New Haven tracks, it was seen +by eight railroad workers, most of whom described the driver as +“kind of light-complexioned” and the man sitting alongside of +him on the front seat as “big and dark.” Shelley Neal saw it +make the turn when he ran out of his office upon hearing the +shots. As it passed the drug store on the corner of Pearl and +Hancock, its passengers scattered rubber-headed tacks along the +road. It took more than a week before South Braintree could +count a day without at least one blowout on Hancock Street. +Daniel Buckley, a railroad employee, was the last person in South +Braintree to see the car as it headed out of town on South Street.</p> + +<p>Several people remembered spotting it later that afternoon as +it headed south through Randolph, Canton, Stoughton, Brockton +and West Bridgewater. At four, sixteen-year-old Julie Kelliher, a +student at Brockton’s Hancock School, saw a black sedan hurtling +through that town at such a high rate of speed that she reported +it to the police. It was next seen by Austin Reed, the gate tender +at the Matfield Crossing just outside of West Bridgewater, at +4:15. Reed waved his warning sign at the oncoming automobile +because a train was expected momentarily. One of the men in +the car pointed his finger at the startled gate tender and snarled, +“What to hell you hold us up for?” The man he saw was “a dark +complected man, kind of hollow cheeks, with high cheek bones, +had a stubby mustache. His hair was black.”</p> + +<p>Meanwhile, back in South Braintree, the horror-struck bystanders, +who had been scattered momentarily by some shots from +the rear window of the disappearing Buick, regathered around +the two wounded men. Berardelli was lying in the street with +his head next to the curbing. He was almost dead. According to +Jim Bostock, the first man to reach him, “he laid in a kind of +crouched position and I helped lay him down and every time he +breathed, blood flowed and was coming out of his mouth.” The +two men were taken to the home of Horace A. Colbert, a railroad +tower man who lived just east of the restaurant excavation,<span class="pagenum" id="Page_74">[Pg 74]</span> +where Berardelli died. Parmenter lived until five o’clock the next +morning.</p> + +<p>Fred L. Loring, a Slater & Morrill shoe worker, noticed a cap +with earlaps near Berardelli’s body, which he picked up and +turned over to his superintendent. The next day, the latter gave +the cap to Jeremiah F. Gallivan, Braintree’s police chief, who +kept it under the seat of his car for ten days before delivering it +to Brockton’s Captain John Scott. The only other evidence found +at the scene were some empty cartridges which littered Pearl +Street. Berardelli’s Harrington & Richardson revolver, which he +had been carrying that day, was missing.</p> + +<p>Two days later, the Buick was discovered by two horsemen in +Bridgewater’s Manley Woods, some five miles west of the Matfield +Crossing. Leading away from the abandoned vehicle were the +tiretracks of a smaller car. Although the black sedan’s license +tags had been removed, plates with the number which Louis +Pelser had jotted down two days before had been pilfered from +another car early in 1920. The Buick itself had been reported as +stolen by its owner, a Dr. Francis J. Murphy, on November 23, +1919. The isinglass rear window was pushed out and there was a +bullet hole in the car’s right rear interior. It was later identified +by almost every eyewitness as similar to the one they had seen on +the day of the robbery.</p> + +<p>Bridgewater’s Police Chief Michael E. Stewart was convinced +that the crime had been committed by a resident Italian who +owned a car. Mike Boda, who boarded with a radical named +Coacci in a shack near the Manley Woods, was interviewed by +Stewart three days after the South Braintree murders. He told +the police officer that his car, a small Overland, was stored in +Simon Johnson’s garage in West Bridgewater. Stewart called on +Johnson and told him to notify the police if anyone called for +Boda’s car.</p> + +<p>On the evening of May 5th, Nicola Sacco, a Stoughton shoe +worker, Bartolomeo Vanzetti, a Plymouth fish peddler, Boda, and +a mutual friend named Ricardo Orciani, started out from the +former’s house for West Bridgewater to pick up the Overland. +Sacco and Vanzetti took the trolley while the other two men rode +on Orciani’s motorcycle. When Boda and Orciani arrived at the +garage, they found it locked. They then walked over to Johnson’s<span class="pagenum" id="Page_75">[Pg 75]</span> +house where they were soon joined by Sacco and Vanzetti. Boda +rang the bell and, when the garage owner’s wife opened the door, +told her that he had come for the Overland. While the four men +waited, Mrs. Johnson went over to a neighbor’s house and telephoned +to Chief Stewart. Meanwhile her husband had convinced +Boda that, since the Overland did not have 1920 plates, it would +be better to leave it in the garage. Boda apparently took his +advice and drove off on the motorcycle with Orciani.</p> + +<p>Sacco and Vanzetti left the Johnson house and boarded the +North Elm Street trolley for Brockton. When the car was passing +through the Campello section of Brockton, it was boarded by a +policeman who immediately arrested the two men. The officer +found a .38-caliber Harrington & Richardson revolver (which +was not Berardelli’s) and some shotgun shells in Vanzetti’s coat +pocket. Sacco denied that he was carrying a gun and “a slight +going over” did not reveal any weapon on his person. Later that +evening, at the Brockton police station, “an automatic .32 Colt +revolver” was found in his belt as well as thirty-two cartridges of +various makes.</p> + +<p>Four weeks later, Vanzetti was indicted for an attempted holdup +that had taken place at Bridgewater on the morning of +December 24, 1919, in which several “foreigners” had tried to +hijack a truck containing the payroll of the White Shoe Company. +According to eyewitnesses, two men had parked their automobile +so that it blocked off Broad Street, the road leading to +the shoe company. Guards in the payroll truck had fired at the +holdup men who had retreated to their car and driven away. One +of the thwarted bandits, who was armed with a shotgun, had +discharged his weapon harmlessly at the guards before turning +tail.</p> + +<p>The trial of this indictment began at Plymouth on June 22, +1920, before Judge Webster Thayer and a jury of twelve men, +one of whom was the foreman at the Plymouth Cordage Company +from which Vanzetti had been discharged in 1916 for participating +in a strike. The charges against the fish peddler were +assault with intent to rob and assault with intent to murder. +Sacco was not indicted because the records of the 3-K Shoe Factory +in Stoughton indicated that he had been at work on the day +of the crime.</p> + +<p><span class="pagenum" id="Page_76">[Pg 76]</span></p> + +<p>Frederick G. Katzmann, the District Attorney of Suffolk and +Plymouth Counties, took the position that the 1920 Buick which +had been found in the Manley Woods on April 17th had also +been used in the Bridgewater assault. He had three witnesses—the +two guards who had been in the payroll truck and a shoe +company employee—who identified Vanzetti as the man who had +fired the shotgun. A Mrs. Georgina F. Brooks, who had been +walking near the Bridgewater railroad station, said that she had +seen Vanzetti driving an automobile in the vicinity just after the +shooting. Maynard Freeman Shaw, a newsboy, swore that he had +seen the defendant that morning running up Broad Street with +a gun in his hand. He knew he “was a foreigner, I could tell by +the way he ran.” Most of the witnesses described the bandits’ +automobile as a “dark touring car.”</p> + +<p>The prosecution rested on June 28th and Vanzetti’s attorneys, +J. P. Vahey and J. M. Graham, put sixteen Italians on the stand +to prove that the defendant had an alibi for the day of the crime. +His landlady said that she had seen Vanzetti preparing his fish +on the evening of December 23rd and that she had awakened him +early the next morning. Other Plymouth residents swore that +they had purchased eels from him during the day. John DiCarli +bought some shortly after seven a.m. and Mrs. Terese Malaquci +an hour later. Between nine and ten, Beltrando Brini, a thirteen-year-old +boy who worked for Vanzetti, delivered some fish to +Mrs. Adeladi Bonjionanni and to her neighbor, Mrs. Margaretta +Fiochi. All told, some seven people testified that Vanzetti or +young Brini had filled orders for them on the morning of the +twenty-fourth. Upon the recommendation of his lawyers, who +were afraid that his radical opinions and activities would be +brought out, Vanzetti did not take the stand.</p> + +<p>The jury retired at 10:50 on the morning of July 1st and +returned a verdict of guilty on both assault charges a little more +than five hours later. In the middle of August, Judge Thayer +sentenced the defendant to twelve to fifteen years in prison. As +the verdicts were announced, Vanzetti turned to his many friends +in the courtroom and said, “Corragio.” Although a notice of +appeal was duly filed with the Supreme Judicial Court, it was +never perfected because of the subsequent murder conviction.</p> + +<p>On September 11th, both Sacco and Vanzetti were indicted for<span class="pagenum" id="Page_77">[Pg 77]</span> +the South Braintree murders by “beating and shooting ... against +the peace of said Commonwealth.” However, it was not +until May 31, 1921 that their joint trial began in Dedham, a +Boston suburb, before the ubiquitous Judge Thayer. It took +more than four days and seven hundred Norfolk County veniremen +before George A. Gerard, the last juror, was sworn in at +1:35 a.m. on June 9th. Thayer appointed Walter R. Ripley, a +stock-keeper and former Quincy police chief, as foreman and it +was at last time for Katzmann to put in his case against the two +immigrant defendants.</p> + +<p>After Vanzetti’s conviction on the assault charges, the Sacco-Vanzetti +Defense Committee, headed by Aldino Felicani, the +editor of <i>La Notizia</i>, an Italian-language newspaper, retained +Frederick H. Moore and William J. Callahan, for Sacco, and +two brothers, Jeremiah J. and Thomas F. McAnarney, for Vanzetti. +Moore, a member of the California Bar, was named chief +counsel for both men despite strenuous pre-trial efforts by Mrs. +Sacco to have him withdraw in favor of William G. Thompson, +a Boston attorney. The Commonwealth was again represented +by Mr. Katzmann who was aided by Assistant District Attorney +Harold P. Williams.</p> + +<p>After the physicians who had conducted the autopsies on the +two murdered men had described their wounds and identified +the bullets taken from their bodies, Shelley Neal told the jury +about the black sedan he had seen in South Braintree on the day +of the crime. He was positive that it was the same car that had +been found in the Manley Woods two days later. But, outside of +remembering that there had been a slender man with light hair +standing next to the Buick when he had seen it parked in front +of Hampton House on the morning of the holdup, he was unable +to describe any of the vehicle’s occupants.</p> + +<p>Neal wasn’t the only prosecution witness who couldn’t identify +the defendants. Hans Behrsin, Mr. Slater’s chauffeur, had observed +two “light complexioned fellows” sitting on the fence near +Rice & Hutchins just before the shooting. But he was unable to +describe them with any certainty because “they were all covered +up.” After the murders, he had seen the Buick heading for the +Pearl Street crossing. When it passed him, “the back curtains +were drawn and flopping around back and forth, and I think<span class="pagenum" id="Page_78">[Pg 78]</span> +there were about five of them in there ... and as that passed me +by there was some one on the back there beckoning with a gun +or shotgun.” Because he hadn’t gotten a good look at any of the +men in the car, he couldn’t say that Sacco or Vanzetti had been +riding in it.</p> + +<p>Jim Bostock had been taken to see the defendants shortly after +their arrest and asked whether they were the men he had seen on +Pearl Street that afternoon. Like Behrsin, he “could not tell +whether or not they was, no, sir.” Lewis Wade could not “say for +sure” if Sacco was the man who had shot Berardelli. Even though +he had told Katzmann at the Brockton Police Station that the +defendant was the man he had seen, he now thought he had been +“a little mite mistaken.” The reason he was no longer sure of his +identification was that just before the trial he had seen a man in +a barber shop who resembled the murderer.</p> + +<p>Foreman Langlois, who had watched two “young men” firing +at the guard and the paymaster, remembered only that they had +been “short and dark complexioned, curly or wavy hair, about +five feet, eight or nine inches, about 140 or 145 pounds.” He was +sure that he could not identify either man if he saw them again. +Mark Carrigan had seen the car race over the crossing but had +not been able to recognize anyone in it because it had been going +so fast. Louis DeBeradinis, the proprietor of a shoe repair shop +at the corner of Railroad Avenue and Pearl Street, had been +frightened by a man with “a long face ... and light hair” who +had leaned out of the car and pointed a gun at him. Although, +he thought that dark-haired Sacco looked like the man with the +gun, he insisted that the latter had been “a light-haired man.”</p> + +<p>But Katzmann was not wanting for more definite eyewitnesses. +He had five who claimed to have seen Vanzetti near South +Braintree on April 15th. John Faulkner said he had observed him, +bushy mustache and all, on the Boston train that morning. But +he was unable to remember anything about the man sitting to +his immediate right who had asked him, supposedly at Vanzetti’s +request, whether the next station was East Braintree. He admitted +that he had seen a picture of the defendant in a newspaper +before he was taken to the jail to identify him. The conductor +on the train later testified that he, too, had seen such a man get<span class="pagenum" id="Page_79">[Pg 79]</span> +off at East Braintree on several occasions long after April 15th, +but he was certain that he was not Vanzetti.</p> + +<p>Harry Dolbeare, the piano tuner, who swore that he had noticed +Vanzetti among a group of “foreigners” sitting in the back +of a car before noon on the day of the shootings, couldn’t identify +any of the other men. Although gate tender Levangie was sure +that Vanzetti was the “dark complected man” who had frightened +him with a pistol at the Pearl Street crossing, he couldn’t remember +whether Mr. McAnarney had visited him at his shanty barely +two weeks before the trial started. Alexander G. Victorson, the +railroad’s freight clerk, later testified that Levangie had said, minutes +after the shooting, that he didn’t think he could identify the +men he had seen in the car as it sped over the tracks.</p> + +<p>An hour later, the gate tender told Henry McCarthy, a locomotive +fireman, that he had “ducked in the shanty” when he saw +the guns pointed at him. “I asked him if he knew them,” +McCarthy said, “He said no, he did not. I asked him if he would +know them again if he saw them. He said ‘No,’ he said all he +could see was the gun and he ducked.” Shortly afterward, +Levangie informed Timothy J. Collins, a <i>Boston Globe</i> reporter, +that he had not seen anyone in the car, while, at 4:30, he told +Slater & Morrill’s Edward Carter that its driver had been “a +light-haired man.”</p> + +<p>Austin T. Reed, the gate tender at the Matfield Crossing in +West Bridgewater, identified Vanzetti as the man sitting next to +the driver of a “five-passenger car” which had roared toward his +intersection at 4:15. The automobile had screeched to a stop +when Reed lowered his gates because of an approaching train. +When the train had passed, the car crossed the tracks and pulled +up alongside Reed’s shanty. Vanzetti, he said, had shouted, “What +to hell did you hold us up for?” in “English that was unmistakable +and clear.” The vehicle then drove off to the east, circled +around, and finally recrossed the tracks, disappearing in the +direction of West Bridgewater. Like Faulkner, Reed had gone +voluntarily to Brockton and “asked to see the two defendants +that were there.” He had listened to Vanzetti speak to an officer +at the police station in “the same gruff tone that he used in +speaking to me.”</p> + +<p>Austin C. Cole was the conductor of the street car on which<span class="pagenum" id="Page_80">[Pg 80]</span> +Sacco and Vanzetti were arrested. He was sure that they were the +same two men he had seen on his car on either April 14th or 15th. +According to him, they had boarded the trolley at Sunset Avenue, +some two miles from West Bridgewater’s Elm Square. He particularly +remembered Vanzetti because he had first thought that +the latter was a friend of his named Tony. When the defense +showed him a side view photograph of one Joseph Scavitto, a +man who bore a striking resemblance to Vanzetti, the witness +was unable to say that it was a picture of the man who had +boarded his car because he had never seen his profile.</p> + +<p>The prosecution had seven witnesses who identified Sacco. +Lola Andrews insisted that he was the man she had seen working +under the car near Slater & Morrill Factory No. 2. When Katzmann +asked her to look around the courtroom, she pointed to +the steel cage in which both defendants were seated and said, +“That man there.” Sacco sprang to his feet and shouted, “I am +the man? Do you mean me? Take a good look!” Yes, she was +sure that the man who had just yelled at her was the same dark +man who had told her how to get to Rice & Hutchins.</p> + +<p>Mrs. Andrews claimed that she had picked out Sacco in the +Dedham Jail in February. After she had been taken through the +prison, she had accidentally seen the defendant in one of the cells. +She couldn’t remember whether he had been alone or not but she +had watched him for at least fifteen minutes. No one had told her +to look into that particular room. “The room I was in,” she said, +“was—I don’t know just how to explain it, but it had kind of an +opening back here, like there was a room underneath that you +could look from the room I am in down into this room underneath.”</p> + +<p>When Mr. Moore showed her some snapshots and asked her +whether she had looked at them before at his request, she stated +that “I don’t recognize any of those photographs at all.” The +next day, Mrs. Andrews collapsed on the stand when Mr. +McAnarney tried to pin her down as to just what pictures she +had seen. Later in the trial, Mrs. Campbell, who had accompanied +Mrs. Andrews to South Braintree on April 15th, swore that the +man under the car had “never looked up at all” and that neither +she nor her friend had spoken to him.</p> + +<p>But Mrs. Campbell wasn’t the only witness to contradict the<span class="pagenum" id="Page_81">[Pg 81]</span> +practical nurse. George W. Fay, a Quincy policeman, said that +she had told him in February that she had not seen any man’s +face that day. She had also told Alfred N. LaBreque, the secretary +of the Quincy Chamber of Commerce, the same thing. Harry +Kurlansky, a tailor whose shop was near Mrs. Andrew’s house, +remembered a conversation he had had with her when she returned +from the Dedham Jail. “The Government took me down +and want me to recognize those men,” she had complained to +him, “and I don’t know a thing about them. I have never seen +them and I can’t recognize them.” A former landlady, who readily +admitted that she didn’t like her and “wouldn’t have her in +my house again,” said that she had a “bad name” in the +community.</p> + +<p>Real estate broker Tracy, who had told the police that he had +seen Sacco standing near a Pearl Street drugstore at noon on the +day of the murders, had identified him in jail ten months later. +However, he was not prepared now to say that he was “positively” +the man. “To the best of my opinion he is the man,” he testified. +While he was “quite sure” that he was right, he was willing to +“suppose the best of people could make a mistake.”</p> + +<div class="blockquot"> + +<p>Q. Then you feel you could not be mistaken in the identity +of this man?</p> + +<p>A. I said I would not positively say he was the man; but I +wouldn’t positively say so.</p> +</div> + +<p>William J. Heron, the railroad detective, claimed that he had +seen Sacco handcuffed to a policeman near the Quincy Courthouse +some six weeks after having observed him in the South +Braintree station. He was “pretty sure” that the defendant was +the same “nervous Italian” he had watched in the waiting room. +He readily admitted that he had refused to talk to defense investigators +when they came to see him before trial. His reluctance, +he said, had been due to the fact that he didn’t want to become +involved. Besides he didn’t think that his information would be +helpful to the defense. McAnarney’s face purpled with anger.</p> + +<div class="blockquot"> + +<p>Q. You took it on yourself to determine the fact that your +evidence would hurt these defendants, didn’t you? Did +you?</p> + +<p>A. Yes, sir.</p> +</div> + +<p>The man whom Lewis Pelser had seen shoot Berardelli had<span class="pagenum" id="Page_82">[Pg 82]</span> +been wearing a “dark green pair of pants and an army shirt, +tucked up.” He would not swear that Sacco was the gunman but +insisted that “he is the dead image of the man I seen.” He had +written down the Buick’s license number but he had not seen +anyone in the car. “I was too anxious to get away,” he said, “I +was kind of scared myself.”</p> + +<p>When Moore took over, he asked the witness whether he had +been interviewed by a Mr. Reid on March 26th. Yes, he had, but +he hadn’t told him everything he knew because “I didn’t know +him well enough.” He admitted that he had told the investigator +that he hadn’t seen the murderer because he had ducked under +his workbench when the shooting started. But he insisted that he +“didn’t exactly lie to Mr. Reid.” In fact, he hadn’t even told the +District Attorney what he had seen that day until he took the +stand. Moore’s voice was heavy with disbelief.</p> + +<div class="blockquot"> + +<p>Q. You never talked to a living soul and told them what +you intended to say on the witness stand today, and told +them the truth, until you got on the witness stand.</p> + +<p>A. Yes, sir.</p> +</div> + +<p>Later, William Brenner, Peter McCullum and Dominic +Constantino, who had been working with Pelser on the first floor +of the Rice & Hutchins factory, testified for the defense that they +had not seen the latter at the window when the shooting took +place. According to the three men, everyone on the first floor had +ducked under his bench when the gunshots had shattered the +air. Constantino was sure that Pelser had not stood up until +after the murders had occurred. He remembered that Pelser had +told him that he had not been able to see any of the killers.</p> + +<p>Mary Splaine, the Slater & Morrill bookkeeper, who had +picked Sacco out in the Brockton police station as the man she +had seen leaning out of the Buick just after it roared across the +Pearl Street crossing, identified him again. “He was a man,” she +claimed, “that I should say was slightly taller than I am ... he +was an active-looking man. I noted particularly the left hand +was a good-sized hand, a hand that denoted strength.... He +had a gray, what I thought was a shirt ... and the face was what +we could call clear-cut, clean-cut face. The forehead was high. +The hair was brushed back and it was between, I should think, +two inches and two and one-half inches in length and had dark<span class="pagenum" id="Page_83">[Pg 83]</span> +eyebrows, but the complexion was a white, peculiar white that +looked greenish.” Evidently, years of poring over account books +hadn’t interfered with the witness’ eyesight because this detailed +observation had been the result of a three-second glance “from a +distance of from 60 to 80 feet.”</p> + +<p>When Moore reminded her that, at the preliminary examination +at Quincy, she had said that she was not sure that Sacco was +the man she had seen, Miss Splaine denied that she had ever made +that statement. The next day, however, she indicated that perhaps +she had indeed said that.</p> + +<div class="blockquot"> + +<p>Q. Do you wish to change any part of your testimony that +you made yesterday?</p> + +<p>A. Yes, sir.</p> + +<p>Q. What part of your testimony would you like to change at +the present time?</p> + +<p>A. That question and answer where you asked me if I possibly +identified the man, and in Quincy I said I didn’t feel I +would positively identify him. I said I didn’t say that +yesterday, but on reflection that was the answer in Quincy.</p> +</div> + +<p>In addition, she admitted that, after the shooting, she had identified +a photograph which the police had shown her as the man +she had observed leaning out of the car. She later learned that +the man in the photograph had been in New York’s Sing Sing +Prison on April 15th.</p> + +<p>When Mr. McAnarney took over from Moore, he asked the +witness whether she was sure that she had had enough time on +the day of the murders to get a good look at the defendant. “Yes, +sir, I think I did,” was her answer. The lawyer shook his head. +Hadn’t she testified in Quincy that “I don’t think my opportunity +afforded me the right to say he is the man.”? Yes, she had +made that statement. But now, she was “positive he is the man, +certain he is the man. I admit the possibility of an error, but I +am certain I am not making a mistake.” McAnarney pressed her.</p> + +<div class="blockquot"> + +<p>Q. What did you mean when you said you didn’t have +sufficient opportunity to observe him?</p> + +<p>A. Well, he was passing on the street.</p> + +<p>Q. That is the only opportunity you had?</p> + +<p>A. Yes, sir.</p> +<p><span class="pagenum" id="Page_84">[Pg 84]</span></p> +<p>Q. You have had no other opportunity but that fleeting +glance?</p> + +<p>A. The remembrance of that.</p> +</div> + +<p>She hadn’t seen Sacco since the Quincy hearing on May 26, 1920, +but, even without “any further examination of him,” she had +changed her mind and now believed that he was the man.</p> + +<p>Frances J. Devlin, another Slater & Morrill bookkeeper, who +worked in the same room with Miss Splaine, had seen a man +in the back of the Buick fire into the crowd that had developed +around Parmenter and Berardelli. “He was a dark man,” she +recalled, “and his forehead, the hair seemed to grow away from +the temples, and it was brown-black and he had clear features, +rather clear features, and rather good looking, and he had a +white complexion and a fairly thick-set man, I should say.” She +had identified Sacco at the Brockton Police Station as looking +“very much like the man that stood up in the back seat shooting.” +She was far more definite when Katzmann asked her to look +around the courtroom and “see if you see that man.” She pointed +to the steel cage in which the two defendants were sitting and +said, “The man on the inner side as you go out.”</p> + +<div class="blockquot"> + +<p>Q. The man who is smiling?</p> + +<p>A. Yes, sir.</p> + +<p>Q. That man you know is Sacco?</p> + +<p>A. Yes, sir.</p> +</div> + +<p>No, there had never been any doubt in her mind “at any time” +that the defendant was the man she had seen.</p> + +<p>Yet, a year earlier she had testified in Quincy that she couldn’t +say “positively” that Sacco was the gunman she had witnessed. +But she had a ready answer for the seeming conflict in her testimony. +“At the time there I had in my own mind that he was the +man, but on account of the immensity of the crime and everything, +I hated to say right out and out. I knew he was the man +and still I didn’t want to say knowing as I knew it would be a +deliberate lie, according to my own mind, but still I hated to say +right out and out, so I just put it that way.” She had also sworn +in Quincy that short, stocky Sacco was “a man who seemed as +though he was a big man to me.”</p> + +<p>Victrola salesman Carlos E. Goodridge was certain that Sacco +was the man who had waved a gun at him when the black<span class="pagenum" id="Page_85">[Pg 85]</span> +Buick raced by Magazu’s pool parlor on lower Pearl Street. He +remembered the defendant as “a dark complexioned fellow with +dark hair and he had ... a kind of peculiar face, that came down +pointed.” When McAnarney tried to find out whether Goodridge +wasn’t having his own problems with the law, Judge Thayer +intervened. “You can’t attack any witness’ credibility,” he observed, +“except by showing a record of conviction.” The jury was +never to learn that the salesman had recently pleaded guilty to +larceny and had been placed on probation.</p> + +<p>Goodridge’s testimony conflicted sharply with that of Harry +Arrogani, a South Braintree barber. Five or six days after the +murders, Goodridge had told the barber that he had seen “a man +in the car but if I have got to say who the man was, I can’t say.” +Peter Magazu, the owner of the pool room, said that Goodridge +had described the man who had pointed the gun at him as a +“young man with light hair, light complexion.” Andrew Manganio, +Goodridge’s sales manager, later testified that his pool-playing +employee had refused to identify the defendants in jail +because he had been so frightened by the gun that “he could not +possibly remember the faces.”</p> + +<p>Drs. George B. Magrath and Nathaniel S. Hunting had conducted +the autopsies on the two murdered men. Four bullets were +found in Berardelli’s body and two in Parmenter’s. As each +bullet was removed, the physicians had scratched a Roman numeral +in its base. The one which had caused Berardelli’s death, a +.32-caliber Winchester, was marked No. III. At the trial, Captain +William H. Proctor, the ballistics expert for the Massachusetts +State Police, testified that all but the No. III shell had been +fired through a Savage automatic pistol.</p> + +<p>When Sacco was searched at the Brockton police station, a +“.32 Colt automatic,” which was to become Katzmann’s Exhibit +28, was found in his belt. Proctor said that he had conducted tests +on the fatal bullet and the defendant’s gun. As a result of his +investigation, he was prepared to say that No. III was +“consistent with being fired by that pistol.” As for the other +five bullets, his opinion was that they had not been fired from +Sacco’s Colt.</p> + +<p>Captain Proctor’s opinion was shared by Charles Van Amburgh, +an assistant in the ballistics department of the Remington<span class="pagenum" id="Page_86">[Pg 86]</span> +Arms Company. He also had examined the fatal bullet and +Sacco’s pistol.</p> + +<div class="blockquot"> + +<p>Q. Have you formed an opinion ... as to whether or not +No. III bullet was fired from that particular Colt automatic?</p> + +<p>A. I have an opinion.</p> + +<p>Q. And what is your opinion?</p> + +<p>A. I am inclined to believe that it was fired, No. III bullet +was fired, from this Colt automatic pistol.</p> +</div> + +<p>He had reached this conclusion after comparing the No. III +bullet with six test shots which he and Captain Proctor had +fired into oiled sawdust at Lowell, Massachusetts. “My measurement +of rifling marks on No. III bullet as compared with the +width of the impressions which I have taken of No. III or of this +particular barrel,” he explained, “together with the measurements +of the width or dimension of rifling marks in bullets +recovered ... in Lowell, inclines me to the belief.” In addition, +he had observed marks on No. III which he thought were caused +by pitting in the groove of Sacco’s Colt.</p> + +<p>James E. Burns, an expert marksman who had been employed +by the United States Cartridge Company for more than thirty +years, contradicted the prosecution’s experts. He, too, had examined +the fatal bullet, and he was convinced that it had not +been fired from Sacco’s gun.</p> + +<div class="blockquot"> + +<p>Q. ... on what do you base that opinion?</p> + +<p>A. On the 11 bullets that I examined that were fired from the +Sacco gun. It doesn’t compare with them at all.</p> +</div> + +<p>The Colt’s barrel had shown “a clean-cut lead all the way +through.” There wasn’t a particle of doubt in his mind that No. +III had not been fired “from a gun that had a clean lead.”</p> + +<p>J. Henry Fitzgerald, the director of the testing room at the +Colt Firearms Company, agreed with Burns that No. III “was not +fired from the pistol given to me as Exhibit 28.” He had examined +three bullets which had been fired by Mr. Van Amburgh +at Lowell and, “the land marks of the No. III bullet do not +correspond, in my best judgment, to bullets I have seen fired +from this pistol.” Like Burns, he had been unable to find any +distinctive pittings in the groove of Sacco’s gun.</p> + +<p>The cap which Fred L. Loring had found lying near Berardelli’s<span class="pagenum" id="Page_87">[Pg 87]</span> +body had been turned over to Thomas F. Fraher, Slater & +Morrill’s superintendent. Katzmann called George T. Kelley, +Sacco’s foreman at the 3-K Shoe Factory, who testified that the +defendant often wore a cap to work. “There were times that he +wore a cap,” Kelley said, “There was other times he wore a hat.” +As to the former, he could remember only that it had been “a +dark cap ... of a salt and pepper design.” He was unable to +recall whether the cap he had seen hanging on a nail near +Sacco’s workbench had earlaps or not.</p> + +<p>When the defense objected to the introduction of the cap on +the ground that it had not been sufficiently identified as belonging +to Sacco, Judge Thayer ordered Mr. Williams to ask Kelley +whether “that cap ... is like the one that was worn by the defendant +Sacco?” “In color only.” the witness replied.</p> + +<div class="blockquot"> + +<p>THAYER: That is not responsive to the question. I wish you +would answer it, if you can.</p> + +<p>KELLEY: I can’t answer it when I don’t know right down in +my heart that that is the cap.</p> + +<p>THAYER: In its general appearance, is it the same?</p> + +<p>KELLEY: Yes, sir.</p> +</div> + +<p>Thayer promptly admitted the cap into evidence as the Commonwealth’s +Exhibit 29.</p> + +<p>After Sacco’s arrest, Lieutenant Daniel T. Guerin had visited +his home and found another cap in the kitchen. Later in the +trial, when Kelley was recalled as a witness for the defense, he +was shown this second cap. He said that he thought that the cap +the policeman had found looked more like the one he had seen the +defendant wearing than did Exhibit 29. On cross-examination, +Katzmann asked him if he hadn’t told the police when they interviewed +him about the cap that “I have an opinion ... but I +don’t want to get a bomb up my ass.” Kelley admitted that he +“might have said it when they drove off, but not at the time when +they showed me the cap.”</p> + +<div class="blockquot"> + +<p>Q. Was that in reference to the cap?</p> + +<p>A. Yes.</p> +</div> + +<p>Later in the trial, when Katzmann cross-examined Sacco, he +asked him to put Exhibit 29 on his head. According to the <i>Boston +Herald</i>, “It stuck on the top of his head and he turned with a<span class="pagenum" id="Page_88">[Pg 88]</span> +satisfied air to let the jury see.” He then explained to the District +Attorney that the cap was “too tight” to fit properly.</p> + +<div class="blockquot"> + +<p>Q. You are sure of that?</p> + +<p>A. I am pretty sure. I can feel it.</p> +</div> + +<p>He denied that the cap was his and his wife subsequently testified +that her husband “never wore caps with anything around for his +ears, never, because he never liked it and because, besides that, +never, he never wore them because he don’t look good in them, +positively.”</p> + +<p>Mrs. Simon Johnson said that, after her husband had gone to +bed on May 5th, Boda had knocked on her front door and asked +her whether he could pick up his Overland car. When she +awakened her husband, he had told her to go next door to Mrs. +Bartlett’s and telephone the police. She had walked over to her +neighbor’s house and called Chief Stewart. Although there was +no street light near her home, the area had been illuminated by +the headlight of a motorcycle which she noticed was parked in +the street. Two strange men who were standing in the vicinity of +the vehicle, seemed to follow her when she left to make her call. +Ten minutes later, when she was walking back from Mrs. Bartlett’s, +she saw the same men who appeared to be “walking along” +with her. She was sure that Sacco was one of the men who had +tailed her that night.</p> + +<p>When she had testified in the earlier trial of Vanzetti at Plymouth, +Mrs. Johnson had not been so confident of her identification +of the men who had followed her. Then she had been certain +that she “did not know who they were or whether they were the +same men or not.” Now, she was prepared to say that “one of +them” was the same man.</p> + +<div class="blockquot"> + +<p>Q. ... do you want to say that you recognized Sacco before +you went into the Bartlett house?</p> + +<p>A. I would know him if I saw him again.</p> + +<p>Q. I submit it is not an answer to the question.</p> + +<p>THE COURT. Can you answer it, Mrs. Johnson, by Yes or +No?</p> + +<p>A. Yes.</p> + +<p>Q. Then by that I assume that you mean you did recognize +him before you went into the Bartlett house?</p> + +<p>A. Before I did, yes.</p> +</div> + +<p><span class="pagenum" id="Page_89">[Pg 89]</span></p> + +<p>The witness’ husband told a somewhat different story. At no +time, had either of the strange men been illuminated by the +beams of the motorcycle’s light. While he had not watched his +wife walk over to the Bartlett’s, he had seen her on the return +trip. At that time, he was sure that, with the exception of Boda, +all the strangers were standing near the cycle. He had told Boda +that he couldn’t have the car that night because “there were no +1920 number plates on it.” The latter had replied that “I will +send somebody for it tomorrow,” but no one had ever called for +the car.</p> + +<p>Michael J. Connolly and Earl J. Vaughan, two Brockton policemen, +had arrested the defendants on the North Elm Street trolley +later that evening. Connolly was the first officer to board the car. +“... I went down through the car,” he said, “and when I got +opposite the seat I stopped and I asked them where they came +from. They said, ‘We went down to see a friend of mine.’ I said, +‘Who is your friend?’ He said ‘A man by the —— they call him +‘Poppy.’ ‘Well,’ I said, ‘I want you, you are under arrest.’”</p> + +<p>According to Connolly, Vanzetti, who had been sitting on the +seat nearest the window, put his hand in his hip pocket. The +policeman had shouted, “Keep your hands out on your lap, or +you will be sorry!” When the two defendants asked him why +they were being arrested, he had told them that they were +“suspicious characters.” Vaughan then boarded the car and +Connolly ordered Vanzetti to stand up so that the latter could +“fish” him. He himself gave Sacco “a slight going over ... did +not go into his pockets.”</p> + +<div class="blockquot"> + +<p>Q. Was anything found on either man at that time?</p> + +<p>A. There was a revolver found on Vanzetti.</p> +</div> + +<p>The two suspects were then transferred to a police car which +was waiting alongside the tracks. Connolly “put Sacco and Vanzetti +in the back seat ... and Officer Snow got in the back seat +with them. I took the front seat with the driver, facing Sacco and +Vanzetti.” During the trip to the Brockton station house, Connolly +noticed that Sacco “reached his hand to put under his overcoat +and I told him to keep his hands outside of his clothes and +on his lap.” When he asked the defendant, “Have you got a gun +there?,” the latter had replied, “No, I ain’t got no gun.” Merle A. +Spear, the driver of the car, swore that he had heard this conversation<span class="pagenum" id="Page_90">[Pg 90]</span> +and that Sacco had answered, “You need not be afraid of +me.” Later that evening, a Colt revolver had been found in +Sacco’s pocket.</p> + +<p>Chief Stewart had arrived at the police station shortly after +eleven o’clock that night. The two prisoners told him much the +same story that they had related to Connolly. They insisted that +they had gone to West Bridgewater to see a friend named Poppy +but denied any knowledge of Boda or Orciani’s motorcycle. +Sacco thought that they had left his house at 6:30 that day while +Vanzetti was sure that they had started out three hours earlier. +Sacco claimed that he had purchased his Colt in Hanover Street +in Boston many months before his arrest.</p> + +<p>On June 22nd, after fifty-nine witnesses had testified for the +prosecution, Katzmann informed Judge Thayer that “We believe +we have nothing further to offer ... the Commonwealth rests, if +your Honor please.” Following Callahan’s opening statement, the +defense promptly called Frank J. Burke, the glassblower who had +watched the Buick race over the Pearl Street crossing after the +murders. He had gotten a good look at its passengers and he was +certain that neither defendant had been in the car. “I would say +they were not,” he said. But on cross-examination, Katzmann +succeeded in showing that the witness had such poor eyes that he +had thought that Mr. Callahan’s Hudson in which he had been +driven to the courthouse that very morning was a Buick.</p> + +<p>Mrs. Barbara Liscomb, the Rice & Hutchins employee who had +fainted when one of the gunmen pointed his pistol at her, +“would always remember his face.” When she had been taken to +the Brockton police station, she had been unable to identify +either defendant.</p> + +<div class="blockquot"> + +<p>Q. And you have looked at these men in the dock?</p> + +<p>A. I have.</p> + +<p>Q. Are either of the men in the dock the man you saw pointing +the revolver at your window?</p> + +<p>A. No, sir.</p> +</div> + +<p>She was “positively sure” that she had never seen either Sacco or +Vanzetti before.</p> + +<p>Jennie Novelli, a nurse, who, some ten minutes before the +shooting, had seen the Buick proceeding slowly up Pearl Street in +the direction of the Rice & Hutchins plant, said the man who<span class="pagenum" id="Page_91">[Pg 91]</span> +had been sitting next to the driver was not Sacco although she had +previously told a detective that a photograph of the defendant +“resembled” the man she had seen in the car. Albert Frantello insisted +that the defendants were not the men he had noticed leaning +against the Rice & Hutchins fence before the murders. None +of the laborers at the restaurant excavation or the railroad employees +who had been repairing tracks at the Pearl Street crossing +could say that they had seen Sacco or Vanzetti in the vicinity of +the crime. In all, some two dozen eyewitnesses testified that they +had not seen either defendant in South Braintree on April 15, +1920.</p> + +<p>Vanzetti was the first of the two defendants to take the stand. +As far as the day of the murder was concerned, he insisted, in +broken English, that he had not left Plymouth. In the morning, +he had been “selling fish from a cart” on Castle and Cherry +Streets. Some time during the morning, he had asked Joseph +Rosen, a peddler, to accompany him to the home of Mrs. Alphonsine +Brini so that she could look at a piece of cloth which Rosen +wanted to sell to him. Vanzetti thought that this had taken place +“near one o’clock, about half past eleven, something like that, +half past twelve, about one o’clock.”</p> + +<p>After he had sold all his fish, the defendant had visited Melvin +Corl, a friend of his, who was painting his boat. He had had a +long conversation with Corl—about an hour and a half—during +which time he had also talked to a boat builder by the name of +Frank Jesse. Then he had gone home, changed his clothes, and +eaten his supper. He could not remember what he had done after +finishing his dinner.</p> + +<p>On May 5th, he had accompanied Boda to the Johnson home +in order to pick up the latter’s car which was to be used in collecting +radical literature from the homes of some of his friends +“in five or six places, five or six towns.” The mysterious death in +New York, on May 3rd, of Andrea Salsedo, a radical with whom +he had been associated for many years, had convinced him that he +should “get the books and literature to put at some place and +hide not to find by the police or the state.” He had not told the +police about his plans for that night “because in that time there, +there was the deportation and the reaction was more vivid than +now and more mad than now.”</p> + +<p><span class="pagenum" id="Page_92">[Pg 92]</span></p> + +<p>He readily admitted that he had lied to Stewart when the +police chief had questioned him after his arrest. “I was afraid,” +he said, “he went into the house of the people that they named +and found some literature or paper and arrested the men ... I +was scared to give the names and addresses of my friends as I +knew that almost all of them have some books and some newspapers +in their house by which the authorities take a reason for +arresting them and deport them.” His fears had been aggravated +by the fact that Officers Connolly and Vaughan had refused to +tell him why he was being taken into custody.</p> + +<div class="blockquot"> + +<p>Q. What did they say what you were arrested for?</p> + +<p>A. They say, ‘Oh, you know, you know why.’ And when I +try to sleep in the cell, there is no blanket, only the wood. +Then we called for the blanket, because it was rather cool. +They say, ‘Never mind, you catch warm by and by, and +tomorrow morning we put you in a line in the hall between +the chairs and we shoot you.’</p> +</div> + +<p>In fact, during the night, one of his jailers had spit in his face +and threatened him with a revolver.</p> + +<p>Vanzetti also conceded that he had lied to Katzmann when the +District Attorney had questioned him about the price he had +paid for his revolver, the number of times he had visited Boston +overnight, and his acquaintance with Boda. Again he based his +reluctance to tell the truth on his desire to shield his friends. “I +intend to not mention the name and house of my friends” he +explained.</p> + +<p>Joseph Rosen testified that he had sold Vanzetti several pieces +of cloth at noon on April 15th. Mrs. Brini remembered that she +had seen the defendant selling fish that morning and that he and +Rosen had come to her house to get her opinion as to the worth +of some swatches of material. Her daughter, LeFavre, had also +seen the fish peddler on both occasions. At noon, Angel T. +Guidobone, a rug worker, had purchased some codfish from Vanzetti. +Melvin Corl recalled that the defendant had visited him +when he was painting his boat, and Frank Jesse stated that he +had talked to Vanzetti about an automobile while they were +watching Corl at work.</p> + +<p>Sacco confirmed Vanzetti’s testimony that both men had told +falsehoods because they were afraid that they had been arrested<span class="pagenum" id="Page_93">[Pg 93]</span> +for their radical activities. Since the police had not informed +them of the nature of the charges against them, he had been +convinced that he and Vanzetti had been picked up because they +had been working “for the movement for the working class, for +the laboring class.” In fact, one of the first things Stewart had +asked him was whether he was a Socialist.</p> + +<div class="blockquot"> + +<p>Q. When he asked you what you were in Bridgewater for, +did you give him a true reason for being there?</p> + +<p>A. No, sir, because I was afraid to arrest us, they arrest somebody +else of the people....</p> +</div> + +<p>Like Vanzetti, he freely admitted that he was a Socialist who +did not believe in war. After the United States entered the war +in 1917, both he and his co-defendant had run away to Mexico to +avoid the draft. Sacco had returned to Massachusetts several +months later under an alias and had not resumed his real name +until after the war ended. As he put it, “What right do we have +to kill each other? I don’t believe in no war. I want to destroy +those guns.” He loved his adopted country, but his hatred of war +was greater than his devotion to an abstraction.</p> + +<p>As far as April 15th was concerned, he maintained that he had +spent the entire day in Boston. In the middle of March, he had +received a letter informing him that his mother had died in Italy. +He had decided to take his family back to the old country and +had gone to Boston on the day of the murders to have his passport +validated at the Italian Consulate. He had taken the 8:56 +train from Stoughton and, after arriving at South Station, had +walked to Hanover Street where he had met Angelo Monello, a +Roxbury contractor. Then he had gone to Boni’s Restaurant for +lunch with Felice Guadagni, the editor of an Italian journal. +The two men were later joined by John D. Williams, a space +salesman for several foreign-language newspapers, and Albert +Bosco, a <i>La Notizia</i> editor.</p> + +<p>Sacco had left Boni’s at 1:30 and gone to the consulate. He +was told by some man there that the photograph he had brought +was much too big to fit on a passport. Then he had dropped in at +a nearby coffee house where he had again met Guadagni and +Antonio Dentamore, a former newspaperman. At 3:20, after +buying some groceries at a nearby store, he had paid a debt of +fifteen dollars to a man named Affe. Then, he had caught the 4:12<span class="pagenum" id="Page_94">[Pg 94]</span> +train back to Stoughton, arriving home shortly after six o’clock.</p> + +<p>Katzmann was remorseless in his cross-examination. Why +hadn’t the defendant gone to the consulate in the morning and +taken the noon train back to Stoughton? “Well, I think to pass +all day when I been in Boston,” was the reply. Hadn’t he lied to +George Kelley, his foreman, when he had told him “that there +was such a crowd in there you could not get your passport and +the place closed and you missed the noon train for that reason?” +Yes, he had lied to Mr. Kelley. He also hadn’t told the truth at +Brockton when he claimed that he had worked on the fifteenth. +“I was not sure,” he explained, “There was not interest to me +very close to find out the date I have been out.”</p> + +<p>A bevy of witnesses paraded to the stand to buttress Sacco’s +alibi. Dominick Ricci said that he had seen the shoemaker early +on the morning of the fifteenth at the Stoughton railroad station. +At eleven a.m., Angelo Monello had passed the time of day with +him in East Boston. Guadagni, Williams and Bosco verified the +lunch at Boni’s. According to an affidavit submitted by Guiseppe +Andrower, the former passport officer at the Italian consulate, +Sacco had come to his window at two p.m. and shown him a +photograph which the official had said was too large for a passport. +“April 15th, 1920, was a very quiet day,” he swore, “and +since such a large photograph had never been before presented +for use on a passport, I took it in and showed it to the Secretary +of the Consulate. We laughed and talked over the incident.”</p> + +<p>At 2:45, at Giordani’s coffee house, the defendant had complained +to Dentamore that he would have to go to the expense +of having another picture taken for his passport. Carlos M. Affe +remembered that Sacco had dropped in at his grocery store between +three and four o’clock to pay an outstanding bill of $15.50. +Mrs. Sacco, who testified through an interpreter, knew that her +husband had gone to Boston on the 15th because that was the +day she had been visited by Henry Iacovelli, a friend from Milford. +Mr. Iacovelli confirmed that he had indeed called at the +Sacco home that day.</p> + +<p>As for their guns, each defendant had an explanation. Vanzetti +claimed that he had bought his for five dollars from a friend +named Luigi Falzini in early 1920 because “it was a very bad +time and I like to have a revolver for self defense.”</p> + +<p><span class="pagenum" id="Page_95">[Pg 95]</span></p> + +<div class="blockquot"> + +<p>Q. What do you mean ‘It was a bad time?’</p> + +<p>A. Bad time, I mean it was many crimes, many holdups, many +robberies.</p> +</div> + +<p>Sacco maintained that he had gotten into the habit of carrying a +gun when he had worked as a night watchman at the 3-K Shoe +Factory. On the day he was arrested, he and Vanzetti had planned +“to go to shoot in the woods” but had not done so because “we +started an argument and I forgot....”</p> + +<p>On July 14th, after Judge Thayer had delivered his charge +from a flower-bedecked bench, the jury retired. Some seven hours +later, it filed back into the courtroom. When Clerk Worthington +asked if it had reached a verdict, Foreman Walter R. Ripley +announced that it had. He and his colleagues had found each +defendant guilty of murder in the first degree. Thayer was happy +to express the Commonwealth’s gratitude for “the service that +you have rendered. You may now go to your homes, from which +you have been absent for nearly seven weeks.” As the twelve men +hurried to take his Honor’s welcome advice, Sacco shouted, “They +kill an innocent man! They kill two innocent men!”</p> + +<p>His prophecy was somewhat premature. On November 5th, a +motion for a new trial on the ground that the verdict was against +the weight of evidence was argued before Thayer. It was denied +on the day before Christmas. As far as the judge was concerned, +he would not “announce to the world that these twelve jurors +violated the sanctity of their oaths, threw to the four winds of +bias and prejudice their honor, judgment, reason and conscience, +and thereby abused the solemn trust reposed in them by the +law as well as the Court.” If any errors had been committed during +the trial, no one would be happier than he if the Supreme +Judicial Court corrected them. “But until that time comes,” he +said, “so far as these motions are concerned, the verdicts of the +jury must stand.”</p> + +<p>Before Thayer’s decision, Jeremiah McAnarney had learned +that, during the trial, Foreman Ripley had exhibited some .38-caliber +cartridges to other members of the jury. Unfortunately, +Ripley died before the lawyer could obtain a statement from him. +However, two of his fellow jurors admitted that they had seen +the bullets and, on the strength of this, the defense attorneys +filed the first of six supplementary motions for a new trial. In<span class="pagenum" id="Page_96">[Pg 96]</span> +their briefs, they argued that it was improper for the jurors to +have considered any but legitimate exhibits.</p> + +<p>To buttress their position that Ripley was hopelessly prejudiced +against the defendants, their lawyers submitted an affidavit +by William H. Daly, a good friend of the ex-foreman, who +stated that he had run into him at a railroad station several days +before the trial. When Daly had expressed some doubt as to +whether Sacco and Vanzetti were guilty, Ripley had replied, +“Damn them, they ought to hang them anyway.” The prosecution +offered no evidence to contradict the Daly affidavit.</p> + +<p>In early October of 1921, Frank J. Burke, the glassblower who +had testified for the defense, ran into Roy E. Gould in Portland, +Maine. The razor paste peddler had never been called as a witness +despite the fact that he had given his name to the police. +When the black Buick had driven by him, he had gotten a good +look at its occupants. According to his sworn statement, which +Moore used as the basis of his second supplementary motion, +“the man that he saw at South Braintree on April 15, 1920, at or +about the hour of three o’clock in the afternoon, riding in the +bandit car, front seat, on the right-hand side of the driver, is not +the man that he saw in the Dedham County Jail, and who was +pointed out to him as Nicola Sacco.” As far as Vanzetti was concerned, +he had seen photographs of the condemned man and “he +in no sense resembles the man affiant saw at South Braintree on +April 15th, 1920.”</p> + +<p>On February 4, 1922, Lewis Pelser admitted in writing to +Moore that he had perjured himself at the trial. His original +statement to a defense investigator that he hadn’t seen anyone in +the bandits’ car because he had been huddling under his workbench +was, he now admitted, the true story. Pelser’s retraction +was made part of the Gould motion. However, several days later, +he wrote a letter to Katzmann in which he claimed that he had +been drinking “pretty heavy” when Moore interviewed him. “He +asked me one question and other,” he wrote, “and finally had my +whole story contradicted what I had said at the Dedham Court.” +He had decided to write to the District Attorney because he was +“worried at the way they have framed me up and got me into +trouble.”</p> + +<p>Moore’s third motion was based on the fact that Carlos Goodridge,<span class="pagenum" id="Page_97">[Pg 97]</span> +the Victrola salesman who had rushed out of Magazu’s +poolroom just as the Buick drove by, had not used his right name +at the trial. Furthermore, the lawyer alleged that Goodridge had +twice been convicted of theft in New York and that, when he +testified, he was a fugitive from a third indictment. In opposing +Moore’s motion, Katzmann introduced an affidavit from the +salesman, admitting most of the defense’s contentions, but insisting +that his testimony had been accurate.</p> + +<p>On September 11, 1922, Moore filed a fourth motion. Two days +earlier, Lola Andrews had signed an affidavit in which she repudiated +the testimony she had given at Dedham, claiming that +she had been coerced by the District Attorney and the police. +Now, she was prepared to state that “each and every part of her +testimony ... wherein she identified the said Nicola Sacco as the +person that she had seen on April 15, 1920, is false and untrue.” +To the best of her knowledge, she had never seen the defendant +until he was pointed out to her in the Dedham County Jail.</p> + +<p>Four months later, Mrs. Andrews retracted this repudiation. +She told Katzmann that Moore and his associates had threatened +to prosecute her and her son if she did not sign a statement which +indicated “that I had told a lie, that I did not at any time see +Sacco at South Braintree.” She would never have signed the +paper if her son hadn’t put his arm around her and said, +“Mother, sign this paper and have an end to all this trouble, for +you did not recognize these men, and you will be doing a terrible +wrong if you send those men to the chair.” She now maintained +that she had told the truth at Dedham.</p> + +<p>In April of 1923, Albert H. Hamilton, a well-known criminologist, +who had testified in more than 165 murder trials, examined +all the exhibits in the case. He came to the conclusion that the +fatal bullet had not been fired from Sacco’s gun. He was supported +in his thesis by a member of the faculty of the Massachusetts +Institute of Technology. In opposing this motion—the defense’s +fifth—Katzmann submitted affidavits by several arms +experts, disputing Hamilton’s claims.</p> + +<p>As an adjunct to the Hamilton motion, William G. Thompson, +who had come into the case in 1923, filed an affidavit by William +H. Proctor. Captain Proctor, who had testified for the Commonwealth +that Bullet III was “consistent with” having been fired<span class="pagenum" id="Page_98">[Pg 98]</span> +from Sacco’s pistol, now explained that he had meant to say only +that it was “fired from a Colt automatic pistol of .32-caliber.” +He insisted that he had “repeatedly” told Katzmann that he +could not swear that the “so-called mortal bullet ... passed +through Sacco’s pistol.” “Had I been asked the direct question,” +he stated, “whether I had found any affirmative evidence whatsoever +that this ... bullet had passed through this particular +Sacco’s pistol, I should have answered then, as I do now without +hesitation, in the negative.”</p> + +<p>After hearing argument on all these motions, Thayer denied +each one on October 1, 1924. He did not feel that the “mere +production” of Ripley’s cartridges in the jury room had in any +way prejudiced the defendants and, besides, he was unwilling to +“blacken the memory” of the dead juror. As far as Gould was +concerned, he was convinced that the razor paste salesman must +have been mistaken. He disposed of the Pelser retraction by +blaming it on an excess of liquor. The motion attacking Goodridge’s +veracity because of a previous criminal record was a “bold +and cruel attempt to sandbag Goodridge by threatening actual +arrest” which he could only attribute to Mr. Moore’s “over-enthusiastic +interest in his client’s cause.” Lastly, Mrs. Andrews’ +repudiation had been procured by duress, Hamilton’s opinion +was unconvincing, and, if Captain Proctor had really believed +that the fatal bullet did not come from Sacco’s gun, he had had +ample opportunity at the trial to make himself clear.</p> + +<p>After Judge Thayer’s decision, all of the defense attorneys +except Thompson withdrew from the case. On May 12, 1926, the +five-judge Supreme Judicial Court of Massachusetts, in a sixty-page +opinion, affirmed the trial judge’s denial of the various +motions. Two weeks later, Thompson filed another application +for a new trial, this time based on the admission by one Celestino +F. Medeiros, a convicted murderer, who had sent a note to Sacco +in jail in which he confessed that he had participated “in the +South Braintree shoe company crime and Sacco and Vanzetti was +not in said crime.”</p> + +<p>Although Medeiros would not name the men who had been +associated with him in the Slater & Morrill holdup, he was willing +to reveal every other aspect of the crime. He had met the +four other members of the gang in a Providence saloon and they<span class="pagenum" id="Page_99">[Pg 99]</span> +had driven to Randolph in a Hudson which they exchanged for +a Buick in some woods outside of town. Then they proceeded to +South Braintree, killed Parmenter and Berardelli, and drove +back to the woods where they abandoned the Buick and raced +back to Providence in the Hudson. Medeiros’ role during the +holdup was to sit in the rear of the Buick with a gun and “help +hold back the crowd in case they made a rush.”</p> + +<p>Despite all of Thompson’s astuteness, Medeiros would not +name any names. The most the lawyer could get from him was +the fact that the gang had been composed of Italians who “had +been engaged in robbing freight cars in Providence.” At the time +of the South Braintree murders, a group of criminals known as +the Morelli gang had been hijacking freight cars throughout +New England. In fact, on April 15, 1920, several of its members +were out on bail awaiting trial for stealing shoes which had been +consigned by both Slater & Morrill and Rice & Hutchins. +Medeiros’ descriptions of his confederates fitted the known members +of the Morelli group.</p> + +<p>Although Felix Frankfurter was convinced that Medeiros, +who maintained that he had confessed because “I seen Sacco’s +wife come up here with the kids and I felt sorry for the kids,” +was telling the truth, Judge Thayer felt otherwise. As far as he +was concerned, Medeiros was unworthy of belief because he was +“a crook, a thief, a robber, a liar, a rum-runner, a ‘bouncer’ in a +house of ill-fame, a smuggler, and a man who has been convicted +and sentenced to death for ... murder.” If Medeiros was so +eager to save two men whom he claimed were innocent, why +didn’t he reveal the names of the other men who had supposedly +participated in the Slater & Morrill caper? Furthermore, he felt +that Medeiros’ haziness as to certain details of the crime clearly +indicated that he had not been there.</p> + +<p>On April 5, 1927, Thayer’s denial was affirmed by the appellate +court. Four days later, the two defendants were brought before +him for sentencing. After both men had made statements affirming +their innocence, Thayer ordered that they “suffer the punishment +of death by the passage of a current of electricity through +your body within the week beginning on Sunday, the tenth day +of July, in the year of our Lord, one thousand, nine hundred and +twenty-seven.” As the judge was intoning the death sentence,<span class="pagenum" id="Page_100">[Pg 100]</span> +Sacco interrupted to shout, “You know I am innocent. That is +the same words I pronounced seven years ago. You condemn two +innocent men.”</p> + +<p>On May 3rd, Vanzetti wrote to Governor Alvan T. Fuller, on +behalf of Sacco and himself, requesting clemency. Fuller’s response +was to appoint an Advisory Committee composed of President +Abbott Lawrence Lowell of Harvard, President Samuel W. +Stratton of M. I. T. and Probate Judge Robert Grant, to investigate +the evidence against the condemned men. Because the three-week +hearing didn’t begin until July 1st, the executions were +postponed for one month. On July 27th, the committee’s members +reported to the governor that they had “seen no evidence sufficient +to make them believe that the trial was unfair.” One week +later, Fuller stated that he had found “no sufficient justification +for executive intervention.” “I believe with the jury,” he said, +“that these men, Sacco and Vanzetti, were guilty and that they +had a fair trial.”</p> + +<p>Since the executions were scheduled for August 10th, a variety +of petitions and motions were filed with everyone from Judge +Thayer to Mr. Justice Oliver Wendell Holmes, all without success. +In order to give the defense time to appeal several of these +denials to the Supreme Judicial Court, Fuller granted a reprieve +until August 22nd. Two days earlier, petitions for certiorari +were filed with the clerk of the United States Supreme Court but +Justices Holmes, Brandeis, Stone and Taft refused to halt the +executions. As Holmes put it, “I cannot say that I have a doubt +and therefore I must deny the stay.”</p> + +<p>At 12:19 on the morning of August 23, 1927, Sacco died in the +electric chair at Charlestown State Prison. Seven minutes later, +he was joined in death by his friend Vanzetti who wished “to +forgive some people for what they are doing to me.” Perhaps the +several thousand people who milled around the prison that torrid +August night could take some small measure of comfort from +Vanzetti’s remarks to a newspaper reporter on the seventh anniversary +of the South Braintree shooting: “If it had not been for +these things, I might have lived out my life, talking at street +corners to scorning men. I might have died, unmarked, unknown, +a failure. Now, we are not a failure. This is our career and our +triumph. Never in our full life can we hope to do such work for<span class="pagenum" id="Page_101">[Pg 101]</span> +tolerance, for justice, for man’s understanding of man, as now +we do by an accident. Our words, our lives, our plans, nothing! +The taking of our lives, lives of a good shoemaker and a poor +fish peddler—all. That last moment belongs to us. That agony +is our triumph.”</p> +<hr class="full"> + +<div class="chapter"> +<p><span class="pagenum" id="Page_102">[Pg 102]</span></p> + +<h2 class="nobreak" id="c7">5</h2> +</div> + +<p class="u large"><i>He Defied the Bible</i></p> + +<p class="c xlarge">The State of Tennessee</p> + +<p class="c xlarge"><i>versus</i></p> + +<p class="c xlarge">John Thomas Scopes</p> + + +<p>Macon County was, in 1925, one of Tennessee’s most rural +areas. Without a single mile of railroad track, its almost unbroken +stretches of farmland were tilled by a God-fearing, Bible-reading +population whose sole contact with the outside world +consisted of weekly visits to LaFayette, the tiny county seat. Its +representative in the lower house of the state legislature was one +John Washington Butler, a combination farmer-school teacher, +who worked 120 acres just outside of LaFayette.</p> + +<p>Butler had first run for election in 1922 on a platform that +stressed the need for a law prohibiting the teaching of evolution +in the public schools of Tennessee. During his first term, he +was evidently much too engrossed with finding his way around +Nashville to do any legislating, but he assured his constituents +that, if they sent him back for a second stint, he would find the +time to push an anti-evolution bill. The good people of Macon +County believed him and, in November of 1924, he was resoundingly +reëlected to the House of Representatives.</p> + +<p>When he returned to the capital the following January, he lost +no time in living up to his campaign promise. He drafted a +statute that would make it unlawful for any public school +teacher “to teach any theory that denies the story of the Divine +Creation of man as taught in the Bible, and to teach instead that +man has descended from a lower order of animals.” The penalty +was a fine ranging between one hundred and five hundred<span class="pagenum" id="Page_103">[Pg 103]</span> +dollars. Butler threw his bill into the legislative hopper, saw that +it reached the floor of the House, and then promptly washed his +hands of it.</p> + +<p>By all odds, the proposed legislation should have died aborning. +But with surprisingly strong Baptist support, it carried the +lower house on January 28, 1925 by a vote of 71 to 5. The next +day, Williams Jennings Bryan, who had been fighting Darwinism +up and down rural America, roared into Nashville with his +rhetorical “Is the Bible True?” harangue. Every word of it was, +he assured his enthusiastic audience, some of whom were so +carried away by his oratory that they printed his speech and +sent it to each member of the legislature. Six weeks later, the +Butler Act skipped handily through the Senate by a vote of 24 +to 6. On March 21st, a skeptical Governor Austin Peay signed it +into law because he was convinced that it would never be “an +active statute.” He couldn’t have been more mistaken.</p> + +<p>Up in New York, Roger Baldwin, the director of the struggling +American Civil Liberties Union, read a report of the new statute +in a Tennessee newspaper. He sent a press release to the Memphis, +Chattanooga and Knoxville papers, announcing that the +ACLU would gladly finance a test case against the Butler Act if +only it could find a Tennessee teacher with enough gumption to +violate the law. A month later, a mining engineer named George +W. Rappelyea, who managed the Dayton mines of the Cumberland +Coal and Iron Company, informed Baldwin that he was in +a position to arrange a test case. His offer was promptly accepted.</p> + +<p>Rappelyea, who had been raised on New York’s Third Avenue, +was, in the words of one observer, “an untidy little person +with rather ill-tended teeth.” But, from behind his horn-rimmed +spectacles, he looked out at the word with alert, questioning +eyes and the ACLU’s challenge was more than he could resist. +On May 5th, with Baldwin’s offer of financial support in his +pocket, he headed downtown to F. E. Robinson’s drugstore +where he promptly became involved with three members of the +Dayton bar in an argument over the constitutionality of the +Butler Act.</p> + +<p>At this fortuitous moment, John Thomas Scopes, a twenty-four-year-old +graduate of the University of Kentucky, who had +been doubling as science teacher and football coach at Dayton’s<span class="pagenum" id="Page_104">[Pg 104]</span> +Central High School, came into Robinson’s for his usual afternoon +soda. Here, in this bespectacled, towheaded biologist, +whose father was, according to Clarence Darrow, a man who +“brought up his family to have their own opinions and to stand +by them,” Rappelyea saw his chance to make good on his rash +promise to the ACLU. It took the rest of the afternoon to persuade +Scopes to go along with the idea but, before the drugstore +conclave broke up that evening, Rappelyea was able to +telegraph the ACLU that he had found his prospective defendant. +The next morning, he received a wire from New York: “We +will cooperate Scopes case with financial help, legal advice and +publicity.” The State of Tennessee <i>versus</i> John Thomas Scopes +was under way.</p> + +<p>Rappelyea didn’t waste any time. As soon as Scopes had consented +to be his guinea pig, he headed for the sheriff’s office +where he swore out a warrant for the young teacher’s arrest. A +deputy was sent to Robinson’s drugstore where, after waiting +patiently for Scopes to finish his third soda for the day, he +arrested him. On May 10th, three Dayton magistrates decided +that there was enough evidence that Scopes had been teaching +his students the theory of evolution to hold him for the action +of the Rhea County Grand Jury which was scheduled to convene +early in August. Bail was set at $1000 and it was promptly +posted by the ACLU.</p> + +<p>To the merchants of Dayton, the impending trial was a bonanza +of no mean proportions. It was sure to fill Main Street with +thousands of curiosity seekers who could be counted on to leave +many a sawbuck behind them. But more than that, if Dayton +was ever to get on the map, this was its main chance. For years +it had been going downhill as Chattanooga, its neighbor to the +southwest, had grown by leaps and bounds. With a monkey +matched against the Bible in the newly painted brick courthouse +that sat on a two-acre plot off Market Street, there was no +telling what might be in store for the town.</p> + +<p>But there was one disturbing cloud on the horizon. The possibilities +of a wide-open anti-evolution trial had not been lost on +Chattanoogans who began to press the city’s official family to +get the jump on Dayton. Judge John T. Raulston, of the Eighteenth +Circuit Court, who was slated to preside at the Scopes trial,<span class="pagenum" id="Page_105">[Pg 105]</span> +spiked that one by calling a special session of the grand jury on +May 25th. After Rappelyea had been replaced by Walter White, +the Rhea County superintendent of schools, as the complaining +witness, the thirteen jurors took less than an hour to indict +Scopes whose trial was then set for Friday, July 10th. Raulston +had saved the day for the Main Street merchants who promptly +organized eager committees to scrub and paint the town into a +brightness it hadn’t known since Peter Donaldson’s blast furnace +had failed in 1913. As one reporter put it, “Dayton was +determined to be ready for its fame.”</p> + +<p>In Darrow’s opinion, “the little town of Dayton, Tenn., had +never been heard of very far away from home.” The seat of +Rhea County, it was a prosperous village of some two thousand +residents, most of whom were gainfully employed by the four or +five factories and mills that punctuated its outskirts. Every Saturday +afternoon, the Cumberland Mountain farmers flocked into +town to spend the money their wheat, tobacco and strawberry +crops had earned for them. They would park their open Model-T +Fords on the unpaved side streets and, after a snack at the +Hotel Aqua, wander in and out of the shops that filled the brick +and wooden buildings on Main and Market Streets. On Sunday +morning, almost the entire community could be found in the +nine churches whose spires gave Dayton the nearest thing to a +skyline it would ever have.</p> + +<p>However, the town was far from a hotbed of religious fanatics. +Although theology was always a lively subject on its shady street +corners, the average Daytonian was not one to lose his head over +sacerdotal differences of opinion. But its ministers didn’t share +their parishioners’ equanimity on matters spiritual. Convinced, +publicly at least, that “the Holy Bible contains and is itself the +fountain of true wisdom,” they set about raising funds which +they hoped to donate to the prosecution staff to offset the thousand-dollar +fees which, rumor had it, the ACLU was dangling +before the eager noses of local lawyers. Scopes and any other +evolutionist had to be shown that anyone who taught “our children +any theory which has as its purpose or tendency the discrediting +of our religion” would be promptly punished. If the +Reverend L. M. Cartwright and his cohorts couldn’t disprove +Darwin’s hypothesis, they could certainly discourage its converts.</p> + +<p><span class="pagenum" id="Page_106">[Pg 106]</span></p> + +<p>When Scopes was first arrested, he had retained John Randolph +Neal, a former law professor at the University of Tennessee, who +had just opened a law school in Knoxville. Neal, despite his reputation +for eccentricity, was astute enough to recognize that he +lacked the trial experience that Scopes’ defense demanded. Originally, +he was convinced that John W. Davis was the right man +to represent the young teacher but, when Clarence Darrow volunteered +his services, Neal realized that the man and the case +had met. “For the first, the last, and the only time in my life,” +Darrow later told a friend, “I volunteered my services in a case. +I did this because I really wanted to take part in it.”</p> + +<p>What undoubtedly motivated Darrow to take this unprecedented—and, +as it turned out, extremely expensive step—was the +fact that, on May 13th, William Jennings Bryan, the thrice-defeated +Democratic candidate for the Presidency, had announced +in Pittsburgh that he would, Tennessee officialdom willing, represent +the World’s Christian Fundamentals Association in the +case. Bryan, who was at the time a vociferous hawker for Florida +real estate, was, in Darrow’s opinion, “the logical man to prosecute +the case.” He had sparked the passage of anti-evolution +statutes in several Bible Belt states and was the leader of the +American fundamentalist movement. Two years earlier, he and +Darrow had clashed in the pages of the <i>Chicago Tribune</i> over +what the Chicagoan considered the former’s attempts “to shut out +the teaching of science from the public schools.” A Dayton +booster could hardly have asked for a better cast.</p> + +<p>On the evening of July 9th, Darrow arrived in a Dayton that +looked as if it were expecting a revival meeting rather than a +criminal prosecution. As he drove from the railroad station, he +passed under signs that admonished him to “Come to Jesus” and +“Prepare to Meet Thy Maker.” The town was bedecked with +flags and bunting while sidewalk refreshment stands, with +monkey posters pasted on their sides, lined both sides of Main +Street. Two tame chimpanzees in a store window were entertaining +the curious crowds which had been flocking into town for +more than a week. Newspapermen, radio operators, photographers, +farmers, telegraphers, preachers, beggars, tourists and +unemployed coal miners—they all thronged into Dayton in +such hordes that every available bed had been spoken for weeks<span class="pagenum" id="Page_107">[Pg 107]</span> +before the trial was scheduled to get underway. If nothing else, +the big show, which H. L. Mencken had already dubbed the +Monkey Trial, was sure to have an audience which would be as +huge as it was diverse.</p> + +<p>Darrow’s first night in Dayton was spent in The Mansion, +an abandoned plantation on the outskirts of town that Rappelyea, +in a burst of sudden inspiration, had reopened for the occasion. +But a man used to the conveniences of Chicago was not +one to camp more than twelve hours in a house that lacked +running water and the lawyer spent the rest of the trial in the +home of one of the local bankers. Bryan, who had arrived two +days before, was quartered at a private home from which he sallied +forth to address, in quick succession, the Dayton Progressive +Club, the Rhea County Board of Education, and the Methodist +Episcopal Church South. In between, when he could tear himself +away from the prodigious meals his hosts insisted on serving +him, he posed for pictures with John Washington Butler, Judge +Raulston, and every minister in town.</p> + +<p>Friday, the tenth, dawned hot and humid. When Darrow arrived +at the courthouse, he passed under a sign that proclaimed +in large letters, “Read Your Bible.” He walked up the rather +steep stairs that led to the second-floor courtroom where Raulston, +who liked to refer to himself as “jist a reg’lar mountin’eer +jedge,” was already ensconced behind his newly painted bench. +Darrow pushed his way slowly through the perspiring crowd +that blocked every aisle in the courtroom. As he sank into the +one vacant chair at the defense table, he nodded to Arthur Garfield +Hays, Dudley Field Malone and John Randolph Neal, +who were there to assist him. Across the way, at the prosecution +table, sat Bryan, his son, William, Junior, and five Tennessee +lawyers of varying shapes and sizes. After the Reverend +Mr. Cartwright had reminded everyone to look to God for “that +wisdom to so transact the business of this court in such a way +and manner as that Thy name may be honored and glorified +among men,” things were off and running.</p> + +<p>But first a little repair work was necessary. The special grand +jury that had originally indicted Scopes had been assembled so +hurriedly that there was some doubt as to its legality. Raulston +promptly swore in a new panel and began to read the Butler<span class="pagenum" id="Page_108">[Pg 108]</span> +Act to it. Then he picked up his well-thumbed copy of the Bible +and, in a voice that would have delighted Billy Graham, intoned +the first twenty-seven sections of Genesis, pausing significantly at +those portions which insisted that “God created man in His own +image.” Three of Scopes’ students then told the thirteen bumpkins +in the jury box that he had taught his classes all about +evolution from George William Hunter’s <i>Civic Biology</i>. In less +than an hour, the defendant was properly charged and the prosecution +was back on the rails.</p> + +<p>The first order of business was the selection of the jury. There +wasn’t much to choose from since only nineteen talesmen had +shown up that morning. Darrow, who prided himself on his +painstaking care in picking a panel, didn’t waste much time with +the bemused farmers who shuffled into the jury box and waited +patiently for the agnostic from Chicago to question them as to +their qualifications. By 1:30 p.m. the jury was complete. Of its +eleven members who attended church regularly, six were Baptists, +four Methodists and one an adherent of the Disciples of +Christ. The single backslider said that he perused the Bible from +time to time, but not “like I ought to.” At least one—a former +miner named Jim Riley—admitted he could not read but, since +both sides apparently considered illiteracy an asset, he was +promptly waved into the jury box. As the twelfth man—S. S. +Wright—took his seat, Raulston, who was obviously in no hurry +to rush the trial along, announced that court would adjourn for +the weekend.</p> + +<p>On Monday, things began in earnest. After A. T. Stewart, the +Attorney General for the Eighteenth Judicial Circuit, had read +the indictment to the jury, Neal immediately moved to dismiss +it on the ground that it violated both the state and federal constitutions. +Raulston thought that the legal arguments on these +points might be too heady for his back country jury—which +had not yet been sworn in—and he excused its members who +promptly repaired to the courthouse lawn where they eagerly +listened to the proceedings over the loudspeakers. After the lesser +lights on both sides of the fence had used up the morning in +forensic fireworks, a now coatless Darrow, who had just been +dubbed a Tennessee colonel by Raulston, began his attack on the +constitutionality of the Butler Act.</p> + +<p><span class="pagenum" id="Page_109">[Pg 109]</span></p> + +<p>After assuring the judge that he would “always remember that +this Court is the first one that ever gave me the great title of +‘Colonel,’” he got down to the business at hand. First of all, he +turned to face Bryan, who was busy cooling himself with a palm +fan, and declared that the Great Commoner was the one “who +is responsible for this foolish, mischievous and wicked act.” Then +he spent the rest of the afternoon ripping into the anti-evolution +law which he classified as “as bold an attempt to destroy +learning as was ever made in the Middle Ages.” He had just +gotten up a full head of steam when Raulston interrupted him +to announce that it was “adjourning time.” This pronouncement +didn’t seem to carry much weight with Darrow who swept on to +his climax:</p> + +<div class="blockquot2"> + +<p>Today it is the public-school teachers, tomorrow the private. +The next day the preachers and the lecturers, the magazines, +the books, the newspapers. After a while, your Honor +it is the setting of man against man and creed against creed +until, with flying banners, and beating drums, we are marching +backward to the glorious ages of the sixteenth century +when bigots lighted fagots to burn the men who dared to +bring any intelligence and enlightenment and culture to the +human mind.</p> +</div> + +<p>As he sat down, he noticed for the first time that, in his excitement, +he had ripped one of his shirt sleeves.</p> + +<p>The next morning—Tuesday, July 14th—he stormed back +into the courtroom and shook Raulston to his back teeth by +demanding that the practice of opening court with a prayer be +abandoned. “I don’t object to the jury or anyone else praying +in secret or in private,” he argued, “but I do object to the turning +of this courtroom into a meetinghouse in the trial of this +case. This case is a conflict between science and religion and no +attempt should be made by means of prayer to influence the +deliberation and consideration by the jury of the facts in this +case.” After Raulston had recovered his equilibrium, he informed +Darrow that it had “been my custom since I have been a judge +to have prayers in the courtroom when it was convenient, and I +know of no reason why I should not follow up this custom, so I +will overrule the objection.” As a compromise, he asked New +York’s Reverend Charles Francis Potter, who had come to Dayton<span class="pagenum" id="Page_110">[Pg 110]</span> +as a witness for the defense, to lead the next day’s prayer.</p> + +<p>Raulston spent the rest of the day working on the opinion +which would accompany his decision on the motion to dismiss +the indictment. However, at the very moment he was dictating +it to his stenographer, the International News Service had informed +its subscribers that the defense motion would be denied. +The judge, furious at being upstaged, appointed a committee +of newspapermen, headed by Richard Beamish of the <i>Philadelphia +Inquirer</i>, to investigate the leak. The committee’s report +was as simple as it was conclusive. It seemed that William K. +Hutchison, an INS reporter, had asked Raulston whether court +would be adjourned to the next day after the opinion was read. +When the judge replied that it would, Hutchison guessed that +the motion had been denied and released a story to that effect. +Raulston decided to let the matter drop with a warning to the +newsmen not to “ask me any questions without putting me on +notice what it is about.”</p> + +<p>On Wednesday morning, he confirmed Hutchison’s accurate +guesswork and announced that he would not quash the indictment. +His reasons were simple—no one was forced to teach +in the public schools and, if any teacher’s conscience was troubled +by having to hew to the letter of the Butler Act, he could resign +and teach in a private institution. Why, if this law wasn’t constitutional, +the Holy Writ itself was suspect! He raced through +his 6000-word opinion in a little more than an hour, pausing +only to wipe the perspiration from his face with a large scarlet +handkerchief. When he had finished, the courthouse clock read +11:13 and he promptly adjourned for lunch.</p> + +<p>That afternoon, Foreman Jack R. Thompson, a former United +States Marshal, led his fellow jurors back into the box and, at +long last, they were sworn in. Their first official act was to +request, through their foreman, that the judge “take up the +matter of some electric fans here.” Unfortunately, the depleted +state of the county treasury would not permit such an extravagance, +but Raulston graciously consented to “divide my fan,” +and it was placed on an oblique with the jury box. He also suggested +that a foraging squad be sent out to see what could be +done about “borrowing” a fan or two in town.</p> + +<p>The first witness for Bryan & Company was Walter White,<span class="pagenum" id="Page_111">[Pg 111]</span> +the county superintendent of schools, who had signed the second +complaint against Scopes. He said that the defendant had admitted +to him back in May that he had used Hunter’s <i>Civic +Biology</i> in class and that it was absolutely impossible to teach +from it without presenting Darwin’s theory. As for the Butler +Act, Scopes had told White that “the law was unconstitutional +anyway.” Yet, despite the threat the text posed to the impressionable +minds of Tennessee’s small fry, it had been used in +the state’s school system since 1909 and had been officially +adopted by the School Book Commission as late as 1924. In fact, +it could be purchased in Dayton from the now celebrated drug +store of F. E. Robinson who, in addition to his pharmaceutical +pursuits, was the president of the county board of education. +When Darrow asked the witness if he had ever warned any +teacher about the book’s evil contents, or if anyone had ever +complained to him about them, the answer to the question was +a drawled “No, Sir.”</p> + +<p>When White stepped down from glory, he was followed by +fourteen-year-old Howard Morgan, the son of Luke Morgan of +the Dayton Bank & Trust Company, to whose house Darrow and +his wife, Ruby, had fled after one night’s experience with The +Mansion’s inactive plumbing. Young Howard was one of Scopes’ +students. According to him, the defendant had insisted that “the +earth was once a hot molten mass, too hot for plant or animal +life to exist upon it; in the sea the earth cooled off; there was +a little germ of one-cell organism formed and this organism kept +on evolving until it got to be a pretty good-sized animal and +then came on to be a land animal, and it kept on evolving, and +from this was man, and that man was just another mammal.”</p> + +<p>Morgan looked disappointed when Stewart looked over at +Darrow and purred, “Your witness, Colonel.” Under the Chicagoan’s +gentle questioning, the boy admitted that Scopes had +never said that “a cat was the same as a man.” On the contrary, +“he said that man had reasoning power; that these animals did +not.” After observing that he wasn’t as sure as Scopes about that, +Darrow asked the witness whether he could remember anything +else of a salacious nature that the defendant had taught him. +He could not.</p> + +<p>Seventeen-year-old Harry Shelton backed up his classmate’s<span class="pagenum" id="Page_112">[Pg 112]</span> +story. Yes, Scopes had indeed said that man was descended from +a lower order of animals. But what he had learned hadn’t had +any adverse effect on him. He still went to church regularly, just +as he had before he was told that “all life comes from a single +cell.” Darrow, who looked quite satisfied with the way things +were going, asked Harry, “Did Mr. Scopes teach you that man +came from the monkey?” As the boy opened his mouth to answer +the question, there was a horrendous shriek from the direction +of the courthouse lawn. A chimpanzee, which had been +brought from New York as a publicity stunt; had just been +struck by a rock propelled by the elastic band in the slingshot of +a small boy who quite obviously had little respect for his ancestors. +Harry Shelton’s answer to Darrow’s question was never +to be recorded by the thoroughly distracted court stenographer.</p> + +<p>It had been in F. E. Robinson’s emporium that what Scopes +called “just a drugstore discussion that got past control” had +started all the hullabaloo. Robinson, who presided over the +county school board, had been present while Rappelyea was +trying to convince Scopes to throw himself in the path of the +anti-evolution law. Yes, he had heard the defendant state that +he had been teaching Darwin’s theory to his biology class. In +fact, John Thomas had gone even further and said that it was +impossible to teach the subject from any of the available books +without violating the Butler Act.</p> + +<p>But Robinson, whose drugstore sold everything from sassafras +to hickory chips, also purveyed Hunter’s <i>Civic Biology</i>. +Darrow reminded him that he might be talking himself into a +criminal prosecution but, as Stewart informed Raulston, “the law +says ‘teach’, not sell.” They were still laughing at that one in +the back rows when Robinson proudly admitted that he had a +monopoly on the book in Dayton and that copies were supplied +to him by the county library in Chattanooga. No, he hadn’t noticed +“any signs of moral deterioration in the community” since +he’d been selling them.</p> + +<p>This was Tennessee’s case against John Thomas Scopes. After +some <i>pro forma</i> motions to dismiss the indictment had been +denied by the judge, Darrow called his first witness, a bespectacled +gentleman who turned to be Dr. Maynard M. Metcalf, a +zoologist from John Hopkins University, who described himself<span class="pagenum" id="Page_113">[Pg 113]</span> +as an “evolutionist.” He was the first of a band of scientific witnesses +whom Darrow had brought to Dayton with him to show +“what evolution is ... and the interpretation of the Bible that +prevails with men of intelligence who have studied it.” But none +of them were ever to get to say their pieces, because Bryan, in +his one speech of the trial, convinced Raulston, who was ready to +meet him more than halfway, that “the Bible, the record of the +Son of God, the Savior of the World, born of the Virgin Mary, +crucified and risen again—that Bible is not going to be driven +out of this court by experts who come hundreds of miles to +testify that they can reconcile evolution with its ancestor in the +jungle, with man made by God in His image and put here for +His purpose as part of a divine plan.” Not very legal, perhaps, +but quite persuasive.</p> + +<p>However, Raulston did consent to the submission of affidavits +by Darrow’s experts for the “information of the judge.” When +Darrow asked for the rest of the day to prepare these statements, +Raulston indicated that he wasn’t inclined to grant the request. +“I do not understand,” Darrow barked at him, “why every request +of the State and every suggestion of the prosecution should +meet with an endless loss of time; and a bare suggestion of anything +that is perfectly competent on our part should be immediately +overruled.” Raulston, with a bland smile, expressed the +hope that “you do not mean to reflect upon the court?”</p> + +<div class="blockquot"> + +<p>DARROW: Well, your Honor has the right to hope.</p> + +<p>RAULSTON: I have the right to do something else perhaps.</p> + +<p>DARROW: All right, all right.</p> +</div> + +<p>The next morning, Saturday, the 18th, the <i>Chattanooga News</i> +prophesized that Raulston would probably cite Darrow for contempt +when court reconvened after the weekend.</p> + +<p>But the weather was much too hot for further fireworks and +on Monday, Darrow, after being cited, mollified the ruffled feelings +of his Honor by admitting that “I went further than I +should have gone and I want to apologize to the court for it.” +Raulston was more than magnanimous. “I accept Colonel Darrow’s +apology,” he murmured. “I am sure his remarks were not +premeditated. I am sure that if he had time to have thought +and deliberated, he would not have spoken those words ... we +forgive him and we forget it and we command him to go back<span class="pagenum" id="Page_114">[Pg 114]</span> +home and learn in his heart the words of the Man who said: +‘If you thirst come unto Me and I will give thee life.’” Pyrrhus +would have understood.</p> + +<p>That afternoon, as the usual crowd of slightly more than one +thousand people pushed into the courtroom after the noon recess, +a worried bailiff informed Raulston that there was some +danger that the building would collapse. The latter decided to +transfer the trial to the courthouse lawn where an impromptu +platform had been built to accomodate Bryan and the ministers +who had been using their free time to put in a word for the +Bible and its copyright owner. But, from the defense’s point of +view, the courtroom <i>en plein air</i> had one drawback—there was +a large sign on the courthouse wall facing the jurors which importuned +them to “Read Your Bible Daily.” When Darrow suggested +that a companion placard stating “Read Your Evolution” be +erected alongside the offending sign, Raulston promptly decided +to remove all signs. <i>Sic transit gloria mundi.</i></p> + +<p>After the furor had died down, Arthur Garfield Hays finished +reading the statements which had been prepared by the scientists +and clergymen Darrow had brought to Dayton, and whose testimony +had been excluded by Raulston’s ruling. Seven geologists, +anthropologists and zoologists as well as three Protestant ministers +and a Jewish rabbi were represented as Hays, in a tired +voice, tried his best to educate an increasingly exasperated Raulston. +When the defense attorney had finished his readings, he +offered into evidence two Bibles and sat down. Darrow whispered +something in his ear, and Hays was back on his feet again. “The +defense desires to call Mr. Bryan as a witness,” he announced. +“We should want to take Mr. Bryan’s testimony for the purposes +of our record, even if your Honor thinks it is not admissable +in general, so we wish to call him now.”</p> + +<p>Despite Bryan’s obvious discomfiture at having to take the +stand, there was no escape. He was being called as an expert +on the Bible, a status he had assumed before Chautauquas up +and down the land, and he simply could not refuse to accept +Darrow’s challenge. After gaining a few minutes to collect his +thoughts by insisting that the lawyers for the defense be ordered +to take the stand when he was finished, Bryan perched himself +in the spindle-legged chair that passed for a witness chair. What<span class="pagenum" id="Page_115">[Pg 115]</span> +the <i>New York Times</i> later described as the most amazing court +scene in Anglo-Saxon history was about to be launched.</p> + +<p>With the observation that he was sure that the witness would +tell the truth, Darrow waived having him sworn. Then he got +down to cases. He asked Bryan whether he had given considerable +study to the Bible, and the old Democrat assured him that +he had, “for about fifty years.” With slight exceptions, he was +convinced that everything in the Scriptures should be taken +literally. “When I read that a big fish swallowed Jonah,” he +bellowed, “I believe it, and I believe in a God who can make a +whale and can make a man and make them both do what he +pleases. One miracle is just as easy to believe as another.”</p> + +<p>As Darrow led his perspiring adversary through the Bible +from Creation to the Battle of Jericho, many of the reporters +sprawled on the benches that had been placed under the square’s +maple trees remembered that he had asked many of the same +questions in the pages of the <i>Chicago Tribune</i> two years earlier. +Bryan had refused to answer them then, but he was forced to +do so now. When the long day drew to a close, Bryan was a defeated +and humiliated man who had left whatever reputation he +had brought into Dayton among the empty pop bottles and +cracker jack boxes that littered the courthouse lawn. As Will +Rogers put it, “He might make Tennessee the side show of +America, but he can’t make a street carnival of the whole United +States.”</p> + +<p>With Bryan committed to defending the literalness of every +incredible occurrence in the Bible, Darrow’s task was a comparatively +simple one. A man who believed that Joshua made the +sun stand still, or that Eve was created out of Adam’s rib, or +that a giant flood destroyed all life on earth, was a sitting duck +for an experienced and shrewd cross-examiner. As the day wore +on, it was quite apparent that Bryan’s answers were destroying +him in the eyes of even his friends, and that Darrow had succeeded +in turning a rout into what had all the earmarks of a +shattering victory.</p> + +<p>Bryan’s observation that he was “more interested in the Rock +of Ages than the age of rocks” set the tone of the entire interrogation. +For example, when Darrow took up the subject of<span class="pagenum" id="Page_116">[Pg 116]</span> +Eve’s temptation, the witness was certain that labor pains had +originated with God’s wrath at apple larceny.</p> + +<div class="blockquot"> + +<p>Q. And for that reason, every woman born of woman who +has to carry on the race, has childbirth pains because +Eve tempted Adam in the Garden of Eden?</p> + +<p>A. I will believe just what the Bible says. I ask you to put +that in the language of the Bible, for I prefer that to +your language. Read the Bible and I will answer.</p> + +<p>Q. All right, I will do that: “‘And I will put enmity between +thee and the woman’”—that is referring to the serpent?</p> + +<p>A. The serpent.</p> + +<p>Q. “‘... and between thy seed and her seed; it shall bruise +thy head, and thou shalt bruise his heel.’ Unto the woman +he said, ‘I will greatly multiply thy sorrow and thy conception; +in sorrow thou shalt bring forth children; and +thy desire shall be to thy husband and he shall rule over +thee.’” That is right, is it?</p> + +<p>A. I accept it as it is.</p> + +<p>Q. And you believe that came about because Eve tempted +Adam to eat the fruit?</p> + +<p>A. Just as it says.</p> +</div> + +<p>As for the serpent, he had to “crawl upon his belly” for his +nefarious part in the episode.</p> + +<div class="blockquot"> + +<p>Q. Do you think that is why the serpent is compelled to crawl +on his belly?</p> + +<p>A. I believe that.</p> + +<p>Q. Have you any idea how the snake went before that time?</p> + +<p>A. No, sir.</p> + +<p>Q. Do you know whether he walked on his tail or not?</p> + +<p>A. No, sir. I have no way to know.</p> +</div> + +<p>The laughter that accompanied Darrow’s last question about +the earthbound snake marked the beginning of the end. A few +minutes earlier Bryan had admitted that the six days of Creation +did not amount to “six days of twenty-four hours.” His impression +was that “they were periods” but he had no idea as to +their length. The defender of the Word, who had refused to +question Joshua’s sun-stopping maneuver or Jonah’s sojourn in +the alimentary canal of a whale, knew that it took more than a +week to build a makeshift barn, and somehow couldn’t swallow<span class="pagenum" id="Page_117">[Pg 117]</span> +a six-day Creation. But as far as the fundamentalists on the courthouse +lawn were concerned, he had betrayed them all. When he +walked home later that afternoon, only one man accompanied +him. The rest of the crowd followed Darrow all the way to the +Morgan house.</p> + +<p>The next morning dawned cool and rainy, and Raulston ordered +the circus back into the courthouse, cracks or not. After +expunging Bryan’s testimony, because he felt it could “shed no +light upon any issues that will be pending before the higher +courts,” he ordered the jury, which had been cooling its collective +heels for more than a week just inside loudspeaker range, to +get back to work. Darrow said that he thought it would save a +great deal of time if the judge would instruct it to bring back +a verdict of guilty so that the case could “get to a higher court.” +At 11:14 on the morning of Wednesday, July 22nd, Captain +Thompson led his colleagues down the stairs to the courthouse +lawn where, after some eight minutes of palavar and one ballot, +they found Scopes guilty of violating the Butler Act. As to the +fine, they were willing to leave that to Raulston, who had told +them in advance that he intended to fix it at one hundred dollars, +the minimum under the statute.</p> + +<p>The judge was as good as his word. He asked Scopes to stand +up and informed him that he was indebted to the State of +Tennessee in the sum of one hundred singles. When Neal +reminded Raulston that he had forgotten to ask the defendant +whether he had anything to say before being sentenced, the judge +was all apologies. The thin, balding teacher, who had been silent +for twelve sweltering days, didn’t take very long to say what he +had to say. “Your Honor, I feel that I have been convicted of +violating an unjust statute. I will continue in the future, as I +have in the past, to oppose the law in any way I can. Any other +action would be in violation of my ideal of academic freedom—that +is, to teach the truth—as guaranteed in our constitution, of +personal and religious freedom. I think the fine is unjust.”</p> + +<p>Not to be outdone, his Honor, after imposing the fine again, +told Scopes that “it sometimes takes courage to search diligently +for a truth that may destroy our preconceived notions and ideas. +It sometimes takes courage to declare a truth or stand for an act +that is in contravention to the public sentiment. A man who is<span class="pagenum" id="Page_118">[Pg 118]</span> +big enough to search for the truth and find it and declare it in +the face of all opposition is a big man.” While Darrow, Hays +and Malone were digesting that one, the <i>Baltimore Sun</i> posted +the five-hundred-dollar bond required as a condition of appeal +and everyone began to congratulate everyone else. After Hays +had promised to send the judge a copy of the <i>Origin of Species</i>, +Raulston said, “We will adjourn and Brother Jones will pronounce +the benediction.” The first stage of the State of Tennessee +<i>versus</i> John Thomas Scopes was over.</p> + +<p>For weeks before the trial, Bryan had been busy writing an +anti-evolution speech which he looked forward to delivering in +the courtroom. But Darrow’s carefully planned capitulation on +the trial’s last day had deprived him of his national forum. Such +a speech, however, could not remain locked up in the frustrated +soul of a veteran Chautauquian who was not in the habit of +keeping his thoughts to himself. After trying excerpts out on +roadside audiences in Jasper and Winchester, Tennessee, he +persuaded the <i>Chattanooga News</i> to publish it. But he was +never to see it in print. On Sunday, July 26th, he died of what +Darrow, with more candor than good taste, termed “indigestion +caused by over-eating.” As for the great oration, Mrs. Bryan released +it for general publication two days after her husband’s +death. It went largely unnoticed.</p> + +<p>Everything else was anti-climatic. A year and a half later, the +Tennessee Supreme Court sustained the constitutionality of the +Butler Act. But its four members reversed Scopes’ conviction +because Raulston had violated the state constitution when he, +and not the jury, had fixed the fine. Unless the prosecution insisted +on bringing Scopes to trial again, the case was cold turkey, +and Chief Justice Green did his best to keep it that way. “We +see nothing to be gained,” he urged, “by prolonging the life of +this bizarre case.” The Attorney General took the rather broad +hint Green had dropped, and immediately nolle prossed the indictment.</p> + +<p>Although the school board offered to reinstate Scopes, he decided +to take advantage of his notoriety and accepted a graduate +scholarship. As for the Butler Act, it was never to be enforced +again—in Tennessee or anywhere else for that matter. In 1951, +a bill proposing its repeal was introduced by, of all people, Rhea<span class="pagenum" id="Page_119">[Pg 119]</span> +County’s representative in the Tennessee Legislature, but it was +soundly defeated. Another attempt, ten years later, was voted +down, 69 to 17, in the House of Representatives. Today, it still +lurks in the statute books, a remembrance of things past. But as +far as the “victorious defeat” that clipped its wings was concerned, +Darrow never grew tired of saying that “I believed that +the cause was worth while, and was always glad that I helped.”</p> +<hr class="full"> + +<div class="chapter"> +<p><span class="pagenum" id="Page_120">[Pg 120]</span></p> + +<h2 class="nobreak" id="c8">6</h2> +</div> + +<p class="u large"><i>Their Skin was Black</i></p> + +<p class="c xlarge">The State of Alabama</p> + +<p class="c xlarge"><i>versus</i></p> + +<p class="c xlarge">Haywood Patterson</p> + + +<p>In 1931, Huntsville was a rickety industrial town in the northern +reaches of Alabama. Most of its 30,000 inhabitants depended +on one or another of the seven mills that were just beginning +to be hit by the depression that had already paralyzed other +parts of the country. By March, Margaret Mill, for example, had +cut its work week to two days and its average daily wage to $1.20.</p> + +<p>One of Margaret’s employees was a seventeen-year-old girl +named Ruby Bates whose nomadic family lived in a shack on +Depot Street, Huntsville’s Negro section. The only whites on the +block, the Bateses had migrated to Huntsville from the cotton +fields of central Alabama. Sharecropping had not brought in +enough to feed five mouths and, after Mr. Bates had deserted +his brood and left for parts unknown, Ruby and her mother +decided to move into a town where both women could work at +one of the mills. First it was Athens and then Huntsville.</p> + +<p>Monday, March 23, 1931, was a sunny day on the cool side. +Ruby, who hadn’t worked for more than a week, was standing +near her front window, watching her brother and sister playing +with the Negro children on Depot Street, when Victoria Price, a +Margaret co-worker, strolled up the front walk. Twenty-five-year-old +Victoria, who lived with her mother on Arms Street, +supplemented her meager mill earnings with some slack-time +prostitution. By 1931, she had a sizable arrest record even +though Walter Sanders, Huntsville’s deputy sheriff, described<span class="pagenum" id="Page_121">[Pg 121]</span> +her as “a quiet prostitute [who] don’t go rarin’ around cuttin’ +up in public.”</p> + +<p>Victoria had an idea. Jack Tiller, her current boy friend, had +run into Lester Carter who had just been released from a Huntsville +chain gang. The two men had suggested that Victoria find +a girl for Lester and then they would shake the Alabama dust +from their feet. Ruby was more than willing and, after packing +her few belongings, hurried over to the Price’s two-room shack +where Tiller and Carter were waiting. Both girls had on overalls, +under which they were wearing their entire wardrobes. +The two couples spent the night in a nearby hobo jungle where, +between some semi-public lovemaking, they made plans to go +West and “hustle the towns.”</p> + +<p>But, in the cold light of dawn, Tiller suddenly realized that +he had a wife who might not take too kindly to his proposed +cross-country tour with Victoria, and decided to give up the venture +and go home. Carter and the girls jumped a freight for +Chattanooga, almost one hundred miles away, where they bedded +down in some woods just outside of the city. There, they were +joined by a street poet named Orville Gilley, otherwise known as +“Carolina Slim,” who was swiftly enlisted as a replacement for +Tiller. At eleven o’clock the next morning, the quartet boarded +a forty-car freight which was bound for Memphis. They settled +down in an open gondola car which was almost filled to the gunwales +with crushed rock. Five other white boys were sitting at +the opposite end of the car.</p> + +<p>The freight, which was following the tracks of the Southern +Railroad, crossed into Alabama at Bridgeport, and passed +through Stevenson, Fackler, Hollywood, Scottsboro, Lim Rock +and Woodville before it came to a stop at Paint Rock, less than +thirty miles east of Huntsville. Shortly after Gilley, Carter and +the two girls had boarded the gondola, the train stopped for +water at a siding in Stevenson. Seconds later, a dozen or so colored +boys climbed into the gondola from an adjoining box car. +A fight immediately ensued between the invaders and the seven +white boys in the gondola, the net result of which was the forcible +eviction of all the whites with the exception of Gilley.</p> + +<p>The boys who had been thrown off the slowly moving train +limped back into Stevenson where they reported the incident to<span class="pagenum" id="Page_122">[Pg 122]</span> +the stationmaster. He telephoned ahead to Paint Rock, some +thirty-eight miles west of Stevenson, and, when the train pulled +into that northern Alabama hamlet at 2:30 p.m., a posse of +seventy-five armed white men was waiting for it. Nine Negro +boys between thirteen and twenty years of age, as well as Ruby +Bates, Victoria Price and Orville Gilley, were removed from the +gondola. The girls were taken to a doctor’s office for a physical examination +while the Negroes were locked up in Scottsboro’s tiny +jailhouse. When an ugly crowd began to gather, Sheriff M. L. +Wann asked Governor B. M. Miller to send in the National +Guard. The troops arrived at four the next morning and escorted +the nine suspects to Gadsden, Alabama. Four days later, +they were returned to Scottsboro where they were all indicted +on the charge that they “forcibly ravished ... a woman against +the peace and dignity of the State of Alabama.”</p> + +<p>Their trials started on Monday, April 6, 1931, in the Jackson +County Circuit Court. H. G. Bailey, the State Solicitor, asked +Judge Alf E. Hawkins to sever the trials, a request that was +promptly granted. Charlie Weems and Clarence Norris, who +were twenty and nineteen respectively, were first tried; their +trial was followed by that of eighteen-year-old Haywood Patterson. +The third involved five boys—Andy Wright (19), Willie +Roberson (17), Olen Montgomery (17), Ozie Powell (16) and +Eugene Williams (15). The youngest defendant, thirteen-year-old +Roy Wright, was to stand trial by himself.</p> + +<p>The boys’ pedigrees were much the same. They were all destitute, +illiterate and unskilled southern Negroes who came from +Tennessee and Georgia. Roberson was suffering from both gonorrhea +and syphilis while Montgomery was practically blind. +According to Patterson, “All nine of us were riding the freight +for the same reason, to go somewhere and find work.” These +were the “nine black fiends” who, according to the <i>Jackson +County Sentinel</i> of March 26, 1931, had “committed [the] revolting +crime.”</p> + +<p>When the trials started, none of the defendants was in any +position to retain an attorney. Judge Hawkins had appointed +“all members of the bar for the purpose of arraigning the defendants, +and then, of course, I anticipated them to continue +to help if no counsel appears.” A Stephen W. Roddy, a Chattanooga<span class="pagenum" id="Page_123">[Pg 123]</span> +lawyer, who had been approached by members of the +National Association for the Advancement of Colored People, +told Hawkins that, although he had not been paid and would +not “appear as counsel,” he was willing to do what he could on +the defendants’ behalf. He was joined by Milo Moody, a member +of the Scottsboro bar, who expressed his willingness “to help +Mr. Roddy in anything I can do about it under the circumstances.” +The judge was quite obviously relieved that the niceties +of justice would be scrupulously observed.</p> + +<p>Roddy’s first step was to present a petition signed with nine +X’s asking for a change of venue. In view of the hostile crowd +which filled the courthouse lawn, he insisted that a fair trial +was impossible in Scottsboro. Bailey made it quite clear that +he considered Roddy’s suggestion impertinent and called Major +Joe Starnes, the commanding officer of the National Guard, to +rebut it. Starnes assured the court that “the crowd here was +here out of curiosity and not as a hostile demonstration toward +these defendants.” The major’s opinion was enough for Hawkins +and he overruled Roddy’s motion.</p> + +<p>The four trials were over by Thursday morning. On Friday, +eight of the Negroes were sentenced to die in the Kilby Prison +electric chair early the following July. Because one juror +refused to vote for Roy Wright’s execution, his trial resulted in +a hung jury. But eight out of nine was a good batting average +in anybody’s league and the crowd outside the courthouse, which +sang “There’ll be a Hot Time in the Old Town Tonight” as +each guilty verdict was announced, was more than satisfied with +the week’s work.</p> + +<p>In all four trials, Victoria Price and Ruby Bates were the +witnesses-in-chief for the prosecution. Their stories left little to +be desired as far as the State Solicitor was concerned. After the +Negroes had invaded the gondola car, they had cowed the +white boys by “telling them that they would kill them, that it +was their car and we were their women from now on.” Victoria +accused Norris of having “sexual intercourse with me” while +Weems threatened her with a .45 pistol and a knife. Norris had +“pulled my overalls over me” and “the little one, the smallest one, +was holding my legs.” To add insult to injury, Norris had not +only raped her but stolen her knife, $1.50 of her money, and a<span class="pagenum" id="Page_124">[Pg 124]</span> +pocket handkerchief. Twelve Negroes had entered the gondola car +but “three got off.” She denied that she was travelling with any +of the seven white boys who had been involved in the fight at +Stevenson. In all, she and Ruby had each been raped by six +boys but “three of hers got away.”</p> + +<p>Ruby said that the Negroes had ordered the white boys in +the gondola car “to unload” before the rapes took place. Then, +while some of the defendants threatened her with knives and +pistols, she had been thrown to the gravel-covered floor of the +car and attacked. “There were three Negroes to each girl,” she +told the spellbound jury, “one for intercourse, one for holding +the knife and one for holding the pistol. They never did remove +the knife or pistol.”</p> + +<p>Two physicians—Drs. R. R. Bridges and M. H. Lynch—had +examined both girls a little more than an hour after they had +been removed from the train. Although he had found no “recent +lacerations” on either woman, Bridges said that he had “found +semen in the vagina of each one.” Two years later, he was to +state that “the semen did not move and we don’t swear as to +whether it is dead or alive unless we see it move.” No lacerations, +tears or bruises were found in the genital region of either +girl. Both Victoria and Ruby had seemed quite calm during +Bridge’s first examination but when he visited them in jail the +next day they were somewhat hysterical. Lynch, who was the +head of the Jackson County Health Department, confirmed his +colleague’s observations.</p> + +<p>Hawkins, who was determined to get the trials over with as +soon as possible, refused to let Roddy and Moody do more +than present a token defense. Nowhere was this more apparent +than in their cross-examination of the two physicians. When +they tried to show that Victoria and Ruby were far from virgins, +the judge said such evidence was irrelevant. While Dr. Bridges +was on the stand, Roddy asked him whether either girl showed +any indications of gonorrhea or syphilis. Hawkins refused to +let the physician answer the question despite the fact that Willie +Roberson was suffering from both diseases. Although Bridges +confirmed that Roberson had “a bad case of it,” he was sure +that “it is possible for him to have intercourse.”</p> + +<p>Lynch and Bridges were followed by a number of Stevenson<span class="pagenum" id="Page_125">[Pg 125]</span> +residents who had seen the fight on the gondola car. Luther +Morris had been in a barn loft, some thirty yards away from the +Southern roadbed, when the train passed. He had seen a “bunch +of Negroes put off five white men and take charge of two white +girls. The two white girls were doing their best to jump and +the Negroes got the two white girls and they were pulled back +down in the car.” Two of the boys who had been thrown off +the train by the Negroes passed by Morris’s barn on their way +to Stevenson but were too stunned to talk to him. “They just +said: ‘I am dying’ ... they were badly hurt.”</p> + +<p>Orry Robbins had been standing near a woodpile, a hundred +yards away from the tracks, when the train passed. He said +that “I saw two girls and these colored people ... one of the +colored men grabbed a woman and threw her down.” T. L. +Dobbins, who was only a few feet away from the train, had observed +the scuffling in the gondola car but, as far as the participants +were concerned, he “could not tell whether they were +white or black.” Lee Adams, who was two hundred yards away, +had watched “a bunch of people in a car ... striking and about +that time I saw someone go over the top of the car.” Later, he +saw two of the boys who had been thrown off the train running +toward Stevenson and “the blood was running down their faces.” +By the time the train passed Sam Mitchell, it was going between +thirty and forty miles per hour. As for the fight, “we see’d them +wrestlin’, ’peared like. That’s all I seen; the train was going +pretty fast.”</p> + +<p>When the train stopped at Paint Rock, the armed posse was +waiting for it. Bailey used some of its members to add what little +they could to the case against the defendants. Tom Taylor Rousseau +was certain that Victoria “was unconscious” when “they +toted her off the train. She had her eyes closed and was lying over +this way ... she was in no condition to walk.” Victoria had +previously testified that “I was unconscious after I got off the +train ... I became unconscious when I fell off the stirrup on +the side of the gondola.” T. M. Latham, a deputy sheriff, testified +that the girl “could not walk” when he first saw her. Jim Broadway +said, “The Bates girl seemed to be in fairly good shape +but the other could not hardly talk and couldn’t walk.”</p> + +<p>Both women told Latham that “we have been mistreated” but<span class="pagenum" id="Page_126">[Pg 126]</span> +Broadway, who was only a few feet away, said, “I did not hear +Victoria Price make no complaint, either to me or to anyone +else about the treatment they received at the hands of these defendants +over there.” Victoria herself had admitted that the defendants’ +arrest had not been “on account of any complaint of +mine.” Lastly, Jackson County Deputy Sheriff Arthur W. Woodall +testified that he had found Victoria’s pen knife in Norris’ +pocket.</p> + +<p>Orville Gilley, who was the only white boy who had not been +thrown off the train as it pulled out of Stevenson, was used in +the third trial. Outside of the girls, he was the sole white eyewitness +to what had occurred in the gondola car. Yet Bailey used +him only for the limited purpose of identifying five of the defendants +as having been present in the car. “I saw those five in +the car ... every one of those five in the gondola.”</p> + +<div class="blockquot"> + +<p>Q. Were the girls in there?</p> + +<p>A. Yes, sir.</p> +</div> + +<p>Evidently, Sam Gilley’s son had been singularly unconcerned +with what was happening to his traveling companions for he +made no attempt either to notify the engineer or the conductor +or to leave the train.</p> + +<p>When the state rested, all of the defendants took the stand. +Weems accused Haywood Patterson of forcing him, at the point +of a pistol, to fight the white boys on the train. But he insisted +that he “didn’t see the girls. I never did see the girls.... If +anybody had anything to do with the girls, I don’t know nothing +about it.” Clarence Norris on the other hand, had “seen +every one of them have something to do with those girls, all +eight of them, but I didn’t.” According to him, Patterson had +said that “he was going over there to run the white boys off and +going to have something to do with them.” Patterson swore +that he had been sitting on the box car behind the gondola, +from which vantage point he had seen Weems and several others +rape Victoria. “But I had nothing to do with those girls,” he +insisted. Roy Wright also said that “there was nine Negroes +down there with the girls and all had intercourse with them ... I +saw that with my own eyes.”</p> + +<p>The other defendants insisted that they were completely innocent. +They denied that they had seen the girls until the<span class="pagenum" id="Page_127">[Pg 127]</span> +freight stopped at Paint Rock. Ozie Powell “never did see the +girls” from the time he boarded the freight at Chattanooga +until it was stopped at Paint Rock. Olen Montgomery, who +claimed that he had been “back in the seventh car from the +end of the train ... by my lonely ... first saw them at Paint +Rock,” and Eugene Williams “did not see the girls at all until +we got to Paint Rock.” Andy Wright swore that “I did not +have intercourse with a woman on that train” while Willie +Roberson testified that, because of his venereal diseases, “I am +not able to have sexual intercourse.”</p> + +<p>After the eight convicted defendants had been sent to the Kilby +Prison death row, Roddy filed four motions for new trials. +Among other grounds, he urged that the defendants were not +given sufficient time in which to prepare their defense and that +the atmosphere in Scottsboro was so hostile that a fair trial +was impossible. On June 22nd, Hawkins denied all the motions +and, in Kilby’s Cell 222, Haywood Patterson “was busy living +from minute to minute” while he and the Scottsboro Boys, as +they came to be called, were waiting for their July 10th date +with current supplied free of charge by the Alabama Light and +Power Company.</p> + +<p>But July 10th came and went and the only man executed at +Kilby that night was one Will Stokes, an ax-murderer, who +went to his death a few minutes after midnight. An appeal to +the Alabama Supreme Court from Judge Hawkin’s refusal to +grant new trials had resulted in a stay of execution for Patterson +& Company. It wasn’t until the following Spring that +the judgments were affirmed and seven of the defendants were +re-sentenced to die on May 13, 1932. Because Eugene Williams +was under sixteen, Alabama law required that he be tried as a +juvenile delinquent and his conviction was reversed on that +ground alone.</p> + +<p>When the appeals were argued before the Alabama Supreme +Court, neither Roddy’s nor Moody’s names appeared on the +briefs for the defendants. George W. Chamlee, Senior, and his +son, George, Junior, two Chattanooga lawyers, now represented +the Scottsboro boys. They had been selected by the International +Defense League, a Communist affiliate devoted to defending any +member of the “working class” who ran afoul of “capitalist justice.”<span class="pagenum" id="Page_128">[Pg 128]</span> +Through Joseph R. Brodsky, its general counsel, it had +financed the appeals to Alabama’s highest court.</p> + +<p>On April 9, 1932, the judges refused to rehear the appeals and +it looked very much as if the year-long fight to save eight nondescript +lives was about over. But the I.L.D. was not one to +leave any stone unturned (or unhurled) and it asked the +United States Supreme Court to intervene. Early in October, +Walter H. Pollak, another I.L.D. attorney, argued in Washington +that the defendants had not received a fair and impartial +trial, had been denied the right of counsel and sufficient time in +which to prepare their defense, and had been tried before +juries from which qualified Negroes were deliberately excluded.</p> + +<p>On November 7, 1932, seven of the nine justices reversed the +convictions and ordered new trials for all the defendants. In +their opinion, the Scottsboro Boys had not been given an opportunity +to secure counsel of their own choice. “Not only was +that not done here, but such designation of counsel as was attempted +was either so indefinite or too close upon the trial as +to amount to a denial of effective and substantial aid.... We +hold that the defendants were not accorded the right of counsel +in any substantial sense. To decide otherwise, would simply be +to ignore actualities.”</p> + +<p>After the first trials, Ruby Bates had returned to Depot Street. +On January 5, 1933, she sat down at the kitchen table and wrote +a letter to a “Dearest Earl,” evidently a successor in interest to +Lester Carter. In it, she told him that “those Negroes did not +touch me or those white boys ... i know it was wrong too let +those Negroes die on account of me i hope you will believe my +statement because it is the gods truth ... i wish those Negroes +are not Burnt on account of me.” The messenger to whom she +gave the letter never delivered it. Ten minutes after he started +out, he was in the Huntsville lockup, accused of starting a street +fight. The police turned the letter over to the prosecution and +it took the I.L.D. until the end of January to get a court +order permitting its attorneys to photostat it.</p> + +<p>On March 6th, a motion for a change of venue was granted +by Judge Hawkins and Decatur was selected as the <i>mise en +scène</i> in a case that was now as well known in Berlin and Paris +as it was in Birmingham and Memphis. A week later, William<span class="pagenum" id="Page_129">[Pg 129]</span> +Patterson, the I.L.D.’s executive secretary, persuaded Samuel S. +Leibowitz, who, at thirty-nine, was New York’s best known +criminal lawyer, to come south and see what he could do to +convince twelve Morgan County jurymen to give “this poor +scrap of colored humanity a fair, square deal....” Act II was +about to begin.</p> + +<p>In Kilby’s death row, Guard L. J. Burrs told the defendants +to get ready for a trip to town. On the first day of spring, +they were taken to the Jefferson County Jail in Birmingham to +await their second trials. Six days later, Patterson’s began in +Decatur’s white-columned courthouse before Judge James E. +Horton who, according to the defendant, “looked like pictures +of Abe Lincoln.” This was to be no one-day outing. To counteract +Leibowitz, Thomas Knight, Jr., Alabama’s Attorney General, +with State Solicitor Bailey and Morgan County Circuit Solicitor +Wade Wright at his elbow, entered the lists for Alabama. On +March 27th, Horton granted the State’s motion to sever Patterson’s +case from those of the other defendants and, on the following +morning, his trial was off and running.</p> + +<p>Leibowitz’s opening gambit was to move to dismiss the indictment +because Negroes had been systematically excluded from the +grand jury rolls of Jackson County. According to Section 8603 +of the Alabama Code, all male citizens between the ages of +twenty-one and sixty-five who could read English and had not +been convicted of any offense involving moral turpitude could +serve on grand and petit juries if they were “generally reputed +to be honest and intelligent men, and are esteemed in the community +for their integrity, good character and sound judgment.” +Literacy could be waived if the prospective juror was a “freeholder +or householder.”</p> + +<p>As far as grand juries were concerned, evidently not one of the +more than six hundred adult male Negroes in Jackson County +had ever met the requirements of Section 8603. Jefferson E. +Moody, a member of the Jury Commission from 1930 to 1931, +couldn’t remember seeing any Negroes on the list. C. A. Wann, +who had been Clerk of the Circuit Court for five years, said, “I +do not know of one single instance where a Negro had served +on a grand jury in Jackson County, in all my experience.” +Hamlin Caldwell, a court reporter for the Ninth Judicial Circuit,<span class="pagenum" id="Page_130">[Pg 130]</span> +who hadn’t missed a session in Jackson County for twenty-four +years, testified that he had “never seen a colored man on +the grand jury....” J. S. Benson was the editor of <i>Progressive +Age</i>, a Scottsboro newspaper. Convinced that no Negro could +possibly qualify as a grand juror (“They all steal”), he had +“never known of a single instance where any Negroes were put +on the jury roll.”</p> + +<p>Then the defense called a number of Jackson County Negroes +who seemed to meet the standards of 8603. John Sandford, a +fifty-year-old plasterer, who could read and write and had no +criminal record, swore that he had “never been put on a jury +roll and have never been examined by any Jury Commission as +to my qualifications....” He said that he knew a great many +eligible Negroes in the county who had also never been called +for jury service. Mark Taylor, who was a member of the District +No. 88 School Board, and Travis Mosely, who owned real property +in Scottsboro, told similar stories. Finally, after Leibowitz +had paraded five other seemingly qualified Negroes to the stand, +Horton called it quits and denied the defense motion to dismiss +the indictment.</p> + +<p>Then Leibowitz turned to another track. Anticipating a second +conviction, he decided to lay a more substantial foundation +for an eventual return to Washington and attacked the Morgan +County petit jury system as well. First, he called a great many +Decatur Negroes who clearly met all the statutory requirements +to sit on juries. Among others, there were Dr. Frank Sykes, a +dentist, Dr. N. E. Cashin, a physician, Reverend L. B. Womack, +the pastor of the First Missionary Baptist Church, and J. E. +Pickett, a teacher in the Negro High School for more than +eighteen years. He followed them with Arthur J. Tidwell, a +member of the Jury Board of the Morgan County, who stated +that “I have never seen a Negro serve on a jury, never heard of +one.” Neither had his two fellow commissioners.</p> + +<p>When Leibowitz threatened to call every person whose name +appeared on the jury roll “even if it breaks the state” and requested +subpoenas for almost four hundred other Morgan +County Negroes, Judge Horton gave up the ghost and conceded +that it looked as if Alabama deliberately excluded Negroes from +its juries. With these preliminaries out of the way, an all-white<span class="pagenum" id="Page_131">[Pg 131]</span> +jury was impaneled and Victoria Price, “in dress-up clothes,” +sashayed up to the witness stand. In twelve minutes, she repeated +much the same story she had told in Scottsboro, a year +back.</p> + +<p>Victoria proved to be more than a match for Leibowitz. When +he pointed to a thirty-two-foot model of the freight train which +he had brought with him from New York and asked her to point +out the gondola car, she spiked his guns by mumbling, “The gondola +I was in was much bigger than that thing.” Since she had +sworn at Scottsboro that she was twenty-one when the defendants +raped her, he asked her whether it wasn’t true that she was +actually four years older. “I ain’t that educated that I can figure +it out.” When he accused her of being “a little bit of an actress,” +she snapped back, “You’re a pretty good actor yourself.”</p> + +<p>As her cross-examination developed, it was apparent that the +defense was staking everything on getting Victoria to admit that +she had invented the rape story in order to keep from being +arrested for traveling across the Alabama-Tennessee line with +Carter and Gilley. This, the witness passed off as “some of that +Ruby Bates dope.” After Ruby’s letter to “Dearest Earl” had been +intercepted, it was obvious to both prosecution and defense alike +that the solid front presented by the Gondola Girls in the first +trials was about to split wide open. As the trial unfolded, Knight +did his best to prepare the jury for the anticipated appearance of +Ruby, who had been missing since early 1933, as a witness for +Patterson.</p> + +<p>Leibowitz provoked Victoria into admitting that she had been +married twice before, first to a Henry Presley and then to one +Ennis McClendon. However, she insisted on calling herself Mrs. +Price for reasons best known to herself. When Leibowitz suggested +that the presence of semen in her vagina might have been the +result of some shenanigans in a hobo jungle just outside of Chattanooga +the night before the freight ride, she screamed, “You +can’t prove it!” But, in the main, Knight was successful in blocking +most questions concerning Victoria’s previous condition of +rectitude or her sexual activities on the nights of March 23rd and +24th.</p> + +<p>After Dr. Bridges, Lee Adams, Orry Dobbins and Tom Taylor +Rousseau had repeated their 1931 stories, Knight called Art<span class="pagenum" id="Page_132">[Pg 132]</span> +Woodall who had previously testified that he had found Victoria’s +pen knife in Norris’s pocket. Now, he insisted that he couldn’t +remember which Negro had the knife, but whoever it was had +told him that he had taken it “from one of the white girls.” When +it was shown to Mrs. Price, she immediately identified it as hers +and swore that it had been held against her throat during the +rapes. This testimony so delighted the Attorney General that he +couldn’t refrain from applauding the witness and had to be +taken from the courtroom to regain his composure.</p> + +<p>All of the defendants except Norris, Weems and Roy Wright +took the stand. Knight threw their previous admissions at them +but each one now insisted that, not only had he not attacked any +white girls, but that he had not seen any other defendant do so. +Any incriminating statements they had made at Scottsboro had +been beaten or extorted from them. As Patterson put it, “We +was scared and I don’t know what I said. They told me if we +didn’t confess, they’d kill us, give us to the mob outside.” They +were followed by Dr. E. E. Reisman, a Chattanooga gynecologist, +who said that much of Victoria’s testimony about her physical +condition did not coincide with what one would expect to see in +a woman who had been violently raped six times. Dr. Bridges had +previously admitted that the most he could “say about the whole +case is that both of these women showed that they had intercourse.”</p> + +<p>Lester Carter said he had first met Victoria when they both +were inmates of the Huntsville Jail. He confirmed that he and +Tiller had spent two nights with the girls in a hobo jungle and +that he had boarded the freight with them on the morning of +March 25th. He and the other six boys who had been in the gondola +had been held in custody in Scottsboro during the first +trials but had never been called as witnesses by the prosecution.</p> + +<p>Then the bailiff called out the name of Ruby Bates. Shortly +after the interception of her “Dearest Earl” letter, the I.L.D. had +sent her to New York City for safekeeping. There she had stayed +with Dr. Harry Emerson Fosdick, who had urged her to return to +Alabama and testify in Patterson’s behalf. Once the hubbub in +the courthouse had died down, Leibowitz went straight to the +point.</p> + +<div class="blockquot"> + +<p>Q. You testified at each of the trials at Scottsboro, didn’t you?</p> +<p><span class="pagenum" id="Page_133">[Pg 133]</span></p> +<p>A. Yes.</p> + +<p>Q. You said you saw six Negroes rape Victoria Price and six +raped you, didn’t you?</p> + +<p>A. Yes, but I was excited when I told it.</p> + +<p>Q. You told at Scottsboro that one held a knife at your +throat, and what happened to you was just the same that +happened to Victoria Price. Did someone tell you to say +that?</p> + +<p>A. Victoria Price told me to say that. I said it like she told +me to.</p> + +<p>Q. Did she say what would happen if you didn’t do as she +told you to?</p> + +<p>A. Yes, she said we might have to lay out a sentence in jail.</p> +</div> + +<p>She freely admitted that she had lied at the first trials because +“Victoria ... said we might have to stay in jail if we didn’t +frame a story for crossing the state line with men ... every time +she said ‘rape’ I did not know what rape was.”</p> + +<p>After the prosecution harangued the twelve Sand Mountain +farmers in the jury box with warnings about “justice ... bought +and sold in Alabama with Jew money from New York,” they retired +at 12:45 p.m. on April 9, 1933. Twenty-two hours later +their foreman handed a piece of paper up to Judge Horton. On +it, in large, laboriously printed letters, was Patterson’s death +warrant. “We find the defendant guilty as charged and fix the +punishment at death in the electric chair.” One week later, +Horton set June 16th as execution day.</p> + +<p>Patterson was returned to the Jefferson County Jail pending +a decision by Judge Horton on a motion filed by Brodsky on +April 16th asking for a new trial because the conviction was +against the weight of the evidence. In the interim, Knight prepared +to try the case of Charlie Weems and asked Horton to call +it for trial. But the judge refused to do so, feeling as he did that +statements made by both Leibowitz and Knight had contributed +to the “already heated atmosphere which surrounds this case.” +Back in New York, Leibowitz was referring to the jury as “those +bigots whose mouths are slits in their faces, whose eyes popped +out at you like frogs, whose chins dripped tobacco juice, bewhiskered +and filthy....” Knight was no less effusive in voicing his +opinion of “Jew justice.” Accordingly, Horton decided to adjourn<span class="pagenum" id="Page_134">[Pg 134]</span> +Weems’ trial “until such time when in [his] judgment a fair and +impartial trial may be had.”</p> + +<p>But the biggest surprise of all was yet to come. On June 22nd, +Horton announced that he had decided to grant Brodsky’s routine +motion for a new trial. Not only did he disbelieve Victoria +Price’s testimony, but he felt that the other evidence in the case +“preponderates in favor of the defendant.” His 108-page opinion +(which was to cost him his job at the next November elections) +clearly indicated that he had not believed a word that Victoria +had said. “The conclusion becomes clearer and clearer,” he +wrote, “that this woman was not forced into intercourse with all +of these Negroes upon that train, but that her condition was +clearly due to the intercourse that she had had on the night previous +to this time.”</p> + +<p>On November 20, 1933, Patterson went back to Decatur for +his third trial. This time the judge was William Washington +Callahan, who, according to Patterson, was “the toughest, most +freckle-faced, baldheaded man I was ever up against.” After +Leibowitz tried to show that seven Negro names now found on +the jury roll had been forged, the principal actors went through +their dreary lines again and, on December 1st, Patterson was +convicted for the third time. When Callahan imposed the death +sentence, he forgot to include the customary prayer for mercy. +Perhaps even God was tired of re-runs.</p> + +<p>A week later, Norris was also convicted and the two men were +sent back to Kilby’s death house. On June 28, 1934, Alabama’s +highest court affirmed the convictions and Leibowitz and Pollak +promptly appealed to the United States Supreme Court. On +April 1, 1935, Chief Justice Charles Evans Hughes announced +that both convictions had been reversed because Negroes had +been barred from grand and petit jury duty in Jackson and Morgan +Counties. The immediate result was that the Jackson County +Grand Jury returned new indictments for rape against all nine +boys. But something new had been added: for the first time in +as far back as Alabamans cared to remember, a Negro—one +Creed Conyer—sat on a grand jury.</p> + +<p>Haywood Patterson’s fourth trial began on January 20th, 1936, +before Judge Callahan again. The Scottsboro Defense Committee, +which was a composite of all the organizations which had been<span class="pagenum" id="Page_135">[Pg 135]</span> +involved in the case, was now running operations and Leibowitz +took the long trek south again. But the years didn’t seem to make +much difference as far as Morgan County juries were concerned +and Patterson was convicted once more. This time he was sentenced +to seventy-five years in prison. After the Alabama Supreme +Court affirmed his conviction, the ninth jury to listen to Victoria’s +tale of woe found Norris guilty and he was sentenced to death. +Andy Wright was then sentenced to ninety-nine and Charlie +Weems to seventy-five years. Ozie Powell pleaded guilty to assaulting +a deputy sheriff and was given twenty years in state prison.</p> + +<p>On July 24, 1937, after Weems and Powell were sentenced, “the +Scottsboro prosecution staff” announced that the charges against +Roy Wright, Olen Montgomery, Eugene Williams and Willie +Roberson were being dropped. “... after careful examination of +the testimony, every lawyer connected with the prosecution is +convinced that the defendants Willie Roberson and Olen Montgomery +are not guilty.” As for Roy Wright and Eugene Williams, +“After careful examination of +this crime one of these juveniles was 12 years old and the other +one was 13 ... the ends of justice would be met at this time by +releasing [them] on condition that they leave the state, never to +return.”</p> + +<p>Negotiations for the release of the remaining five went on during +the rest of 1937. On December 21st, Governor Bibb Graves +told three members of the Scottsboro Defense Committee that he +agreed that, if four of the defendants were not guilty, the remaining +five were equally innocent. “The position of the State is +untenable, with half out and half in on the same charges and +evidence ...” he told them. “When the cases come before me, I +intend to act promptly.” After ten months of technicalities, +Graves agreed to release all the imprisoned defendants, with the +exception of Ozie Powell, to the Defense Committee on Monday, +October 31, 1938. However, on October 29th, he wired the Committee +that he was forced to postpone their release.</p> + +<p>It was not until January 8, 1944, that Alabama decided to open +the gates of Kilby Prison to Andy Wright and Clarence Norris. +A few months later, Charlie Weems followed them through “the +little green gate” to the outside world. Ozie Powell was paroled +on June 16, 1946 and, two years later, Patterson escaped from<span class="pagenum" id="Page_136">[Pg 136]</span> +prison and fled to Michigan where Governor Mennen Williams +refused extradition. He died of cancer on August 22, 1952 in a +Michigan prison where he was serving a term for manslaughter. +Although Norris was picked up in 1944 as a parole violator, he +was finally released on September 26, 1946. Andy Wright suffered +the same fate in 1946 but gained his freedom a year later and +was last heard of in 1954 when he was picked up in Albany, N. Y., +for slashing his wife with a butcher knife.</p> + +<p>Perhaps the saddest episode of all occurred on August 16, 1959, +when Roy Wright, the youngest of the Scottsboro Boys, shot and +killed his wife in New York City because he thought that she had +been unfaithful to him. He then committed suicide and was +found dead on the floor of his Harlem apartment with an open +Bible by his side. According to Mrs. Bill (Bojangles) Robinson, +who, with her husband, had raised him after Leibowitz had +brought him north, “he made it a point through his life since +he came here to keep good company and to keep away from anything +that might get him into trouble. He didn’t want his background +on the Scottsboro thing hashed over again.”</p> +<hr class="full"> + +<div class="chapter"> +<p><span class="pagenum" id="Page_137">[Pg 137]</span></p> + +<h2 class="nobreak" id="c9">7</h2> +</div> + +<p class="u large"><i>A Traitor from Harvard</i></p> + +<p class="c xlarge">The United States of America</p> + +<p class="c xlarge"><i>versus</i></p> + +<p class="c xlarge">Alger Hiss</p> + + +<p>A few minutes after eleven o’clock on the morning of Tuesday, +August 3, 1948, a portly little man walked slowly to the front of +the Ways and Means Committee Room in which the House Committee +on Un-American Activities was holding an open session. +After he had been sworn, he sat down gingerly in a wooden chair +that was perched directly in front of a raised platform behind +which acting Chairman Karl Mundt and five of his colleagues +were ensconced. Robert Stripling, the Committee’s counsel, began +the hearing.</p> + +<div class="blockquot"> + +<p>Q. Will you state your full name?</p> + +<p>A. My name is David Whittaker Chambers.</p> + +<p>Q. Where and when were you born?</p> + +<p>A. I was born April 1, 1901, in Philadelphia.</p> + +<p>Q. How long have you been associated with <i>Time Magazine</i>?</p> + +<p>A. Nine years.</p> + +<p>Q. Prior to that time, what was your occupation?</p> + +<p>A. I was a member of the Communist Party and a paid functionary +of the party.</p> +</div> + +<p>The witness asked if he might read a prepared statement. In a +voice that was barely audible at the press table, he told of his +fifteen years’ service as a Soviet espionage agent. In 1939, two +years after he said that he had “repudiated Marx’ doctrines and +Lenin’s tactics,” he had gone to Washington to report what he +knew “about the infiltration of the United States Government by<span class="pagenum" id="Page_138">[Pg 138]</span> +Communists.” At that time, he had told Assistant Secretary of +State Adolph A. Berle, Jr., that there was an underground Communist +movement in the government. “The head of the underground +group at the time I knew it was Nathan Witt, an attorney +for the National Labor Relations Board. Later, John Abt +became the leader. Lee Pressman was also a member of this +group, as was Alger Hiss, who, as a member of the State Department, +later organized the conferences at Dumbarton Oaks, San +Francisco, and the United States side of the Yalta Conference.”</p> + +<p>In New York City, Alger Hiss, who was in the middle of his +second year as the president of the Carnegie Endowment for +International Peace, had just returned from a month’s vacation in +Vermont. As soon as he heard of Chambers’ charges, he sent a +telegram to Chairman Mundt in which he stated, “I do not know +Mr. Chambers and insofar as I am aware have never laid eyes on +him.” He requested permission to “appear before your Committee +to make these statements formally and under oath.” Hiss +suggested Thursday, August 5th, and hoped that “that will be a +convenient time from the Committee’s point of view for me to +appear.” Mundt immediately wired back that it was.</p> + +<p>On Thursday morning, Hiss had his chance. In the large Caucus +Room in the Old House Office Building, he told the Committee +that he had never heard of Whittaker Chambers until +1947 “when two representatives of the Federal Bureau of Investigation +had asked me if I knew him.... I said I did not know +Chambers. So far as I know, I have never laid eyes on him, and +I should like to have the opportunity to do so.” As far as +Chambers’ accusations were concerned, they were all “complete +fabrications.” The witness was willing to let his Government +service speak for itself.</p> + +<p>On Tuesday, Chambers had testified that, before he had broken +with the underground, he had tried to persuade Alger Hiss to do +the same. In a tearful scene at the Hiss home, his friend had “absolutely +refused to break.” Hiss denied that any such incident +had ever occurred and repeated his statement that, as far as he +knew, the name Chambers “means absolutely nothing to me.” +When he was shown a recent photograph of Chambers, the witness +insisted that he “would much rather see the individual.... +I would not want to take an oath that I had never seen that man.<span class="pagenum" id="Page_139">[Pg 139]</span> +I would like to see him and then I think that I would be better +able to tell whether I had ever seen him.” When Mundt told him +that Chambers was not present in the hearing room, Hiss replied, +somewhat sharply, that “I hoped he would be.”</p> + +<p>Even though the acting chairman wondered publicly “what +possible motive a man who edits <i>Time Magazine</i> could have for +mentioning Alger Hiss in the same breath as Nathan Witt, Lee +Pressman, John Abt and Harold Ware, he thanked Mr. Hiss for +his “very cooperative attitude” and “forthright statements.” +Furthermore, he stated that he had been impressed by the fact +that the witness was the first of all the people named by Elizabeth +Bentley and the other apostates to come forward voluntarily and +deny his guilt. Even Mississippi’s Rankin, who was not known for +his kinship with intellectuals, congratulated Hiss for not taking +advantage of the Fifth Amendment and for appearing without a +lawyer “to tell him what to say.” All in all, it had not been a +bad day for the gentleman from New York.</p> + +<p>After Hiss had denied knowing Chambers, Stripling informed +Mundt that “there is a very sharp contradiction here in the testimony. +I certainly suggest Mr. Chambers be brought back before +the Committee and clear this up.” The chairman agreed and +appointed a sub-committee composed of California’s Nixon, +Louisiana’s Hébert and Pennsylvania’s McDowell to question +Chambers in executive session. Two days later, the sub-committee +met in Room 101 of New York’s United States Courthouse. With +Nixon taking the lead, Chambers was questioned closely about +his claimed acquaintance with Alger Hiss and his family. The +witness’ answers revealed such an intimate knowledge of the +Hisses that it was apparent that he had either known them extremely +well or done considerable homework.</p> + +<p>First of all, Hiss had known him only as Carl, his party name. +They had been the best of friends and he had spent a great deal +of time at the various Hiss homes in Baltimore and Washington. +The witness’ knowledge of what Hiss later referred to as “petty +housekeeping details” was apparently inexhaustible. He knew +that Mrs. Hiss called her husband “Hilly,” that the Hisses had a +cocker spaniel, and that “they both had the same hobby—amateur +ornithologists, bird observers.” In fact, he remembered that “once,<span class="pagenum" id="Page_140">[Pg 140]</span> +they saw, to their great excitement, a prothonotary warbler.”</p> + +<div class="blockquot"> + +<p>MR. McDOWELL: A very rare specimen?</p> + +<p>MR. CHAMBERS: I never saw one. I am also fond of birds.</p> +</div> + +<p>When he had first met the Hisses, they owned a Ford roadster +which, he remembered, “was black and it was very dilapidated.” +In 1936, they had purchased a new Plymouth, and J. Peters, the +head of the underground organization, had helped them dispose +of the Ford through a Communist service station in Washington. +He described Hiss as a slender man, “about 5 feet 8 or 9,” who +walked with “a slight mince;” Priscilla Hiss was “a short, highly +nervous, little woman” who had “a habit of blushing red when +she is excited or angry, fiery red.” Timmy Hobson, Mrs. Hiss’ son +by a previous marriage, “was a puny little boy, also rather nervous.” +The boy’s father was paying for his education but the +Hisses were diverting “a large part of that money to the Communist +Party.”</p> + +<div class="blockquot"> + +<p>MR. NIXON: Hiss told you that?</p> + +<p>MR. CHAMBERS: Yes, sir.</p> + +<p>MR. NIXON: Did he name the Communist Party as the recipient?</p> + +<p>MR. CHAMBERS: Certainly.</p> + +<p>MR. NIXON: He might have said simply “the party.” +Could it have been the Democratic Party or Socialist +Party?</p> + +<p>MR. CHAMBERS: No.</p> +</div> + +<p>Hiss had told him that he had a sister who lived with his +mother. In fact “he once drove me past their house, which as I +recall, was on or near Linden Street.” But he had never seen +either the mother or the sister. As for Hiss’ younger brother, +Donald, he had met him “within the same week in which I met +Alger Hiss.” But, whereas “my relationship with Alger Hiss +quickly transcended our formal relationship,” Chambers’ contact +with Donald was confined to collecting party dues from him. He +couldn’t remember much about Donald except that he was married +to a non-Communist and that “everybody was worried about +her.” He had a general impression that the younger Hiss “was +much less intelligent than Alger” and that “he was interested in +the social climb.”</p> + +<p>Mrs. Hiss’ maiden name was Priscilla Fansler and “she came<span class="pagenum" id="Page_141">[Pg 141]</span> +from the Great Valley near Paoli, Pa.” In fact, Chambers had +once taken a trip with the family, and Mrs. Hiss had shown him +“the road down which their farm lay.”</p> + +<div class="blockquot"> + +<p>MR. NIXON: You drove with them?</p> + +<p>MR. CHAMBERS: Yes.</p> + +<p>MR. NIXON: Did you ever go on a trip with them other than +by automobile?</p> + +<p>MR. CHAMBERS: No.</p> + +<p>MR. NIXON: Did you ever stay overnight on any of these +trips?</p> + +<p>MR. CHAMBERS: No.</p> +</div> + +<p>While he was fairly certain that Mr. Hiss did not go to church +because he was forbidden to do so, he did not know about his +wife who “came from a Quaker family.”</p> + +<p>Before subsiding, Nixon asked the witness if he had seen Hiss +since 1938. Chambers’ answer was as definite as it could be. “No: +since the time I went to his house and tried to break him away, +I have never seen him since.” Hébert then took over and exhibited +a marked interest in the house occupied by the Hiss ménage. +When Chambers had first met Hiss “he was living on Twenty-eighth +Street.” Some time later, he had moved to a house in +Georgetown, possibly “on the corner of P Street.” He had the +impression “it was a three-story house with a kind of porch in +back where people sat.” After that, “he moved to a house on an +up-and-down street, a street that would cross the lettered street, +probably just around the corner from the other house and very +near to his brother Donald.” This house had a basement, dining +room and a small backyard. “I think he was there when I broke +with the Communist Party.” When he tried to persuade Hiss to +leave the Party, too, the latter had been living in a house “beyond +Wisconsin Avenue.”</p> + +<p>Before the sub-committee adjourned at 1:10 p.m., Nixon suddenly +asked Chambers if he was “willing to submit to a lie detector +test on this testimony.” The witness said he would if Nixon +thought it was necessary.</p> + +<div class="blockquot"> + +<p>MR. NIXON: You are that confident?</p> + +<p>MR. CHAMBERS: I am telling the truth.</p> +</div> + +<p>Before Messrs. Nixon, Hébert and McDowell returned to Washington<span class="pagenum" id="Page_142">[Pg 142]</span> +that afternoon, they had decided to recommend to the +full Committee that Hiss be recalled.</p> + +<p>On Friday, August 13th, J. Parnell Thomas, the regular chairman, +sent a telegram to Hiss, asking him to appear before the +Committee the following Monday. That same Friday, Donald +Hiss denied at a public hearing “every statement made by +Mr. Chambers with respect to me. I am not, and never have been, +a member of the Communist Party, or of any formal or informal +organization affiliated with, or fronting in any manner whatsoever +for, the Communist Party.” He had belonged to nothing +more subversive than the Y. M. C. A., the Washington Racquet +Club and the Harvard Law School Association. As for his accuser, +“I have no recollection of ever having met any person by the +name of D. Whittaker Chambers nor do I recognize his photograph +which I have seen in the public press.”</p> + +<div class="blockquot"> + +<p>MR. NIXON: As I understand your statement, you have made +an unqualified statement that you have never known a +man by the name of Carl who resembled that man?</p> + +<p>DONALD HISS: I have never known that man by the name of +Chambers, Carl, or any other name, sir.</p> +</div> + +<p>When he suggested that whoever was lying ought to go to jail, +Mundt seconded the motion.</p> + +<p>On August 16th, Alger Hiss faced the Committee once more, +this time in executive session. Reassured by the fact that the +President of the United States had publicly labeled his case as “a +red herring,” deliberately designed to hide the failures of the +Eightieth Congress, Hiss eased himself into the witness chair with +a visible air of confidence. Again, it was Nixon who asked most of +the questions. The first order of business was to try to determine +whether Hiss had ever known Chambers, under one name or +another. Nixon handed the witness two photographs and asked +him “if you can remember that person either as Whittaker +Chambers or as Carl or as any other individual you have met.”</p> + +<p>This time, Hiss admitted that “the face had a certain familiarity.” +Although, he would still like to see Chambers face to face, +he was “not prepared to say that I have never seen the man +whose pictures are now shown me.” But that was as far as he +cared to go until he had the opportunity of “seeing the man,<span class="pagenum" id="Page_143">[Pg 143]</span> +hearing him talk, getting some much more tangible basis for +judging the person and the personality.”</p> + +<div class="blockquot"> + +<p>MR. NIXON: Would your answer be any different if this individual +were described to you as one who had stayed overnight +in your house on several occasions?</p> + +<p>MR. HISS: I think Mr. Nixon, let me say this: In the course of +my service in the government ... I have had a great many +people who have visited in my house. If this is a picture +of anyone, I would find it very difficult to believe that that +individual could have stayed in my house when I was +there on several occasions overnight and his face not be +more familiar than it is.</p> +</div> + +<p>When the chairman asked him whether he thought he would +recognize a man who had spent a week in his house in the past +fifteen years, Hiss was sure that he would “if he hadn’t had a +face-lifting.”</p> + +<div class="blockquot"> + +<p>MR. THOMAS: No doubt in your mind?</p> + +<p>MR. HISS: I have no doubt whatsoever.</p> +</div> + +<p>After a brief recess, Hiss announced that “I have written a +name on this pad in front of me of a person whom I knew in +1933 and 1934 who not only spent some time in my house but +sublet my apartment.” The name of this man was George Crosley +and the witness remembered him as a free-lance writer who had +occasionally interviewed him when he was counsel to the Nye +Committee. As he recalled it, “this fellow was writing a series of +articles ... which he hoped to sell to one of the magazines.” In +June of 1935, when the Hisses had purchased the P Street house, +they had rented their Wardman Park apartment to Crosley and +his family which consisted of a “strikingly dark” wife and an infant +daughter. Because all of Crosley’s furniture hadn’t arrived, +“we put them up 2 or 3 nights in a row, his wife and little baby.”</p> + +<p>He had also thrown in an old Ford with the apartment. It was +an early Model A coupé with “a sassy little trunk on the back.” +He had purchased a new car—a Plymouth sedan—and, since +Crosley “wanted a way to get around,” he had decided to let him +have the Ford.</p> + +<div class="blockquot"> + +<p>MR. NIXON: You gave this Ford car to Crosley?</p> + +<p>MR. HISS: Threw it in along with the apartment and charged +the rent and threw the car in at the same time.</p> +<p><span class="pagenum" id="Page_144">[Pg 144]</span></p> +<p>MR. NIXON: In other words, added a little to the rent to +cover the car?</p> + +<p>MR. HISS: No; I think I charged him exactly what I was +paying for the rent and threw the car in in addition. I +don’t think I got any compensation.</p> + +<p>MR. STRIPLING: You just gave him the car?</p> + +<p>MR. HISS: I think the car just went right in with it.</p> +</div> + +<p>No, he had not given Crosley a bill of sale; “I think I just simply +turned it over to him.” He didn’t know whether the writer had +recorded the title or not.</p> + +<p>He had driven Crosley around Washington in the Ford on +several occasions. Once he had given him a lift to New York +“when I was going to make a trip to New York City anyway.”</p> + +<div class="blockquot"> + +<p>MR. STRIPLING: Was Mrs. Hiss along?</p> + +<p>MR. HISS: That I wouldn’t recall. She may have been.</p> + +<p>MR. STRIPLING: Did you go to Paoli?</p> + +<p>MR. HISS: If Mrs. Hiss was along; yes.</p> +</div> + +<p>His tenant had left the apartment when the lease expired in +September. Although, Crosley had never paid his rent, Hiss had +lent him some money but “never got paid back.” He had not +heard of him since 1935.</p> + +<div class="blockquot"> + +<p>MR. STRIPLING: You wouldn’t say positively George Crosley +and this person are the same?</p> + +<p>MR. HISS: Not positively.</p> + +<p>MR. STRIPLING: You would not say positively?</p> + +<p>MR. HISS: I think they are not. That would be my best impression +from the photographs.</p> +</div> + +<p>At one point in the questioning, Hiss stated that both he and +his wife were amateur ornithologists. McDowell, who was no +mean bird watcher himself, asked him if he had ever seen a +prothonotary warbler. The witness replied that he had, “right +here on the Potomac.” McDowell replied that he once had observed +one in Arlington. Hiss, lost in reverie, seemed to forget +that he was in a hearing room. “They come back and nest in +those swamps,” he told McDowell. “Beautiful yellow head, a +gorgeous bird. Mr. Collins is an ornithologist, Henry Collins. +He’s a really good ornithologist, calling them by their Latin +names.” Nixon brought him abruptly back to earth with a question +about the schools his son had attended from 1934 to 1937.</p> + +<p><span class="pagenum" id="Page_145">[Pg 145]</span></p> + +<p>The three-and a half hour hearing drew to a close with a +lawyers’ discussion between Hiss and Nixon as to the reliability +of the lie detector test. Nixon had asked the witness whether he +was willing to submit to Dr. Leonardo Keeler’s polygraph test, +reminding him that Chambers had agreed to do so. Hiss wanted +to consult further. He had “talked to people who have seen ... +Dr. Keeler’s own test and that the importance of a question registers +more emotion than anything else.” While he didn’t want to +beg the question, he “would rather have a chance for further +consultation before I gave you the answer.” But he would be interested +in knowing if Mr. Nixon had ever used the test in his +own law practice.</p> + +<div class="blockquot"> + +<p>MR. NIXON: No; I have not.</p> + +<p>MR. HISS: But you do have confidence in it?</p> + +<p>MR. NIXON: Frankly, I have made a study of it in the last +week before I put the question. In fact, for the last two +weeks I have been studying it and have been in correspondence +with Mr. Keeler.</p> +</div> + +<p>Ten days later, Hiss wrote to the chairman and informed him +that since “no Federal Court in the United States relies upon any +‘lie detector’ ... I do not at present feel in a position to make a +final decision with respect to the Committee’s suggestion.”</p> + +<p>Before Hiss left Washington, he was asked to return at 10:30 +a.m. on August 25th when he and Chambers would “have an +opportunity to confront one another.” The next morning, a +member of the Committee’s staff telephoned him at his New +York office and asked him if he would be able to meet with Mr. +McDowell later that afternoon. Hiss replied that he would. +Shortly before 5:30 p.m., McDowell called and invited him to +come over to Room 1400 of the Hotel Commodore. Hiss asked +Charles Dollard, a colleague at the Carnegie Corporation, to +accompany him, and the two men walked the few blocks to the +Commodore. When they entered the hotel suite, Hiss was asked +to sit in a chair facing Nixon and McDowell, the only two members +of the Committee present.</p> + +<p>A few minutes later, a door behind him opened and Chambers +was ushered into the room. Nixon asked the two men to stand +and face each other. “Mr. Hiss,” he said, “the man standing here<span class="pagenum" id="Page_146">[Pg 146]</span> +is Mr. Whittaker Chambers. I ask you now if you have ever +known that man before.”</p> + +<div class="blockquot"> + +<p>MR. HISS: May I ask him to speak? Will you ask him to say +something?</p> + +<p>MR. NIXON: Yes. Mr. Chambers, will you tell us your name +and business?</p> + +<p>MR. CHAMBERS: My name is Whittaker Chambers.</p> + +<p>MR. HISS: Would you mind opening your mouth wider?</p> + +<p>Will you go on talking?</p> + +<p>MR. CHAMBERS: I am senior editor of <i>Time Magazine</i>.</p> + +<p>MR. HISS: May I ask whether his voice, when he testified +before, was comparable to this?</p> + +<p>MR. McDOWELL: I would say it is about the same now as we +have heard.</p> + +<p>MR. HISS: I think he is George Crosley, but I would like to +hear him talk a little longer.</p> +</div> + +<p>After Chambers had read a portion of a <i>Newsweek</i> article about +Truman’s failure to appoint a new Secretary of Labor to replace +Lewis B. Schwellenbach, Hiss announced that, although his voice +was less resonant than that of the man he had once known, “I +believe ... that he must be George Crosley.” But the man he had +known in 1934 and 1935 had had terrible teeth. The teeth of the +man he was now asked to identify “look to me as though they +have been improved upon or that there has been considerable +dental work done since I knew George Crosley.” Nixon asked +Chambers whether he had “had any dental work since 1934 of a +substantial nature.” It seemed that he had, “some extractions and +a plate.”</p> + +<p>But Hiss still wasn’t certain. Chambers looked “very different +in girth and on other appearances—hair, forehead, and so on, +particularly the jowls.” But it was obvious to everyone in the +room that he was beating a slow but steady retreat. After Nixon +made him go over his previous testimony about subletting the +29th Street Apartment to the “Crosleys,” He asked for—and +received—permission to question his accuser.</p> + +<div class="blockquot"> + +<p>MR. HISS: Did you ever go under the name of George Crosley?</p> + +<p>MR. CHAMBERS: Not to my knowledge.</p> + +<p>MR. HISS: You did not?</p> + +<p>MR. CHAMBERS: No; I did not.</p> +<p><span class="pagenum" id="Page_147">[Pg 147]</span></p> +<p>MR. HISS: Did you ever spend any time with your wife and +child in an apartment on Twenty-ninth Street in Washington +when I was not there because I and my family were +living on P Street?</p> + +<p>MR. CHAMBERS: I most certainly did.</p> + +<p>MR. HISS: Would you tell how you reconcile your negative +answers with this affirmative answer?</p> + +<p>MR. CHAMBERS: Very easily, Alger. I was a Communist and +you were a Communist.</p> +</div> + +<p>Finally, Hiss was “perfectly prepared to identify this man as +George Crosley.” When Stripling asked him if he thought he +could produce three people who would swear that they, too, had +known Chambers as Crosley, Hiss said that he would try. The +only ones he could think of offhand were Stephen Raushenbush, +Robert Wohlford and Elsie Gullender who had worked with +him on the Nye Committee in 1935. But he couldn’t remember +whether Chambers had ever called on any of these people.</p> + +<p>McDowell then turned to Chambers and asked him whether +he was prepared to identify Hiss as the man “who was a member +of the Communist Party at whose home you stayed.” He was.</p> + +<div class="blockquot"> + +<p>MR. McDOWELL: You make the identification positive?</p> + +<p>MR. CHAMBERS: Positive identification.</p> +</div> + +<p>While Chambers was talking, Hiss rose from his chair and walked +over toward him. Livid with anger, he invited “Mr. Whittaker +Chambers to make those same statements out of the presence of +this Committee without their being privileged for suit for +libel. I challenge you to do it and I hope you will do it damned +quickly.” By the time he had finished hurling his gauntlet, he +was so close to Chambers that Louis J. Russell, one of the Committee’s +investigators, threw himself between the two men. “I am +not going to touch him,” Hiss exclaimed. “You are touching me.” +McDowell ordered Hiss to sit down and the hearing was adjourned +for a few minutes to clear the air.</p> + +<p>The great confrontation was over. Before McDowell brought +it to its official close at 7:45 p.m., he announced that, in view of +the testimony, the full Committee would meet in Washington on +August 25th and that both men would be subpoenaed to appear +before it. Hiss told him that he would be happy to show up +without putting the Committee to the trouble of serving him<span class="pagenum" id="Page_148">[Pg 148]</span> +with a subpoena. But there was still some unfinished business, he +told Messrs. McDowell and Nixon—he had been asked to “make +arrangements for Mrs. Hiss to come down from Vermont to meet +in executive session with a subcommittee” and he was prepared +to oblige if her presence was still required. Because Hiss was uncertain +about schedules, it was agreed that he would telephone +Mr. Nixon at the Commodore as soon as Mrs. Hiss arrived in +town.</p> + +<div class="blockquot"> + +<p>MR. HISS: May I come with her?</p> + +<p>MR. McDOWELL: Yes.</p> + +<p>MR. HISS: Thank you. Am I dismissed? Is the proceeding +over?</p> + +<p>MR. McDOWELL: Any more questions to ask of Mr. Hiss?</p> + +<p>MR. NIXON: I have nothing.</p> + +<p>MR. McDOWELL: That is all. Thank you very much.</p> + +<p>MR. HISS: I don’t reciprocate.</p> + +<p>MR. McDOWELL: Italicize that in the record.</p> + +<p>MR. HISS: I wish you would.</p> +</div> + +<p>Later that evening, Hiss called Nixon and told him that his +wife had arrived in town and would be available as originally +scheduled. The next morning, the Hisses, accompanied by Dollard, +met with Nixon at the Commodore. The hearing took only +ten minutes. After Mrs. Hiss had affirmed that she would tell +the truth, she stated that she had known a man by the name of +George Crosley between 1934 and 1937. She remembered that +Crosley and his wife had spent a few days with them before moving +into their old apartment on P Street. As far as she could +recall, she had never taken a trip with this man whom she described +as “a little too smiley.” Before Nixon dismissed her, she +informed him that, if he wanted her opinion, the man who +had called himself Crosley was nothing but “a sponger.”</p> + +<p>The next act in what was rapidly beginning to have all the +appearances of a Greek tragedy was scheduled to take place on +August 25th in the Caucus Room of the Old House Office Building. +Long before Chairman Thomas gavelled the hearing into +being at 10:30 a.m., the chamber was filled to overflowing with +more people than it had ever held before. Television cameramen, +newspaper photographers, radio commentators, and the less +spectacular members of the Fourth Estate crowded every corner<span class="pagenum" id="Page_149">[Pg 149]</span> +of the long room. Thomas welcomed them all in the name of the +Committee. “We are glad,” he announced, “to have as many representatives +of the American public as is possible to crowd into this +room today.” He was also mighty happy to put Hiss and Chambers +on view together before a nationwide audience.</p> + +<p>The first order of business was to determine whether anyone +but Alger Hiss had ever known of George Crosley’s existence. At +the Commodore confrontation, Hiss had suggested the names of +three former Nye Committee employees whom he thought might +have run into Crosley when the latter was scrounging for magazine +fodder. Stripling’s investigators had discovered that one +was dead, another could not be traced, and the third couldn’t +remember ever having met anyone named Crosley. A search of +the records of the Library of Congress, the Copyright Division +and the Public Catalogue had uncovered only two writers by +that name—an obscure 1905 poet and a doctor who had published +a treatise on the effects of ultra-violet light. If George +Crosley had ever existed, he was now a case for the Missing Persons +Bureau.</p> + +<p>With Crosley out of the way, the Committee turned to Fords +and photostats. Hiss had previously testified that after he had +purchased a new Plymouth in the Spring of ’35, he had either +given Crosley-Chambers “the use of the car” or “the car outright.” +According to the records of the District of Columbia’s +Motor Vehicles and Traffic Bureau, Hiss had bought the Plymouth +on September 7, 1935. If the dates were correct, then Hiss +had given Chambers the old Ford <i>before</i> he had obtained the +Plymouth.</p> + +<p>Nixon was obviously fascinated by the business of the cars. +Would Mr. Hiss enlighten him as to whether he had sold, or +given the car to Crosley?</p> + +<div class="blockquot"> + +<p>MR. HISS: I gave Crosley, according to my best recollection....</p> + +<p>MR. NIXON: Well, now, just a moment on that point. I don’t +want to interrupt you on that ‘to the best of my recollection’ +but you certainly can testify ‘Yes’ or ‘No’ as to +whether you gave Crosley a car. How many cars have you +given away in your life, Mr. Hiss?</p> + +<p>MR. HISS: I have only had one old car of a financial value of<span class="pagenum" id="Page_150">[Pg 150]</span> +$25 in my life. That is the car that I let Crosley have the +use of.</p> +</div> + +<p>When Mundt reminded the witness that, a week earlier, he had +sworn that he had “sold him an automobile,” Hiss promptly +swallowed his words and conceded that, if that’s what the transcript +said, it must be correct.</p> + +<p>After Nixon had read into the record most of Hiss’ previous +testimony about the Ford roadster, he confessed to the chairman +that he was “amazed to hear Mr. Hiss say this morning that he +can only testify to the best of his recollection as to whether he +ever gave Crosley a car at all, that he is not sure as to whether or +not he transferred the car to Crosley, that he might have given +it to him for his use only, and that he is not even sure when the +transaction occurred....” As far as he was concerned, Hiss ought +to “tell us exactly what did happen to that car.”</p> + +<p>The witness was only too happy to oblige. His testimony, +“based upon the best recollection I have, is that I gave Crosley +the use of the car, as I gave him the use of the apartment.” He +thought that the transfer had taken place at the same time as +he had subleased the apartment to the Crosleys but it could have +taken place “several months after the rental transaction.” When +Mundt asked him whether he had ever given the Ford “to anybody +else in any way besides to Mr. George Crosley,” Hiss insisted +that he could not answer the question “without consulting +the records.”</p> + +<p>The reason for the Committee’s preoccupation with the Ford’s +disposition became clear when Stripling called Louis Russell, +one of its own investigators. Russell testified that he had checked +the records of the District’s Director of Vehicles and Traffic and +that he had discovered that one Alger Hiss had assigned a 1929 +Ford automobile to the Cherner Motor Company on July 23, +1936. He identified a photostatic copy of the assignment of +title as a copy of the original document which he had seen on +file. It was signed by Hiss and notarized by W. Marvin Smith, an +attorney in the Solicitor General’s office.</p> + +<p>After some shilly-shallying about “photostatic signatures,” Hiss +admitted that “it looks like my signature to me, Mr. Chairman.” +He was also prepared to go a little further and own that Mr. +Smith had indeed notarized his signature. When Stripling produced<span class="pagenum" id="Page_151">[Pg 151]</span> +a sales slip which indicated that the vehicle had been sold +by the Cherner Motor Company to one William Rosen a few +hours after Hiss had turned it in, that was the last trace of the +saucy little car that was carrying the Committee to glory.</p> + +<p>Just before the noon recess, Hébert wanted to ask a question.</p> + +<div class="blockquot"> + +<p>MR. HÉBERT: Mr. Hiss, now that your memory has been refreshed +by the development of the last few minutes, do +you recall the transaction whereby you disposed of that +Ford that you could not remember this morning?</p> + +<p>MR. HISS: No, I have no present recollection of the disposition +of the Ford, Mr. Hébert.</p> + +<p>MR. HÉBERT: In view of the refreshing of your memory that +has been presented here this morning?</p> + +<p>MR. HISS: In view of that, and in view of all the other developments.</p> + +<p>MR. HÉBERT: You are a remarkable and agile young man, +Mr. Hiss.</p> +</div> + +<p>In the afternoon, Hiss read a letter he had written to Chairman +Thomas the preceding day. After spelling out for the Committee +his record as a public servant, he read a list of questions which +he wanted Chambers to answer in public. He was informed that +Chambers would “take the stand directly after you finish on the +stand today.” Before he subsided, Hiss challenged Chambers “to +make the statements about me with respect to Communism in +public that he has made under privilege of this Committee.”</p> + +<p>It had grown dark when Chambers took the stand, and Thomas +ordered the lights turned on. Led by Nixon and Stripling, the +portly witness repeated much of his former testimony about Hiss +and Communism. Since his predecessor on the stand had raised a +question about the editor’s mental condition, Nixon asked him +whether he had ever been “treated for mental illness.”</p> + +<div class="blockquot"> + +<p>MR. CHAMBERS: Yes; I have never been treated for a mental +illness—period.</p> + +<p>MR. NIXON: You have never been treated in a mental institution?</p> + +<p>MR. CHAMBERS: Never.</p> + +<p>MR. NIXON: Never. Have you ever been treated for a mental +illness or been in an institution during the past four years, +which was the charge made?</p> +<p><span class="pagenum" id="Page_152">[Pg 152]</span></p> +<p>MR. CHAMBERS: Of course, not; and anyone at <i>Time Magazine</i> +can tell you that.</p> +</div> + +<p>Just before eight o’clock, Nixon wanted to know if Mr. Hiss +was the witness’ closest friend. Chambers replied that he “was +certainly the closest friend I ever had in the Communist Party.”</p> + +<div class="blockquot"> + +<p>MR. NIXON: Mr. Chambers, can you search your memory +now to see what motive you can have for accusing Mr. +Hiss of being a Communist at the present time?</p> + +<p>MR. CHAMBERS: What motive can I have?</p> + +<p>MR. NIXON: Yes, I mean do you—is there any grudge that +you have against Mr. Hiss over anything that he has done +to you?</p> + +<p>MR. CHAMBERS: The story has spread that, in testifying +against Mr. Hiss, I am working out some old grudge, or +motives of revenge or hatred. I do not hate Mr. Hiss. We +were close friends, but we are caught in a tragedy of history. +Mr. Hiss represents the concealed enemy against +which we are all fighting, and I am fighting. I have testified +against him with remorse and pity, but in a moment of +history in which this nation now stands, so help me God, +I could not do otherwise.</p> +</div> + +<p>The chairman’s gavel signified the end of the hearing.</p> + +<p>Two days later, Chambers accepted Hiss’s challenge to repeat +his accusations in public. When he appeared on the <i>Meet the +Press</i> radio program, Edward T. Folliard of the <i>Washington Post</i> +asked him, “are you willing to say ... that Alger Hiss is or ever +was a Communist?” When Chambers replied that “Alger Hiss +was a Communist and may be now,” Folliard wanted to know if +he was “prepared to go to court to answer a suit for libel or +slander?” The answer was short and to the point. “I don’t think +Hiss will go to court.”</p> + +<p>On September 27th, Hiss proved him wrong by filing a $75,000 +defamation suit in a Baltimore federal court. Although Chambers +announced that he welcomed the litigation, he became convinced +during some pre-trial hearings that, unless he could document +some of his charges, he was reasonably sure of losing the suit. +However, hidden behind a dumbwaiter shaft in the Brooklyn +home of Nathan Levine, one of his nephews, was a bulky manila +envelope. In it, were forty-seven typed copies of State Department<span class="pagenum" id="Page_153">[Pg 153]</span> +reports, five rolls of microfilm, and four memoranda in Hiss’s +handwriting. Chambers counted on these to save him from a +civil judgment. They didn’t fail him.</p> + +<p>William Marbury, Hiss’ attorney in the Baltimore libel suit, +had asked Chambers whether he could produce “any documentary +proof of your assertions?” On November 17th, Chambers +complied by dumping the copies of official documents and the +Hiss memos on the long conference table in Marbury’s office. +These, he claimed, Hiss had turned over to him in 1937 after +meeting a Colonel Bykov, a Soviet secret agent. Hiss would bring +classified reports home for his wife to type. He would return the +originals to the files the next morning while the typed copies +would be delivered to Chambers for transmission to Bykov.</p> + +<p>Hiss immediately directed his attorneys to turn the documents +over to the Department of Justice. Alexander Campbell, chief of +Justice’s Criminal Division, rushed up to Baltimore and took +possession of all the papers. At the same time, he ordered John +F. X. McGohey, the United States Attorney in New York, to +convene the Federal Grand Jury. But, with the exception of a +provocative little item in Jerry Kluttz’ column in the <i>Washington +Post</i> that “some startling information” had been uncovered in +the Baltimore libel suit, what Chambers was later to refer to as +his “lifeline” didn’t seem to have made much of a stir.</p> + +<p>Bert Andrews of the <i>New York Herald Tribune</i> thought that +he smelled a rather large rat. He decided to play his hunch and, +on December 1st, cabled Nixon, who was on the high seas bound +for a Central American vacation, that a “bombshell” had exploded +in Baltimore. Nixon ordered Stripling to visit Chambers +at his Maryland farm where the latter blandly admitted that he +had been less than frank with the Committee. Twenty-four hours +later, Nixon, with the help of the Coast Guard, was back in +Washington, and Chambers had turned over the five rolls of +microfilm which he had cached in a pumpkin in his backyard +to William Wheeler and Donald T. Appell, two Committee investigators. +Three of the rolls, which had not yet been developed, +were still in their aluminum cylinders while the developed rolls +were wrapped in oilpaper bags.</p> + +<p>On December 3rd, the day before Nixon & Company announced +its strike, the New York Federal Grand Jury was called<span class="pagenum" id="Page_154">[Pg 154]</span> +back into session. Its first step was to subpoena both Hiss and +Chambers, a step that forced the Committee—most regretfully—to +cancel a scheduled public hearing. On December 15th, the +grand jurors, by one more than a bare majority, returned a two-count +indictment against Alger Hiss. In it, it was charged that +he had lied twice in his testimony: once, when he denied that he +had turned State Department documents over to Whittaker +Chambers, and again when he swore that he had not seen his +rotund accuser “after January 1, 1937.” According to the grand +jury, Hiss had delivered Government reports to Chambers in +February and March of 1938 and had seen him during those +months.</p> + +<p>Hiss’ trial was originally scheduled for January 24, 1949 but, +because of six adjournments, it was not until May 31st that it +officially began with the selection of a ten man—two woman jury. +McGohey had entrusted the case for the prosecution to the hands +of Thomas F. Murphy, an Assistant United States Attorney noted +for the thickest and droopiest mustache in New York County. +Hiss had selected Lloyd Paul Stryker, a white-haired veteran of +the criminal courts, as his attorney-in-chief. There were others—Thomas +J. Donegan, who had been sent by the Attorney General +to lend a helping hand, and Edward C. McLean, who used up a +chair at the defense table—but it was Murphy and Stryker who +carried the biggest swords. The judge was Samuel H. Kaufman, +a wizened little man who could hardly see over the edge of the +bench without rising from his abundantly stuffed chair.</p> + +<p>The jury had been selected in less than three hours. Early on +the afternoon of the trial’s first day, Murphy heaved his 6’ 4” +bulk out of his chair and opened the Government’s case. He was +going to prove, he announced, that Hiss had lied as the grand +jury charged. Although he intended to corroborate Mr. Chambers’ +testimony, he admitted, somewhat over-generously, that “if +you don’t believe Mr. Chambers’ story, we have no case under the +Federal perjury rule.” Stryker was more than willing to do battle +on these terms and he assured the jury that he would do everything +in his power to prove to their satisfaction that the man who +accused Alger Hiss could only be described by the term used “in +the warm southern countries” to warn of the approach of lepers—‘Unclean, +unclean!’</p> + +<p><span class="pagenum" id="Page_155">[Pg 155]</span></p> + +<p>Chambers was the Government’s first witness. Dressed in a +baggy blue suit, he wearily repeated the testimony he had given +on so many occasions in the past. He described his years in the +Communist underground, his intimate friendship with the Hisses, +the help the defendant had given him in obtaining secret State +Department papers, and his own torturous break with the Party +in 1938. This was all old hat to those who had followed the +House Committee hearings, but suddenly Chambers added something +new. He swore that Hiss had lent him $400.00 in the fall +of 1937 to buy a new car for a trip to Florida, a trip that was +to mark his disappearance from the Communist scene.</p> + +<p>After Chambers had identified the Baltimore documents and +the pumpkin papers as having been received from Hiss, Murphy +asked him when he had last seen the defendant.</p> + +<div class="blockquot"> + +<p>A. I saw Alger Hiss around Christmas, 1938.</p> + +<p>Q. And where did you see him?</p> + +<p>A. I saw him at his home on Volta Place.</p> +</div> + +<p>The Hisses had lived at 3415 Volta Place in northwest Washington +from December 29, 1937 to November 1, 1943, and Chambers +claimed that it was at this house that he would pick up the +reports that Hiss had pilfered from State’s files. At first, all papers +were photographed in Baltimore by a man named Felix Inslerman, +but the procedure was changed in late ’37 when Bykov +ordered Priscilla Hiss to type copies of the reports.</p> + +<p>On his last trip to Volta Place, he had tried to convince Hiss +to join him in breaking with the underground. His friend had +told him that he was sorry that Chambers, whom he knew only +as Carl, was leaving the party because he had heard that “a new +and more important post was to be given to me.” Before they had +said goodbye, Hiss gave Chambers a wooden rolling-pin as a +Christmas present for the latter’s infant daughter. One year +later, in a conversation with Assistant Secretary of State Adolf A. +Berle, Jr., he had named Hiss “as a member of the Communist +Party.”</p> + +<p>Stryker didn’t waste any time beating around the bush when +Murphy turned the witness over to him. He wanted to know if +Mr. Chambers knew what an oath was. His man did. “An oath +is a declaration which a man makes when he promises to tell the +truth.” He agreed with Stryker that “in our courts it is an affirmation<span class="pagenum" id="Page_156">[Pg 156]</span> +made by a man who calls on Almighty God to witness +the truth of what he says.” But, Stryker thundered, wasn’t it a +fact that he had taken an oath in 1937 to “support and defend +the Constitution of the United States against all enemies?” He +had.</p> + +<div class="blockquot"> + +<p>Q. That was false from the beginning to the end, was it not, +Mr. Chambers?</p> + +<p>A. Of course.</p> + +<p>Q. And it was perjury, wasn’t it?</p> + +<p>A. If you like.</p> + +<p>Q. And you did it in order to deceive and cheat the United +States Government ... is that not true?</p> + +<p>A. That is correct.</p> + +<p>Q. You were an underhanded enemy of this country doing +what you could to aid a foreign country and overthrow +our constitution by force and violence?</p> + +<p>A. Yes.</p> +</div> + +<p>Chambers admitted that he had used more than seven aliases +between 1924 and 1938 when he was in the underground. +Furthermore, he had lied to the Dean of Columbia University, +had stolen books from numerous libraries, and had lived with +several women including a New Orleans whore with the fanciful +name of “One-Eyed Annie.” While he was at Columbia, he had +written an anti-religious play that was so offensive that he had +been expelled from the university.</p> + +<p>Chambers was prepared to admit everything—that he had been +a liar, a thief, an atheist, a spy and a cheat. But he insisted that +he had repented when he broke with the Communists in April of +1938. This was the opening Stryker had been waiting for.</p> + +<div class="blockquot"> + +<p>Q. Did you have a high, God-fearing man’s regard for an oath +in August of 1948?</p> + +<p>A. Yes.</p> + +<p>Q. Did you in October, 1948, testify before the grand jury in +this building?</p> + +<p>A. I did.</p> + +<p>Q. When you testified before the grand jury, you were asked +whether there was any espionage and you answered that +there was not?</p> + +<p>A. I answered I had no knowledge of it.</p> +<p><span class="pagenum" id="Page_157">[Pg 157]</span></p> +<p>Q. Was that answer true or false?</p> + +<p>A. That answer was false.</p> + +<p>Q. Then you admit that you testified falsely and committed +perjury before the grand jury in this building, is that +right?</p> + +<p>A. That is right.</p> +</div> + +<p>After getting his pliable witness to admit that he had written +erotic poetry and that his brother Dick had committed suicide +after two previous attempts, Stryker called it a day. Murphy tried +to repair some of the damage by asking Chambers to explain +why he had perjured himself before the grand jury as late as +1948. The ex-<i>Time</i> editor (he had resigned on December 10th), +maintained that he had done so “to preserve from injury in so +far as I could all individuals in the past in that conspiracy.... I +was particularly anxious not to injure Mr. Hiss any more than +necessary out of grounds of past friendship and because he is by +widespread consent a very able man. Therefore, I chose to jeopardize +myself rather than reveal the full extent of his activities and +those of others.” Perjury was never more nobly explained away.</p> + +<p>Before he called Esther Chambers, Murphy put a variety of +witnesses on the stand to buttress the accuser’s story. A bank +official testified that Mrs. Hiss had withdrawn $400.00 from a +joint account on November 17, 1937, while an automobile salesman +said that Mrs. Chambers had purchased a Ford sedan four +days later. After some typewritten notes and reports sent to various +people by the Hisses were identified, an Oriental rug dealer +by the name of Edward H. Touloukian said that he had delivered +four Bokhara rugs to a Dr. Meyer Schapiro just after Christmas +of 1936. Since Chambers had sworn that he had been ordered by +Colonel Bykov to give the defendant a rug, Dr. Schapiro’s testimony +that he had bought the rugs from Touloukian at the +editor’s request and with his money was of more than passing +interest.</p> + +<p>At last, the stage was set for Mrs. Chambers’ appearance. A +tiny forty-nine-year-old woman dressed in an ill-fitting gray suit, +she perched nervously in the witness chair, waiting for the indignities +she was sure were in the offing. Under Murphy’s gentle +questioning, she revealed a wealth of domestic detail about the +Hisses that complemented the story told by her husband. The two<span class="pagenum" id="Page_158">[Pg 158]</span> +families had been the best of friends, and she could even recall a +wonderful New Year’s Eve party at Volta Place in 1937. Alger +and Priscilla called her Lisa and her husband, Carl. When the +judge asked her what their last name had been during this period +of friendship, the witness stated, “We never had a last name to +them.”</p> + +<p>Stryker spent two days trying to destroy a woman who had +much more endurance than her frail physique would have suggested. +While she admitted that she didn’t have “a very good +head for figures or dates,” she insisted that the Hisses and the +Chamberses had known each other intimately and that she had +once painted a portrait of Timmy Hobson. The relationship +had been so close that Priscilla Hiss had willingly permitted one +of her best linen towels to be used as a diaper by one of the +Chambers infants.</p> + +<p>During most of Stryker’s cross-examination, Mrs. Chambers, +although frequently close to tears, managed to maintain her +composure. It was only when the defense attorney began to attack +her husband that her voice rose above a whisper. In October of +1937, when she had applied for a scholarship for her daughter, +she had referred to Chambers as a “freelance writer and translator.” +When Stryker asked her whether she “didn’t think it was +much of a misrepresentation to present your husband to this +school as a decent citizen,” she snapped back: “I resent that. My +husband is a decent citizen, a great man.”</p> + +<div class="blockquot"> + +<p>Q. Was he a great decent citizen in October, 1937?</p> + +<p>A. When he was in the underground?</p> + +<p>Q. I just asked a simple question. Was he a great and decent +citizen in October, 1937, yes or no?</p> + +<p>A. Yes, and always.</p> +</div> + +<p>On her direct examination, Mrs. Chambers had first testified +that the New Year’s Eve party at Volta Place had taken place at +the end of 1936. When it was pointed out to her that the Hisses +hadn’t moved to that address until December 29, 1937, she had +pushed the date one year ahead. On cross, she was sure that the +New Year’s Eve party which she had in mind had taken place at +1245 30th Street and not at Volta Place. She now remembered +that it was a housewarming that had occurred at the latter house.</p> + +<p>After Mrs. Chambers had stepped down, Murphy decided that<span class="pagenum" id="Page_159">[Pg 159]</span> +it was time to introduce the State Department documents. Photographic +enlargements were exhibited on a platform which was set +up on the witness box. Walter Anderson, the chief of State’s +records branch, identified the typewritten papers as cables received +by Foggy Bottom during the first three months of 1938 +from American diplomats scattered from Tokyo to Buenos Aires. +They covered subjects as unconnected as Manchukuoan finances, +Nazi relations with Austria, and British ship construction plans. +The microfilm documents were, in the main, interdepartmental +papers from the files of the Trade Agreements Section.</p> + +<p>After a Miss Eunice A. Lincoln, Assistant Secretary of State +Francis Sayre’s private secretary, had identified four of the Baltimore +memos as being in the defendant’s handwriting, Murphy +called Ramos S. Feehan, an FBI typewriter expert. It was the latter’s +opinion that all but one of the Baltimore documents had +been typed on the same machine as letters written by the Hisses +during the thirties. Stryker was not prepared to dispute Feehan’s +conclusions and conceded their accuracy.</p> + +<p>With the documents out of the way, Murphy turned to the task +of connecting Chambers with their theft from the State Department. +For this purpose, he summoned Henry Julian Wadleigh, +an Oxford alumnus, who freely admitted that he had begun “to +take out documents and give them to unauthorized people as +soon as I joined the State Department.” Although he had not +given any of the papers in evidence to Whittaker Chambers, he +had turned others over to him. However, he insisted that he had +limited his thievery to papers which passed over his desk in the +Trade Agreements Section. He, too, had been given a rug by +Chambers in 1937.</p> + +<p>It took Murphy three weeks to put in his case. Stryker’s defense +was confined to showing 1.) that Hiss was a man of sterling character, +and 2.) that Chambers was as chronic a liar as had ever +lived. To prove the first proposition, he paraded to the stand as +impressive a group of character witnesses as ever graced an American +court. There was John W. Davis, the unsuccessful 1924 Democratic +Presidential candidate, Charles Fahy, a former Solicitor +General, Admiral Richard Hepburn, and Supreme Court Justices +Felix Franfurter and Stanley Reed. They all agreed that Alger<span class="pagenum" id="Page_160">[Pg 160]</span> +Hiss’s reputation “for integrity, loyalty and veracity” was excellent.</p> + +<p>These imposing luminaries were followed by Mrs. Claudie +Catlett, a rather stout Negress, who had worked as a maid for +the Hisses during their early days in Washington. She remembered +that Chambers had come to the P Street house once and +that he had given his name as “Crosby, like in Bing.” When her +employers had moved to either Thirtieth Street or Volta Place, +they had given her children an old typewriter. But Murphy forced +her to admit that “I don’t remember nothing about the typewriter.” +In fact, it hadn’t been until 1949 that one of her sons +told her that they had received a typewriter from the Hisses.</p> + +<p>The Catlett boys, Raymond and Perry, succeeded their mother. +Raymond had helped Ed McLean trace the machine—an ancient +Woodstock—to one Ira Lockey’s house where the lawyer had +purchased it on April 16, 1949, for $15.00. Raymond had kept +the typewriter for a year or two after the Hisses gave it to him +and then he had let his brother’s wife take it. She had transferred +it to his sister and he lost track of it after that until it had been +found in Lockey’s house. But he was unable to tell Murphy in +what month or year he had received the machine. “I haven’t got +no papers, no secretary to copy all that stuff down,” he explained.</p> + +<p>Perry Catlett recalled that the Woodstock had been broken +when he first saw it. He had taken it to a repair shop on K Street +but some man there had told him that it wasn’t worth fixing. He +was certain that the typewriter had been given to his family when +the Hisses moved to Volta Street on December 29, 1936. But +when Murphy asked him, “What if I tell you that the shop on K +Street wasn’t opened for business until September, 1938?,” Perry +shook his head and replied, “I don’t know the time.”</p> + +<p>When Hiss, neatly dressed in a tan summer suit, finally took +the stand, he denied almost everything that Chambers had said +on his direct examination. He said that he had known a man +named Crosley between 1934 and 1936 but that he had never, +until the summer of 1948, ever associated him with Whittaker +Chambers. When Stryker asked him if he had ever been a member +of the Communist party “or a fellow traveler or a sympathizer,” +he quietly answered, “I am not and never have been.” +He had never given any “restricted, secret or confidential documents<span class="pagenum" id="Page_161">[Pg 161]</span> +of the State Department of any kind” to Chambers “or any +other unauthorized person.” Stryker, after taking his client from +his birth in Baltimore to the high point of his government career +as General Secretary to the San Francisco Conference, wound up +with a crescendo.</p> + +<div class="blockquot"> + +<p>Q. Mr. Hiss, you have entered your formal and solemn plea +of not guilty to the charges here against you, have you not?</p> + +<p>A. I have.</p> + +<p>Q. And in truth and in fact you are not guilty?</p> + +<p>A. I am not guilty.</p> +</div> + +<p>With a perfunctory “your witness,” Stryker returned to the counsel +table.</p> + +<p>Never once during his cross-examination did the prosecutor +refer to the defendant as anything but “Mr. Witness.” He took +Hiss through the entire period of his acquaintance with Crosley-Chambers, +pointing up, in the process, what he obviously regarded +as a bold-faced fabrication—the gift of the Twenty-eighth +Street apartment and the Ford. As for the Woodstock typewriter, +didn’t Hiss tell the FBI agents, who had questioned him on +December 4, 1948, that he thought that his wife had given it +away “subsequent to 1938?” He might have said that but “my +knowledge today is that we gave the typewriter to the Catletts at +the time when we moved from 30th Street to Volta Place in +December, 1937.” Finally, after eight long hours, at the end of +which he was trying to make some hay out of the fact that the +witness had not insisted on a lie detector test, Murphy was +through.</p> + +<p>Priscilla Hiss, a thin, graying woman, followed her husband. +She, too, denied any intimacy with the Chamberses as well as any +typing of State Department documents. She identified the Woodstock, +which sat on the defense table, as the machine her father +had given her in the twenties, but insisted that she had never +used it after buying a portable in the fall of 1937. Although she +had told the Federal Grand Jury that she had given the Woodstock +to either a junk dealer or the Salvation Army, the Catletts’ +testimony had reminded her that she had turned it over to them +just before the move to Volta Place.</p> + +<p>Murphy scored early. After the witness denied that she had +been a Socialist in 1932, he produced photostats of her registration<span class="pagenum" id="Page_162">[Pg 162]</span> +showing that he had indeed enrolled as such that year. When +he asked her whether she knew “that the records of the Socialist +Party Morningside Branch list you as a member,” she replied, +with some heat, that she did not. Lastly, remembering that Mrs. +Chambers had sworn that Prossy, as she called her, had enrolled +at Baltimore’s Mercy Hospital “to learn nursing,” he asked Mrs. +Hiss whether this was true. It was not. Then how did she explain +a letter which she had written on May 25th to the University of +Maryland, applying for admission to a course in inorganic +chemistry as a prerequisite for “Mercy Hospital’s training course +in medical technology?” All the witness could say was that “medical +technology” was different than “nursing.”</p> + +<p>Stryker’s last witness was a mysterious man who had been sitting +just behind the courtroom’s rail making copious notes as +Chambers was testifying. At Murphy’s request, he had been identified +on the trial’s third day as Dr. Carl Binger, a psychiatrist. +After posing a hypothetical question which included every dereliction +in Chambers’ past life, the defense attorney asked Binger, +“now, assuming the facts as stated in the question to be true and +taking into account your knowledge of his writings and translations, +have you as a psychiatrist an opinion within the bounds +of reasonable certainty as to the mental condition of Whittaker +Chambers?” Before Binger could answer, Murphy stormed up to +the bench to remind Kaufman that Chambers’ credibility was the +central issue of the case and that the psychiatrist’s answer would +be a usurpation of the jury’s function. The judge agreed and the +good doctor walked out of the courtroom with the answer to +Stryker’s question locked behind his beetled brow.</p> + +<p>The defense promptly rested and Murphy called Burnetta +Catlett, Claudie Catlett’s daughter, as his first rebuttal witness. +Burnetta had begun working for a Doctor Easter when she was +still in high school and had taken the Woodstock with her to +type her homework.</p> + +<p>When her employer died, she had left the machine at his house. +A Vernon Marlow had found it among the doctor’s effects and +finally passed it on to Ira Lockey in return for a hauling job the +latter had done for him. Lockey had turned it over to his daughter +who had used it to practice typing until she moved to New +York in October of 1948. Finally, Ed McLean, Stryker’s cocounsel,<span class="pagenum" id="Page_163">[Pg 163]</span> +had bought it from Lockey for fifteen dollars barely two +months before the trial.</p> + +<p>Since Perry Catlett had testified that he had taken the Woodstock +to a repair shop on the corner of Connecticut Avenue and +K Street, Murphy produced one Henri P. Henry, a real estate +operator who managed the building. Henry was sure that there +had been no typewriter repair stores on Connecticut Avenue at +the time, although he did remember that the Woodstock Typewriter +Company had rented a second-floor office on September 15, +1938 for two years. When the defense intimated that the company +may also have had an office on K Street, a block or so away, just +before it moved into Henry’s building, Murphy produced another +real estate man who swore that it had done nothing more than +sign a lease for the K Street quarters which had been cancelled +on June 18, 1938.</p> + +<p>John Foster Dulles was easily the Government’s most impressive +witness. He said that he had sounded out Hiss at the end of +1945, when both men were en route to England for the first meeting +of the United Nations, as to whether he contemplated leaving +public life. Although it was Hiss’s recollection that Dulles had, +during this voyage, “asked me whether I would be interested in +becoming President of the Carnegie Endowment,” the latter denied +that he had done so. “I don’t think,” he testified, “I discussed +at that time with him the presidency of the Carnegie Endowment, +because I was only one of twenty or more trustees, and the +trustees did not until their main meeting take up definitely the +matter of seeking a president.”</p> + +<p>In December of 1946, after Hiss’ election as President of the +Carnegie Endowment had been announced, Alfred Kohlberg, +the late publisher of <i>Plain Talk</i>, wrote to Mr. Dulles that he had +reason to believe that Hiss had been a Communist. Although +Hiss had testified that Dulles had contacted him at once and +asked him for help in preparing an answer to Kohlberg, the +witness insisted that “I did not discuss with Mr. Hiss about the +letter ... until some days later on.” As far as the letter’s writer +was concerned, “I never wrote a letter to Mr. Kohlberg.”</p> + +<p>Nothing daunted, Kohlberg wrote two more letters to Dulles +who then asked Hiss to come to his office for a conference. At +that meeting, Hiss had testified, Dulles had told him that Kohlberg<span class="pagenum" id="Page_164">[Pg 164]</span> +was the author of the letters he had received. In his testimony, +Dulles didn’t say whether he had mentioned Kohlberg’s +name or not. As he remembered the conversation, Hiss had informed +him that he had just testified before the Federal Grand +Jury and that “he had been asked ... of an acquaintanceship +with a number of people.”</p> + +<p>On the evening of August 3, 1948, the day on which Chambers +first testified before the House Committee, Hiss (if he was to be +believed) had telephoned Dulles, who was then Chairman of the +Board of the Carnegie Endowment. In view of Chambers’ testimony, +he had offered to resign if Mr. Dulles thought that his +fellow trustees would be unduly disturbed by the allegations that +the <i>Time</i> editor was making. Although Dulles could not remember +any such conversation, he did recall that he had had a discussion +with Hiss late in August. “Mr. Hiss said ... that he had +come to the conclusion that he had probably better resign, but +that it would be questionable whether he ought to resign while +the hearings were going on, because that might seem to be some +admission on his part—and I quite agreed with him that any +action like his resignation ought not to take place while the +hearings were going on.” Hiss did indeed tender his resignation +on December 12, 1948, but it was not accepted and he had remained +as President until his term expired on May 31, 1949.</p> + +<p>After Murphy tried—unsuccessfully—to put Hede Massing, the +former wife of Communist Gerhard Eisler, on the stand, the trial +ground to a halt in a welter of minor rebuttal witnesses on both +sides of the fence, none of whom contributed a great deal to anyone’s +store of essential information. An FBI agent who had interviewed +Hiss in 1946, the assistant registrar of the University of +Maryland, a counselor at a camp attended by Hiss’ stepson, and +the proprietor of a small summer hotel in Chestertown, Maryland, +who, because of illness, testified by deposition, did little +more than add a few hours to a trial that was already into its +sixth sweltering week.</p> + +<p>Stryker’s summations lasted more than four hours. As far as he +was concerned, it was simply a question of Chambers’ credibility. +Murphy, he reminded the jury, had summed it up best himself in +his opening when he had said that “... if you don’t believe +Chambers then we have no case under the federal perjury rule.”<span class="pagenum" id="Page_165">[Pg 165]</span> +And who could believe a chronic perjurer, a fornicator, a confessed +spy, an atheist, a pornographic poet and a blasphemer? +“The case comes down to this,” he told his twelve auditors, “who +is telling the truth? Alger Hiss or Chambers?” There was no +doubt as to how he had answered this question for himself. “I +would not believe Chambers on a stack of Bibles if the FBI +stacked them as high as this building!”</p> + +<p>Toward the end, Stryker’s face was as red as the hand with +which he relentlessly pounded the rail of the jury box. “Ladies +and gentlemen,” he begged them, “if I have done anything that +you don’t like, if I have offended you, any one of you, in any way, +hold it against me, not against Alger Hiss.” Exhausted and +shaken, he turned slowly and looked toward the counsel table +where his impassive client sat. “Alger Hiss, this long nightmare +is drawing to a close. Rest well. Your case, your life, your liberty +are in good hands. Thank you, ladies and gentlemen.”</p> + +<p>Murphy, retreating somewhat from his ill-chosen definition of +the federal perjury rule, confessed that he wasn’t resting his case +on Chambers alone. There were the documents and the Woodstock. +If Hiss’ contradictions about the apartment and the car he +had turned over to Chambers weren’t convincing enough, how +could the handwritten documents be explained away? Even the +defense’s location of the missing typewriter was suspect—if the +FBI couldn’t find it, why was it so ridiculously easy for Ed +McLean to trace it to Ira Lockey’s house? “I submit that two +things must be clear; one, that the typewriter was in the possession +of the Hiss family until at least Mr. Chambers’ defection, +until he left the Party; and two, that the Catletts had the typewriter +for some time after that....”</p> + +<p>“We have shown you here,” he thundered at the jury, “the +typewriter, the original State Department documents, the documents +in this case—three solid witnesses.” The dozen or so character +witnesses the defendant had put on the stand couldn’t change +that. “Mr. Stryker said that he was going to call the shade of +Oliver Wendell Holmes and have the ghost of that revered Justice +testify on behalf of the defendant. And I said to myself, if he +is going to call the shade of Justice Holmes, there are a couple of +shades that I would like to call here. One man’s name was Judas +Iscariot and the other’s Major General Benedict Arnold.” He<span class="pagenum" id="Page_166">[Pg 166]</span> +paused a moment to let that sink in. “But let me dwell a moment +on reputation. I dare say that Judas Iscariot had a fairly good +reputation. He was one of the Twelve. He was next to God, and +we know what he did. Benedict Arnold came from a fine family. +He was made a major general and sold out West Point. He +wasn’t caught. But, if he had been caught, don’t you think he +could have had George Washington as a reputation witness?”</p> + +<p>He was almost through. “You are the second jury to hear this +story,” he told them. “The Grand Jury heard the same story. The +Grand Jury heard this traitor and Mr. Chambers, and that +Grand Jury indicted Hiss. It indicted Hiss because he lied. He +lied to them and I submit he lied to you. The Grand Jury said +he lied twice on December 15th. And as a representative of +150,000,000 people of this country, I ask you to concur in that +charge of the Grand Jury. I ask you as a representative of the +United States Government to come back and put the lie in that +man’s face.”</p> + +<p>The jury retired at 4:20 on the afternoon of July 7th. Six +hours later, after their foreman had informed Kaufman that there +was no possibility of reaching a verdict that night, the jurors +were sent to a hotel. At noon the next day, they filed back into +the jury box to listen to Kaufman’s repetition of the portion of +his charge dealing with corroborative and circumstantial evidence. +Three hours later, the foreman asked a bailiff to deliver a +note to the judge informing him that “the jury feels that it cannot +arrive at a verdict.” At 4:45, he forwarded a similar communication. +Kaufman begged them to try once more, but at 8:55 +they announced that “the jury finds it impossible to reach a verdict.” +This was enough for Kaufman who discharged them “with +the thanks of the court.” The trial was over.</p> + +<p>Four months later, the United States of America <i>versus</i> Alger +Hiss encored, this time with District Judge Henry W. Goddard +at the helm. Tom Murphy was still around but Stryker had +yielded to Claude B. Cross, a quiet, unassuming Boston elder +who looked as if he had never pounded a counsel table in his life. +A jury of seven women and five men was quickly selected and, on +the afternoon of November 19, 1949, the Government began its +second go-round in its attempt to convict Alger Hiss of perjury.</p> + +<p>With only minor discrepancies, most of the witnesses who had<span class="pagenum" id="Page_167">[Pg 167]</span> +testified at the first trial repeated their stories. But there were +parvenus. Goddard was determined to admit any evidence that +was vaguely relevant and several of the witnesses who had been +rejected by Kaufman were permitted to tell their once-verboten +stories. Hede Massing, for instance, said that she had met the +defendant in 1935 at the Washington home of Noel Fields, an +erstwhile League of Nations official. Mrs. Massing, an ex-Communist, +who admitted that “I have a bad memory,” stated +that she and Hiss had had a conversation as to which one of +them was going to win Fields for his cell.</p> + +<p>Henrikas Rabinavicius, a former Lithuanian diplomat, later +testified for the defense against Mrs. Massing. According to him, +he had met her at the home of Eugene Lyons in the Fall of 1949. +There, she told him that, during the early thirties, she had been +assigned by the Party “to endeavor to contact young men in the +Department of State.” She had carefully concealed her Communist +affiliation from her “young men,” she had told him, “because +that would have frightened them away from her.” When Rabinavicius +had intimated that he doubted the truth of her remarks, +she threatened to write a devastating article about him.</p> + +<p>William Rosen, the elusive vice-president of the Cherner Motor +Company, to which the old Hiss Ford had been transferred, had +been located by Murphy in California after the first trial. He +proved to be a far from loquacious witness. Outside of admitting +that he did not know either J. Peters or Alger Hiss, he refused to +answer every question Murphy threw at him on the ground that +“any answer I may give may tend to incriminate me.” When +Rosen stepped down, Goddard warned the jury it was not to +draw any inference unfavorable to Hiss because the witness had +claimed his constitutional immunity.</p> + +<p>Sergeant George Norman Roulhac had been stationed in the +Aleutians during the first trial. Murphy now called him to prove +that the Woodstock had not been in the Catletts’ possession until +after the date of the most of the typewritten documents and not +on December 29, 1937, as Priscilla Hiss had claimed. Roulhac had +signed the lease for Mrs. Catlett when she had moved to P Street +on January 17, 1938, because the rental agent would not deal +with a colored lady. He was sure that he had not seen any typewriter +at P Street until “about three months after we lived there.”<span class="pagenum" id="Page_168">[Pg 168]</span> +The machine he had seen in a downstairs hallway was “the same +design” as the Woodstock he had been shown in court.</p> + +<p>Cross called Dr. Binger back to the wars. The answer to the +famous hypothetical question that Kaufman had blocked in July +was about to be delivered with Goddard’s blessing. Binger waited +patiently until the question was in the record, and then, with his +eyes on the ceiling, opined that “Mr. Chambers is suffering from +a condition known as a psychopathic personality, a disorder of +character the distinguishing features of which are amoral and +social behaviour.” One of the most significant symptoms of this +malady were “chronic, persistent, and repetitive lying and a +tendency to make false accusations.” However, he admitted to +Murphy that doctors frequently disagreed on diagnosis and that +he had been wrong more than once in his own professional life.</p> + +<p>On the trial’s last day, Murphy produced his one surprise witness—Edith +Murray who had worked as a maid for the Chamberses +at their two homes in Baltimore from the Fall of 1934 to +the Spring of 1936. She swore that she had seen Mrs. Hiss there +four times and the defendant once. However, when she had first +been shown a photograph of Mrs. Hiss by FBI agents, she was +not quite sure of her identity. “They asked me did I know this +lady, and I said it looks like someone that I know. It looked like—I +thought maybe it was an actress or something. I say it looks +like someone I know, but I just couldn’t remember at that time.”</p> + +<p>On November 17th, the first day of the trial, she had been +stationed in the corridor outside of the courtroom. She was told +by the FBI agents who had brought her to New York that “all +they wanted to do was bring me up here to see if I could recognize +the woman that was in the picture and the man on the +picture.... I just stood out in the hall and it was a crowd of +people. They asked me did I see anybody in the crowd that I +know, and I looked around, and I didn’t see anyone at this time, +and stood there; so then, after a while, in the back of me where +I was standing was an elevator, in the back of me, like, and I +looked around, and then I see Mr. and Mrs. Hiss come over, and +right away I knew them.”</p> + +<p>The jury filed out at 2:50 p.m. on January 20th. On the afternoon +of the next day, it found the defendant “guilty on the first +count and guilty on the second.” Four days later, Goddard sentenced<span class="pagenum" id="Page_169">[Pg 169]</span> +him to five years on each count, the terms to run concurrently. +A few minutes earlier, Hiss had thanked his Honor +for allowing him to say a few words. He denied again that he +was guilty of the charges against him and promised that “in the +future the full facts of how Whittaker Chambers was able to +carry out forgery by typewriter will be disclosed.”</p> + +<p>Goddard set $10,000 bail and paroled Hiss in Cross’ custody. In +December, the Court of Appeals for the Second Circuit affirmed +the conviction. When the United States Supreme Court refused +to intervene, the last door was closed. On March 22, 1951, Alger +Hiss entered the federal penitentiary at Danbury, Connecticut. +What Whittaker Chambers once called “the spectacle of tragedy” +had run its course.</p> +<hr class="full"> + +<div class="chapter"> +<p><span class="pagenum" id="Page_170">[Pg 170]</span></p> + +<h2 class="nobreak" id="c10">8</h2> +</div> + +<p class="u large"><i>They Gave the Bomb to Russia</i></p> + +<p class="c xlarge">The United States of America</p> + +<p class="c xlarge"><i>versus</i></p> + +<p class="c xlarge">Julius Rosenberg, Ethel Rosenberg<br> +and Morton Sobell</p> + + +<p>Early on the evening of Wednesday, September 5, 1945, Igor +Gouzenko, an obscure twenty-six-year-old cipher clerk in the Russian +Embassy in Ottawa, walked into the editorial offices of the +<i>Ottawa Journal</i> with an armful of secret Soviet files. When the +Canadian authorities, with Gouzenko’s help, translated the 109 +documents he had pilfered, they discovered that the country was +honeycombed with Russian spies who were part of an extensive +network that covered Great Britain, the United States and Canada. +Perhaps the most important name that was found in the +Gouzenko papers was that of Allan Nunn May, a British atomic +scientist, who was then working at the Montreal Laboratory of +the National Research Council. It was through Dr. May’s efforts +that, on August 9, 1945, Colonel Nicolai Zabotin, the Russian +Embassy’s military attaché, was able to report to Moscow that +he had obtained samples of Uranium 233. May was arrested +when he returned to England in late September and, after pleading +guilty to a charge of violating the Official Secrets Act, was +sentenced to ten years in prison.</p> + +<p>The secret service agents who examined Dr. May’s papers had +found the name ‘Fuchs’ scrawled on several pages of notes. For +some reason, no attention was paid to this name although Dr. +Klaus Emil Julius Fuchs, a German-born physicist who was a<span class="pagenum" id="Page_171">[Pg 171]</span> +naturalized British subject, had just returned to England from +a tour of duty with the Manhattan Project, the American atomic +bomb station at Los Alamos, New Mexico. It wasn’t until four +years later that Fuchs was arrested, and immediately confessed +that he had been supplying atomic information to a Soviet courier +who regularly visited him in New York and New Mexico. He did +not know the name of the courier but indicated that he had +appeared to have an excellent knowledge of chemistry.</p> + +<p>When he was shown photographs of various American chemists +who were suspected of espionage, he had pointed to one and +said, “That is the man!” The photograph he had identified was +that of a biochemist named Harry Gold who was employed by +the Pennsylvania Sugar Company in Philadelphia. It was Gold, +Fuchs said, who had met him in various parts of the United +States and to whom he had turned over certain information +for transmission to Anatoli A. Yakovlev, a Russian diplomatic +agent in New York. He had first met Gold in Woodside, Queens, +in June of 1944, and continued these clandestine meetings until +he was transferred to Los Alamos early in 1945.</p> + +<p>Upon Gold’s apprehension, he admitted that he had been +working as a Soviet espionage agent for more than fifteen years. +He had first met Yakovlev, a long-nosed young man who walked +“with somewhat of a stoop” and who was known to him only +as ‘John,’ in March of 1944, at a Manhattan restaurant. Yakovlev +had ordered him to contact Fuchs, who was then working +in New York with a British-American atomic team. At the Woodside +meeting, the physicist had told Gold that he was “going to +give me information. This information was to relate to the application +of nuclear fission to the production of a military weapon.” +A few weeks later, the two men had met in Brooklyn’s +Borough Hall area where Fuchs gave the courier “a package of +papers” for transmittal to Yakovlev.</p> + +<p>Just before Fuchs left for Los Alamos in February of 1945, +Gold saw him in Cambridge, Massachusetts. In addition to the +usual package of documents which he had turned over to Gold, +Fuchs “made mention of a lens which was being worked on as +a part of the atom bomb.” Before the two parted company, they +made a date to meet in Santa Fe in June. When Gold told Yakovlev +about the lens, the Soviet agent “was very agitated and<span class="pagenum" id="Page_172">[Pg 172]</span> +told me to scour my memory clean so as to elicit any possible +scrap of information about this lens.”</p> + +<p>Four months later, Gold and Yakovlev met in Volks’ Cafe +on 42nd Street and Third Avenue. After the details about meeting +Fuchs in Santa Fe had been discussed, Yakovlev told Gold +that, on the same trip, he would also have to visit Albuquerque +where he was to see an American soldier named David Greenglass +who was stationed at Los Alamos. He was to tell Greenglass +that “I come from Julius” and show him a piece of cardboard +from a dessert box. “Yakovlev told me that the man +Greenglass ... would have the matching piece of cardboard.” +Either Greenglass or his wife would have some information for +him and he was given an envelope containing $500.00 which he +was to turn over to them. Yakovlev told him that he would find +the Greenglasses in an apartment at 209 North High Street.</p> + +<p>On June 2, 1945, Gold, after seeing Fuchs, took a bus from +Santa Fe to Albuquerque. About 8:30 that evening, he went to +the High Street address that Yakovlev had given him but was +informed by a neighbor that the Greenglasses were not home. +Early the next day—a Sunday—he returned to High Street +and this time found the couple in their apartment. After informing +Greenglass that he “was from Julius,” Gold produced the +piece of cardboard which matched that in the other man’s possession. +Greenglass, who was “a young man of about twenty-three +with dark hair,” then introduced Gold to his wife, Ruth, +and asked him to come back later that day as the information +was not yet ready for delivery. That afternoon, Greenglass gave +Gold “an envelope which he said contained ... the information +on the atom bomb.” Before Gold took his leave, Greenglass informed +the courier that he expected to come to New York on +furlough around Christmas and that “if I wish to get in touch +with him then I could do so by calling his brother-in-law Julius +and he gave me the telephone number of Julius....”</p> + +<p>Gold returned at once to New York and turned over the material +he had received from Fuchs and Greenglass to Yakovlev. +Although he returned to New Mexico again in September of +1945 to see Fuchs, he never saw the Greenglasses again. Fuchs +told him that the first atomic bomb had been exploded at Alamogordo +in July and that he thought that “he would probably very<span class="pagenum" id="Page_173">[Pg 173]</span> +soon have to return to England.” The scientist was extremely +upset because the British had entered Kiel ahead of the Russians +and he was afraid that his Gestapo dossier would fall into the +wrong hands. Gold told him not to worry and that, after his +return to England, he would be contacted on the first Saturday +of every month at the Paddington Crescent station of the London +subway. He was to carry five books in one hand and two +in another, while the man who would meet him would have +a copy of Bennett Cerf’s <i>Stop Me if You Have Heard This</i> +in his left hand.</p> + +<p>When Gold was apprehended on May 23, 1950, he told his +story to the FBI agents who had picked him up. As a result of +his revelations, David Greenglass and his wife, Ruth, were +arrested three weeks later in their New York City apartment. +Like Gold, the Greenglasses confessed that they, too, had been +engaged in espionage activities on behalf of the Soviet Union. +They insisted, however, that they had merely been pawns in the +hands of Julius Rosenberg, an electrical engineer, who was +married to David’s sister, Ethel. It was Julius, they both claimed, +who, with an assist from Ethel, had persuaded them to become +atomic spies and who had directed their espionage activities. On +July 16th, the Rosenbergs were arrested in their eleventh-floor +apartment in Knickerbocker Village, a middle-income housing +project on Manhattan’s lower East Side.</p> + +<p>One month later, the Federal Grand Jury in New York returned +conspiracy indictments against Julius Rosenberg, Ethel +Rosenberg and Anatoli Yakovlev. Four weeks earlier, Harry Gold +had pleaded guilty to the same crime in Philadelphia and been +sentenced to thirty years in prison. On October 10, 1950, a +superseding indictment included David Greenglass and an electrical +engineer named Morton Sobell as additional defendants. +They were all accused of conspiring to deliver to “a foreign nation +... documents, writings, sketches, notes and information +relating to the National Defense of the United States of America.” +Since Yakovlev had returned to Russia in December of 1946 and +David Greenglass had admitted his guilt, another indictment +which named only the Rosenbergs and Sobell was filed on January +31, 1951, and their joint trial began in New York City on +March 6, 1951.</p> + +<p><span class="pagenum" id="Page_174">[Pg 174]</span></p> + +<p>When court convened at 10:30 that morning, District Judge +Irving R. Kaufman, a comparative newcomer to the Federal +bench, presided. Irving H. Saypol, the United States Attorney for +the Southern District of New York, and five assistants appeared +for the government. The Rosenbergs were represented by a +father-son team—Alexander Bloch for Ethel and Emanuel H. +Bloch for Julius. Harold M. Phillips and Edward Kuntz stood +up for Sobell while O. John Rogge, the attorney for the Greenglasses, +only hung around long enough to ask Judge Kaufman +to notify him when his client took the stand so that he “could +be in attendance.” The judge assured him that he would be +happy to do so and Rogge, with a grateful smile, double-timed +out of the courtroom.</p> + +<p>After a jury of one woman and eleven men had been impanelled, +Saypol called Max Elitcher, a former employee of the Navy +Department’s Bureau of Ordinance. Elitcher had attended +Stuyvesant High School and City College with Morton Sobell. +He said that Sobell had taken him to a Communist Party get-together +in the fall of 1939 and that he had then regularly +attended such meetings. In 1941, Sobell had left Washington to +study for his Master’s degree at the University of Michigan.</p> + +<p>Three years later Elitcher, who had remained with the Navy +Department, received a telephone call from “a person who said +he was Julius Rosenberg,” a former City College classmate, and +who, like Sobell and Elitcher, was an electrical engineer. This +man had visited him that same day and asked him whether he +would be willing to obtain “classified information about military +equipment” and turn this over for transmittal to Russia. He had +assured Elitcher that his old friend Sobell was “helping in this +way.” Before the two parted, Rosenberg instructed the witness +to telephone him as soon as he had any information so that +it could be promptly photostated and returned to the Navy Department +before it was missed. Elitcher told him that “I would +see about it.”</p> + +<p>On Labor Day, the Elitchers joined Sobell and his fiancée on +a vacation trip to Kumbabrow State Park in West Virginia. +When Elitcher mentioned Julius’ visit, Sobell appeared agitated +and said, “He should not have mentioned my name.” +Elitcher tried to pacify him by pointing out that Rosenberg<span class="pagenum" id="Page_175">[Pg 175]</span> +“knew about our close relationship [and] probably felt safe +about it,” but Sobell kept insisting that “it makes no difference, +he shouldn’t have done it.”</p> + +<p>A few months after Sobell’s marriage in March of 1945, the +Elitchers spent a night in New York at Rosenberg’s apartment. +The latter announced that he had been discharged by the Signal +Corps for security reasons. According to Elitcher, “he thought +it had to do with his espionage activity, but he was quite relieved +to find out it only had to do with the party activity.” He +next saw Rosenberg in September when Julius came to Washington +and dropped in for “fifteen or twenty minutes.” The +conversation was limited to Elitcher’s work on fire control devices +for the Navy. Rosenberg asked him whether he “would +want to contribute [to satisfy] a continuing need for new military +information for Russia,” and Elitcher testified that “I said I +would see and if I had anything and I wanted to give it to him, +I would let him know.”</p> + +<p>Meanwhile, Sobell had left Ann Arbor for Schenectady where +he was employed by General Electric. Elitcher visited him there +early in 1946, only to be pumped about the availability of written +reports on the Navy fire control system. When he told Sobell that +“it was not completed, it was dragging along, it had not been +finished yet,” he was advised to see Rosenberg as soon as possible. +Some months later, he met Rosenberg again in his Knickerbocker +Village apartment. This time Rosenberg complained +that “there was a leak in this espionage” and that it would be +better if “I don’t come to see him until he lets me know or +until someone informs me.” In fact, Julius thought that things +were so hot that he ordered Elitcher to discontinue his Communist +Party activities until further notice.</p> + +<p>In 1947, Sobell left General Electric and took a job as a project +engineer with the Reeves Instrument Corporation in New +York. From time to time, Elitcher visited him at the plant and, +toward the end of the year, had lunch with him at a restaurant +on Third Avenue known as the Sugar Bowl. During the meal, he +remembered that his ex-roommate had “inquired as to whether +I knew of any engineering students ... who would be safe to +approach on this question of espionage, of getting material.”<span class="pagenum" id="Page_176">[Pg 176]</span> +Elitcher claimed that he knew of nobody who fitted this bill +but “if somebody came along, I would tell him about it.”</p> + +<p>After several meetings with Sobell at Reeves, Elitcher made up +his mind to leave the Bureau of Ordinance and enter private industry. +In June of 1948, during a business trip to New York, he +telephoned Sobell to inform him of his plans, and the former +told him not to take any final step “before you see me. I want to +talk to you about it, and Rosenberg wants to speak to you about +it.” Later that day, Elitcher met Rosenberg and Sobell at 42nd +Street and Third Avenue. They did everything in their power to +persuade him to stay in the Bureau because, as Julius put it, “he +needed somebody to work at the Navy Department for this espionage +purpose.” During this conversation, Sobell kept repeating, +“Julie is right; you should do that.” But Elitcher was adamant +and, after the three men had dinner together, returned to +Washington to resign from the Navy Department and bring his +family back to New York.</p> + +<p>At this time, Sobell lived at 164-17 73rd Avenue in Flushing. +Elitcher was successful in landing a job at Reeves and, in late +July, drove to New York on an apartment-hunting expedition. +While driving through Baltimore, he noticed that he was being +followed by several cars. When he arrived at Sobell’s house that +evening, he told his friend that one or two cars had tailed him +during most of his northward trek. Sobell was furious. “At this +point, he became very angry and said that I should not have +come to the house under those circumstances.” After he calmed +down, he told Elitcher that he had something in the house “that +he should have given to Julius Rosenberg some time ago....” +He said he was tired and asked Elitcher to join him on the ten-mile +trip to Manhattan. As they were leaving the house, Elitcher +“saw him take what I identified then as a 35-millimeter film can.”</p> + +<p>The two men left Queens and drove down the East River +Drive to the Journal-American Building where Sobell parked the +car. He took “this can out of the glove compartment” and, after +instructing Elitcher to drive the car around the corner and wait +for him on Catherine Slip, walked off in the direction of Knickerbocker +Village. When he returned some thirty minutes later, +Elitcher asked him, “Well, what does Julie think about ... my +being followed?” Sobell assured him that “it is all right; don’t<span class="pagenum" id="Page_177">[Pg 177]</span> +be concerned about it,” and headed the car in the direction of +Flushing. As they drove along, Sobell volunteered the information +that Rosenberg had told him that he once spoke to Elizabeth +Bentley on the telephone but that “he was pretty sure she +didn’t know who he was and therefore everything was all right.”</p> + +<p>Before Saypol turned the witness over to the impatient defense +quartet, he had extracted the information that Sobell had +“a Leica camera, and an enlarger and material for processing +film.” Elitcher was sure that Sobell had worked on classified material +when he was employed by the Navy, General Electric and +Reeves. He had last seen his friend in June of 1950 when Sobell +and his family left for a weekend in Washington.</p> + +<div class="blockquot"> + +<p>Q. Did he say anything to you at that time about going to +Mexico?</p> + +<p>A. No.</p> +</div> + +<p>Only the uninitiated in the courtroom were ignorant of the fact +that Sobell had been picked up in Mexico City in the late summer +of 1950 by Mexican security police and rushed across the +Rio Grande.</p> + +<p>On cross-examination, Elitcher conceded that he had signed a +loyalty oath in 1947. “I signed a statement saying that I was not +or had not been a member of an organization that was dedicated +to overthrow of the government by force and violence.”</p> + +<div class="blockquot"> + +<p>Q. At the time you verified that oath, did you believe that +you were lying when you concealed your membership in +the Communist Party?</p> + +<p>A. Yes, I did.</p> + +<p>Q. So you lied under oath?</p> + +<p>A. Yes.</p> +</div> + +<p>When he was first questioned about the Sobells and the Rosenbergs, +he “realized what the implications might be” of his perjured +statement. But he insisted that he “didn’t know what +would happen to my skin when I told the story. I certainly have +hopes ... that the best will happen to me.”</p> + +<p>With the witness’ admission that he had been going to a psychiatrist +since 1947 because of marital difficulties, the defense +attorneys let him go. There was bigger game in the offing. The +bailiff called out the name of David Greenglass and, accompanied +by a United States Marshal, the ex-sergeant walked up to the<span class="pagenum" id="Page_178">[Pg 178]</span> +witness chair. Although Elitcher had testified to a connection +between Sobell and Rosenberg and some suspicious activities by +both men, he had not shown that either one was engaged in +atomic espionage. This was David Greenglass’ function and he +played his role to the hilt.</p> + +<p>After being trained as a mechanic at the Haaren Aviation +School, Brooklyn Polytechnic and Pratt Institute, Greenglass was +drafted in April of 1943. When he finished basic training, he had +been sent to ordinance school at Aberdeen, Maryland. In July, +1944, he was assigned to the Manhattan District Project at Oak +Ridge, Tennessee. After two weeks orientation, he was sent to +Los Alamos where he worked in the “E” shop as a machinist. +He was one of ten machinists in the shop and became its foreman +some eighteen months later. But it was not until November of +1944 that he learned that the work he was doing was “concerned +with the construction of the atom bomb.”</p> + +<p>It was his wife, Ruth, who had enlightened him as to the nature +of the Manhattan Project. On November 29, 1944—their +second wedding anniversary—she visited him in Albuquerque. +A few days after she arrived, the couple decided to walk to the +Rio Grande via Route 66. It was during this outing that Ruth +told her husband that the Rosenbergs had invited her to dinner +just before she left New York. Ethel and Julius had informed +her that they had become Soviet espionage agents and that they +were “giving information to the Soviet Union.” Julius had then +told Ruth that David “was working in the atomic bomb project +at Los Alamos and that they would want me to give information +to the Russians.”</p> + +<p>At first, David refused to help the Rosenbergs, but, after a +night of soul-searching, he apparently had a change of heart. The +next day, he furnished his wife with the code names for such +scientists as J. Robert Oppenheimer, Neils Bohr and George B. +Kistiakowski as well as information about “the general layout of +the Los Alamos Atomic Project, the buildings, number of people +and stuff like that.” Ruth told her husband that she had been +instructed by Julius “not to write it down, but to memorize it.” +Two days later, she returned to New York.</p> + +<p>Greenglass next saw his wife on New Year’s Day of 1945 when +he arrived home on a fifteen-day furlough. Julius came over one<span class="pagenum" id="Page_179">[Pg 179]</span> +morning and “asked me to give him information, specifically +anything of value on the atomic bomb, whatever I knew about +it.” He was particularly interested in some high explosive lens +molds on which David told him he was working at Los Alamos. +That evening, Greenglass drew some sketches of the lens molds +and gave them to his brother-in-law the following morning. In +order to assist Greenglass in preparing his sketches, Julius gave +him “a description of the atom bomb” of the Hiroshima type.</p> + +<p>Two or three days later, the Greenglasses were invited to dinner +at the Rosenberg’s. There they met a woman by the name of +Ann Sidorovich. Later that evening, Julius told David that Mrs. +Sidorovich would go west during Ruth’s next trip to Albuquerque +and that the two women would exchange pocketbooks in a +Denver movie theatre. Ruth’s was to contain the latest information +on the atom bomb that David would turn over to her in +Albuquerque.</p> + +<p>However, there was a chance that another courier would be +sent. To make sure that the Greenglasses would be able to identify +Sidorovich’s replacement, Rosenberg gave Ruth one part of +the side of a Jello box and told her that whoever came to Albuquerque +would have the other portion. Ruth put the piece of +cardboard in her wallet. The rest of the evening was spent in +discussing lenses, and Rosenberg told Greenglass that “he would +like me to meet somebody who would talk to me more about +lenses.” The person Julius had in mind was a Russian scientist +and an appointment was made for David to meet this man a +few nights later on First Avenue between 42nd and 59th Streets.</p> + +<p>Greenglass borrowed his father-in-law’s Oldsmobile and parked +at the spot Julius had indicated. His brother-in-law brought over +a strange man who got into the car and ordered David to drive +around the area. He asked the machinist a great many questions +about lenses—the high explosive used, the means of detonation +and the formula of the curve in the lens. David promised to +find out what he could when he returned to Los Alamos and he +drove the Russian back to where he had entered the car. He then +returned home where “I told my wife where I had been.”</p> + +<p>Two weeks later, he returned to the Manhattan Project. Early +the next April, Ruth joined him in Albuquerque. Shortly after +she arrived, the couple found an apartment at 209 North High<span class="pagenum" id="Page_180">[Pg 180]</span> +Street. David managed to spend Saturdays and Sundays at the +apartment, returning to the base on Monday mornings. It was +on one of those Sundays—June 3, 1945—that Harry Gold made +the first of his two visits to the Greenglasses. After announcing +that he came from Julius and exhibiting the other half of the +Jello box side, he was told by David to come back later as the information +was not yet ready. As he left the apartment “Mrs. +Greenglass told me that just before she had left New York City +to come to Albuquerque, she had spoken with Julius....”</p> + +<p>That afternoon, David turned over to Gold several sketches of +a lens mold, some descriptive material about atomic bomb experimentation, +and a “list of possible recruits for espionage.” He +also indicated that a test explosion was scheduled for July at +Alamogordo, New Mexico. The Greenglasses then accompanied +the courier on a back road that led by the USO where “we +dropped him. We went into the USO, and he went on his way. +As soon as he had gone down the street my wife and myself +looked around and we came out again and back to the apartment +and counted the money.”</p> + +<div class="blockquot"> + +<p>Q. How much was it?</p> + +<p>A. We found it to be $500.</p> + +<p>Q. What did you do with the money?</p> + +<p>A. I gave it to my wife.</p> +</div> + +<p>It was at this point that Saypol introduced a sketch of a lens +mold which had been prepared from memory by Greenglass after +his arrest. The latter stated that it was, for all practical purposes, +a replica of one he had given Gold in Albuquerque.</p> + +<p>In September, Greenglass arrived in New York on furlough. +He stayed at his mother’s apartment on Sheriff Street where +Rosenberg visited him the next morning. Greenglass told him, +“I think I have a pretty good description of the atom bomb.” He +turned over a sketch and some data relating to the bomb to his +brother-in-law who seemed delighted with them. He gave David +$200.00 and told him that “he would like to have it immediately, +as soon as I possibly could get it written up....” A replica of +this sketch was identified by an atomic engineer at a later stage +of the trial as a cross-section of “the bomb we dropped at Nagasaki, +similar to it.”</p> + +<p>That afternoon, Greenglass typed some twelve pages of information<span class="pagenum" id="Page_181">[Pg 181]</span> +and then drove over to Knickerbocker Village with Ruth +where he gave the manuscript to Julius. The latter insisted that +the report’s grammar be corrected and Ethel retyped it on a portable +in the living room. While this was going on, Julius told +David that he had once stolen a proximity fuse when he worked +for the Emerson Radio Company. Before the Greenglasses left +that afternoon, Julius advised David to stay at Los Alamos as a +civilian when he was discharged from the Army.</p> + +<p>David received an honorable discharge at Fort Bliss in El Paso +on February 28, 1946. He immediately returned to New York +where he went into business with his brother Bernard, Julius +Rosenberg and a man named Goldstein. The four formed two +companies—G & R Engineering and the Pitt Machine Products +Corporation. Some time in 1946 or 1947, Julius urged David to +continue his schooling at Russian expense “for the purpose of +cultivating the friendships of people that I had known at Los +Alamos and also to acquire new friendships with people who +were in the field of research that are in those colleges, like physics +and nuclear energy.” He suggested a number of institutions, including +the University of Chicago, the Massachusetts Institute of +Technology and New York University, but Greenglass “never +bothered” to go.</p> + +<p>In August of 1949, David left Pitt and G & R and got a job +with the Arma Engineering Corporation. In the three years he +had been working with his brother-in-law, Julius had told him +a great deal about his espionage activities. According to Greenglass, +Rosenberg was receiving information from General Electric +as well as from someone in Cleveland, Ohio. “He told me that +he had people going to school in various up-State institutions.” +In 1947, he revealed that he had heard “from one of the boys” +about a sky-platform project, and information about “atomic +energy for airplanes” from another. As a reward for all his varied +activities, he informed David, he and his wife had been +given watches, a citation and a console table by the Russians.</p> + +<div class="blockquot"> + +<p>Q. Did he describe the citation at all?</p> + +<p>A. He said it had certain privileges with it in case he was sent +to Russia.</p> +</div> + +<p>A few days after Klaus Fuchs’ arrest in February of 1950, +Rosenberg awakened Greenglass one morning and insisted that<span class="pagenum" id="Page_182">[Pg 182]</span> +he accompany him on a walk around nearby Hamilton Fish +Park. He told David that the man who had visited him in Albuquerque +five years before had been one of Fuchs’ contacts and +that he would probably be picked up soon. He urged Greenglass +to leave the country and promised to obtain some money for +him from the Russians. For the next few months, Rosenberg +kept pressing David to get out of the United States but it was +not until Harry Gold’s arrest in May that he told him that “you +will have to leave the country.”</p> + +<p>At that time, he gave David $1000.00 and promised him +$6000.00 more. He suggested that David and Ruth go to Mexico +City and that they get their tourist visas at the border rather +than at the Mexican Consulate in New York. Once the couple +arrived in Mexico City, they were to make contact with the Russian +Ambassador and, by following instructions that would have +delighted E. Phillips Oppenheim, eventually wind up in Czechoslovakia. +Greenglass went so far as to have six sets of passport +pictures taken. On Memorial Day, he turned five sets over to +Rosenberg who, a week later, brought him $4,000 in tens and +twenties in a brown paper bag. Almost all of this money, he +said, had been given to O. John Rogge as a fee for legal services.</p> + +<p>In the days that followed this visit, David began to notice that +he was being regularly followed. When Julius asked him, “Are +you being followed?” he told him that he thought he was. His +brother-in-law then asked him what he intended to do about it +and Greenglass told him, “I am not going to do anything. I am +going to sit—I am going to stay right here.” On June 15th, he +was picked up by agents of the Federal Bureau of Investigation. +One month later, Julius Rosenberg was taken into custody and, +on August 11th, Ethel was arrested. The circle that Gouzenko +had started in 1945 was full.</p> + +<p>Ruth Greenglass told much the same story as had her husband. +Julius and Ethel had persuaded her to encourage her husband +to commit espionage. Her brother-in-law had given her +$150.00 for railroad fare when she first visited David in Albuquerque +in late November of 1944. A few days after she arrived, +she and her husband took a stroll out of Albuquerque on Route +66 and she “told him that Julius was interested in the physical +description of the project at Los Alamos, the approximate number<span class="pagenum" id="Page_183">[Pg 183]</span> +of people employed there, whether the place was camouflaged, +what the security measures were, and the type of work +that David himself did....” The next day, after consulting “with +memories and voices in my mind,” Greenglass told her what she +wanted to know and, when she returned to New York a few +days later, she wrote it all down for Julius who seemed “very +pleased.”</p> + +<p>She said that the plan to switch pocketbooks with Ann Sidorovich +in a Denver theatre had soon been abandoned in favor of +a meeting in an Albuquerque supermarket. On March 3, 1945, +she left New York for her second trip to Albuquerque where, +after three weeks of apartment-hunting, she found the place on +North High Street. On April 18th, she suffered a miscarriage +and immediately wrote to Ethel Rosenberg to tell her that she +was confined to bed and would be unable to keep the supermarket +rendezvous which had been scheduled for “the last Saturday +in April or the first Saturday in May.” Ethel wrote back +that “a member of the family would come out to visit me the +last weeks in May, the third and fourth Saturdays.” The Greenglasses +visited the Central Avenue Safeway, which had been +chosen as the meeting spot, on both Saturdays but “no one +came.” It wasn’t until Sunday, June 3rd, that Harry Gold walked +into their living room and announced that he came “from +Julius.”</p> + +<p>Her description of the Gold visit was similar to David’s except +that she insisted that her husband had taken the Jello box side +out of her wallet while, as he remembered it, it had been in her +purse. The remainder of her testimony pertaining to the various +acts of espionage that took place during the rest of 1945 did not +differ materially from her husband’s. She did recall a conversation +with Ethel in 1946 about a “mahogany console table” +which her sister-in-law told her “she had gotten ... as a gift.” +Julius interrupted to say that “it was a special kind of a table” +and pointed out that its underside had been hollowed out so +that it could be used for microfilming.</p> + +<p>The defense made a monumental effort to discredit both witnesses. +The spectacle of a brother testifying against his sister was +not a pretty one and Emanuel Bloch made the most of it.</p> + +<p><span class="pagenum" id="Page_184">[Pg 184]</span></p> + +<div class="blockquot"> + +<p>Q. Do you bear any affection for your sister Ethel?</p> + +<p>A. I do.</p> + +<p>Q. You realize, do you not, that Ethel is being tried here on +a charge of conspiracy to commit espionage?</p> + +<p>A. I do.</p> + +<p>Q. And you realize the grave implications of that charge?</p> + +<p>A. I do.</p> + +<p>Q. And you realize the possible death penalty, in the event +that Ethel is convicted by this jury, do you not?</p> + +<p>A. I do.</p> +</div> + +<p>But David insisted that he had always loved his sister “as far +back as I ever met her and knew her.” If his testimony hurt her, +he was sorry, but he felt “remorse” and had to get it off his +chest.</p> + +<p>Bloch also tried to show that Greenglass lacked the technical +knowledge necessary to understand the material he said he was +obtaining for Julius. David admitted that he had failed all eight +courses he had taken at Brooklyn Polytech, that he had never +obtained a degree in science or engineering, and that he had had +no training in nuclear or atomic physics. As far as the Army was +concerned, he was classified as an automotive machinist and a +toolmaker. What he did know about the bomb, he had “picked +it up here and there.”</p> + +<p>As far as the Blochs were concerned, the Greenglasses were +testifying against their clients in the hopes of avoiding punishment +for their participation in the espionage conspiracy. At the +time of the trial, Ruth had neither been arrested nor indicted +despite the fact that she had been very much a part of Rosenberg’s +plans. Bloch <i>fils</i> pumped David about this.</p> + +<div class="blockquot"> + +<p>Q. Now, Mr. Greenglass, your wife has never been arrested, +has she?</p> + +<p>A. She has not.</p> + +<p>Q. And she has not pleaded guilty to any conspiracy to commit +espionage, has she?</p> + +<p>A. She has not.</p> + +<p>Q. And your wife is at the present time home taking care of +your children; isn’t that right?</p> + +<p>A. That’s right.</p> +</div> + +<p>His father tried the same tack when he had Ruth on the<span class="pagenum" id="Page_185">[Pg 185]</span> +stand. She had stated that, after her husband’s arrest, she had +informed her lawyer, O. John Rogge, that she wanted to testify +for the Government.</p> + +<div class="blockquot"> + +<p>Q. Well, was it your state of mind, that you thought you +would not be punished?</p> + +<p>A. No, I didn’t want to be punished.</p> + +<p>Q. Did you hope not to be punished?</p> + +<p>A. I did.</p> + +<p>Q. And did you at the time you spoke to Mr. Rogge, hope +that, if you told the truth and your husband told the +truth, you wouldn’t be punished?</p> + +<p>A. Mr. Bloch, I have always hoped that ...</p> + +<p>Q. Will you answer my question, please?</p> + +<p>A. Yes.</p> +</div> + +<p>Bloch Junior’s parting shot at the Greenglasses involved the +nature of their relationship with Julius after the failure of the +machine shop in 1949. Ruth testified that “we lost everything in +that business.” When her husband pulled out in August of that +year, he had asked to be compensated for his twenty-five shares +of stock. In fact, Ruth had “bought a book of promissory notes” +and drafted several notes for her brother-in-law to sign. “We +asked Mr. Rosenberg to sign the promissory notes and he refused, +and he said we did not have the understanding that required +it—a verbal understanding was sufficient, and he gave +neither my husband nor his brother a note.” But she insisted +that the incident did not cause any friction between the two +families even though she had consulted Mr. Rogge about David’s +rights.</p> + +<div class="blockquot"> + +<p>Q. Well, aren’t you a bit angry at either Mr. or Mrs. Rosenberg +because they did not pay you what you think you +were entitled to?</p> + +<p>A. I don’t think I am angry. I just can’t understand their +actions because there was a debt due.</p> + +<p>Q. You are not angry?</p> + +<p>A. No, I am not angry. I don’t understand people who do +not pay their debts, Mr. Bloch.</p> + +<p>Q. And you resent it?</p> + +<p>A. I don’t think I resented it. I couldn’t understand why I +wasn’t being paid for what was rightfully mine.</p> +</div> + +<p><span class="pagenum" id="Page_186">[Pg 186]</span></p> + +<p>It was David’s recollection that he had assigned his stock to +his sister’s husband in January of 1950 but that it hadn’t been +turned over to him until late April. There was some discussion +about the price to be paid for the stock—David wanted +$2,000.00 but finally agreed to accept half that amount in the +form of a note. After he gave the stock to Julius, he claimed that +Rosenberg never signed the promissory note which Ruth had +prepared for him. When Greenglass was arrested, he asked +Rogge to start a law suit against Rosenberg for the “few thousand +dollars” he said he had lost in the machine shop venture. +When Ruth testified, she swore that David had never asked his +lawyer to sue Julius—“I was the one who spoke of it,” she insisted, +“not my husband.”</p> + +<p>The Greenglasses were followed on the stand by Harry Gold +whose apologia included the saga of his trip to Albuquerque in +June of 1945. His version of the episode was identical with those +previously put into the record by David and Ruth. He had +arrived in Santa Fe on Saturday, June 2nd, where he had a +thirty-minute conversation with Fuchs. He then took the bus to +Albuquerque, a sixty-minute run, where he “managed to obtain +a room in the hallway of a rooming house.” Early the next morning, +he had registered in his own name at the Hilton Hotel and +then walked to the North High Street address Yakovlev had +given him, and climbed “a very steep flight of steps” to the Greenglasses +second-floor apartment. Although Ruth and David had +testified that they did not receive the $500.00 from Gold until +his afternoon visit, the courier remembered that he had given +them the envelope containing the money that very morning.</p> + +<p>Because Gold, other than by his references to “Julius,” did not +implicate either the Rosenbergs or Sobell, he was not cross-examined +by the defense team. As he vacated the witness chair to +return to the Lewisberg Federal Penitentiary, Saypol called Dr. +George Bernhardt. Bernhardt was a physician who lived only a +few doors away from the Rosenbergs on Monroe Street. He recalled +a telephone conversation he had had with Julius in May +of 1950. According to him, the defendant had said, “Doctor, +I would like to ask a favor of you. I would like to know what +injections one needs to go to Mexico.” When the doctor demurred, +Julius had assured him that “it is not for me; it’s for<span class="pagenum" id="Page_187">[Pg 187]</span> +a friend of mine.” Bernhardt then told him that he would need +“typhoid injections and a small-pox vaccination.”</p> + +<p>During this conversation, Bernhardt informed Rosenberg that +if his friend was a veteran “all he would need would be booster +doses instead of going through the entire series of injections, and +he said, ‘Yes, he is a veteran.’” He told his caller that the typhus +injection would not be necessary, however, if his friend was going +only to Mexico City but Rosenberg said, “He will probably +go into the interior.” Then, Bernhardt had recommended, “if +he decided to go ... give me a little notice because I don’t usually +stock a typhus vaccine and I would have to get it, and he +said he would let me know.”</p> + +<div class="blockquot"> + +<p>Q. Did that complete the conversation which you had with +him?</p> + +<p>A. That is right.</p> +</div> + +<p>Bernhardt admitted to Block Junior that he had been treating +Julius for hay fever during May of 1950. Rosenberg used to +come to the physician’s Knickerbocker Village apartment once a +week for injections. These injections were usually given in Bernhardt’s +living room. But the witness couldn’t remember whether +he had ever discussed vacations with his patient or shown him +pictures he had taken on Cape Cod. He was certain, however, +that he had never discussed “with Julius Rosenberg his taking a +vacation in Mexico.”</p> + +<p>The Government got back to the subject of Morton Sobell +again with the testimony of William Danziger, another City College +graduate who had worked with him in the Bureau of Ordinance. +Danziger had left Washington in March of 1950 to take +a job with the Academy Electrical Products Corporation in New +York. Shortly after his arrival, he had looked up the Sobells and, +with his wife, visited them in Flushing. It was during this visit +that Sobell, after learning that his guest was in “the electrical +business,” had suggested to him that he might be able to use +Rosenberg’s machine shop.</p> + +<p>In the latter part of June, Danziger visited the machine shop +where he was informed that Julius was “out at a stamping place. +I was at that time rather interested in getting an estimate on +stamping, so I went out to the stamping place and saw him out +there.” In July, Danziger dropped in at the shop once more “to<span class="pagenum" id="Page_188">[Pg 188]</span> +look over the ... facilities.” Rosenberg told him that “he was +rather tied up at that time” and would be unable to accept any +new work “for some months.” If Danziger wanted some work +done, he was advised “to contact him some time in the future.”</p> + +<p>On June 20th, Danziger telephoned Sobell and told him that +he was looking for an electric drill in order to do some repair +work at his home. Sobell informed him that “he was getting +ready to leave for a vacation in Mexico,” but if Danziger wanted +a drill, he would have to come to Flushing to get it. When he +arrived at the Sobell apartment that evening, he noticed that +“there was packing going on, there were valises standing there.” +He also saw a car in the driveway with some valises in it. After +Sobell gave him the electric drill, he told Danziger that “he was +going to Mexico City by air.”</p> + +<p>Some weeks later, Danziger received a letter addressed to him +at the Academy Electrical Products Corporation from an “M. +Sowell” in Mexico City. It was from Sobell and contained two +enclosures which he was asked to “forward ... and I will explain +to you when I get back.” One was a note to Sobell’s parents +and the other to Edith Levitov, a sister-in-law who lived in +Arlington, Virginia. Danziger delivered both notes and also followed +Sobell’s directions to “deliver my address to Max Pasternak.”</p> + +<div class="blockquot"> + +<p>Q. Did you know who Max Pasternak was?</p> + +<p>A. I knew he was related in some way.</p> +</div> + +<p>In the middle of July, he received a second letter from Mexico +City. This time, the name on the envelope was “M. or Morty +Levitov.” It contained “a letter for me, an enclosure for Miss +Edith Levitov and a short additional note which he asked me to +forward, using somewhat similar phraseology, ‘I will let you +know about it when I get back.’” Danziger promptly forwarded +the note to Miss Levitov and never heard from Sobell again. +Before he stepped down, the witness said he thought that the +return address on the second communication—a Cordova or +Corbova Street—was different from the one on the first envelope.</p> + +<p>Then a Mexico City interior decorator with the impressive +name of Manuel Giner de Los Rios sauntered up to the stand. +With an interpreter at his side, he testified in a soft Spanish that<span class="pagenum" id="Page_189">[Pg 189]</span> +he lived in Apartment 5 at 153 Calle Octava de Cordoba. He +remembered that the Sobells had rented Apartment 4 at the +beginning of July, 1950, and that he had had a conversation on +the stairs with Morton about a tank of cooking gas on the day +they moved in. A week later, he invited the new tenants to “a +party for the family and friends in honor of the saint’s day....”</p> + +<p>The Sobells soon reciprocated by inviting de Los Rios and his +wife to dinner. A few days afterwards, Sobell, who appeared to +be “a little nervous, a little worried,” asked his new friend “how +one could leave Mexico.”</p> + +<div class="blockquot"> + +<p>Q. Did he make any statement as to why he wanted to leave +Mexico?</p> + +<p>A. Only because he was afraid.</p> + +<p>Q. Did he say specifically what he was afraid of?</p> + +<p>A. He was afraid that they were looking for him so that he +would have to go to the Army.</p> + +<p>Q. Did he say who was looking for him?</p> + +<p>A. The military police.</p> +</div> + +<p>“Sometime around the 20th or 22nd of July, 1950,” de Los Rios +recalled, Sobell had gone to Vera Cruz where he stayed “for +about fifteen days.” The decorator had received two letters from +him during this period, both of which began with the salutation, +“Dear Helen.” The first was postmarked Vera Cruz and the second +was from Tampico. He delivered each letter personally to +Mrs. Sobell.</p> + +<p>The interpreter had his work cut out for him that afternoon. +Señor de Los Rios had no sooner left the courtroom when the +bailiff called out the name of Minerva Bravo Espinosa, who, it +turned out, worked in an optical shop on the Calle Cinco de +Mayo in Vera Cruz. On July 26, 1950, an American who gave +his name as “Mr. M. Sand,” had placed an order with her for a +pair of glasses. She had no difficulty in recognizing Sobell as that +man. He had filled out a card “which purchasers make out to +specify what they buy.” At this point, Mr. Kuntz stood up and +announced that “we will concede that we filled out the card and +used the name of Sand and bought a pair of glasses there.”</p> + +<p>José Broccado Vendrell, who was one of the proprietors of the +Grand Hotel Diligencias in Vera Cruz, remembered that a +“Morris Sand” had stayed at his establishment until July 30th.<span class="pagenum" id="Page_190">[Pg 190]</span> +Vendrell was followed by Dora Bautista, a clerk at a Tampico +hotel. On July 30th, an American, who gave his name as “Marvin +Sand,” had registered and asked her for directions to the +Banco Granadero. Both witnesses identified Sobell as the man +they had seen. Glenn Dennis, an official of a Mexican airline, +confirmed that a passenger by the name of “N. Sand” flew from +Vera Cruz to Tampico on July 30th, and a “Morton Solt” from +Tampico to Mexico City two days later.</p> + +<p>Elizabeth Bentley, fresh from her triumphs before sundry Congressional +investigating committees, contributed little to the +prosecution’s case. Outside of adding to the aura of Communism +that permeated the entire trial, her testimony consisted of innuendo +only. In the fall of 1942, she had accompanied Golos, +her party superior (and lover), to the vicinity of Knickerbocker +Village, where he was “to pick up some material from a contact, +an engineer.” At that time, she had waited in a car while +Golos talked to his “contact.” From then until November of the +next year, she used to receive telephone calls from a man “who +described himself as ‘Julius.’” Golos had told her that this man +“lived in Knickerbocker Village,” but she had “never met anyone +whose voice I heard, whom I could describe as Julius.”</p> + +<p>The government’s last witness was James S. Huggins, an immigration +inspector for the Department of Justice. On August 18, +1950, nine Mexican security policemen had brought Morton +Sobell to his office in Laredo, Texas. He identified a manifest +record which he had filled out from information given to him by +Sobell. At the bottom of the card, he had written, “Deported +from Mexico,” despite the fact that the Mexican authorities had +not shown him any deportation orders. As soon as Huggins had +laboriously typed in the necessary personal data on the manifest, +the defendant was arrested by FBI agents who were waiting +in the outer office.</p> + +<p>As Huggins left the witness stand and headed back for the +anonymity of the Immigration and Naturalization Service, Saypol +announced that “The Government rests, if the Court please.” +In a little less than two weeks, the prosecution had presented the +evidence which it hoped would convict all three defendants. +After some defense motions for a mistrial because of the infusion +of testimony about the Communist Party were denied, Bloch<span class="pagenum" id="Page_191">[Pg 191]</span> +Junior informed Kaufman that “my first witness is the defendant +Julius Rosenberg.”</p> + +<p>It was late on the afternoon of March 21, 1951, that the mustached, +bespectacled Rosenberg sat himself down in the witness +chair. A thirty-three-year-old electrical engineer, he proudly +stated that he had married Ethel on June 18, 1939, and that +they were the parents of two boys, Michael and Robert. Outside +of the fact that he knew a great many people whose names were +mentioned during the trial, he denied that he had in any way +been involved in espionage. As for Russia, he “felt that the Soviet +government had improved the lot of the underdog there ... and +at the same time I felt that they contributed a major share in +destroying the Hitler beast who killed six million of my co-religionists.”</p> + +<div class="blockquot"> + +<p>Q. Did you feel that way in 1945?</p> + +<p>A. Yes, I felt that way in 1945.</p> + +<p>Q. Do you still feel that way today?</p> + +<p>A. I still feel that way.</p> +</div> + +<p>But he was, and always had been, loyal to the United States.</p> + +<p>He testified that Greenglass had asked him for $2,000.00 in May +of 1950. When Julius asked him why he needed this money, he +was told, “I need the money. Don’t ask questions.” David had +also urged his brother-in-law to see if his doctor “would make +out a certificate for smallpox vaccination.” In addition, he had +wanted to know “what kind of injections are required to go into +Mexico.” It was after this conversation that Rosenberg had +questioned Dr. Bernhardt about the medical requirements for a +Mexican trip.</p> + +<p>Toward the end of May, David had telephoned Rosenberg +and pleaded with him to come over to his apartment. He told +Julius, whom he usually called Julie, that he was “in a terrible +jam.” He said he needed a “couple of thousand dollars in cash” +and, when his brother-in-law told him that he couldn’t raise that +amount of money, he had shouted “... if you don’t get me +that money you are going to be sorry!” Outside of an inconsequential +meeting a few days later, that was the last time that +Julius had seen David until the latter testified at the trial.</p> + +<p>Ethel buttressed her husband’s emphatic denials of any espionage +activities. She knew that Julius had purchased their console<span class="pagenum" id="Page_192">[Pg 192]</span> +table at Macy’s and that “it was about $20 or $21.” Long after +the trial, such a table, which a Macy employee priced at $20.36, +was found in her mother-in-law’s apartment. As far as wrist-watches +were concerned, the one she had been wearing when +she was arrested had been given to her by her husband on her +birthday in 1945. She remembered that Julius had lost his watch +on a New York Central train in August of 1948. She was certain +that neither the console table nor the watches had been given +to them by the Russians.</p> + +<p>When Saypol took over, both witnesses refused to answer any +questions that had to do with their association with the Communist +Party. Julius informed Judge Kaufman that “if Mr. Saypol +is referring to the Young Communist League or the Communist +Party, I will not answer any question on it....”</p> + +<div class="blockquot"> + +<p>Q. You mean you assert your constitutional privilege against +self-incrimination?</p> + +<p>A. That’s right.</p> +</div> + +<p>Ethel bridled at any reference to the word “Communist” and refused +to answer such questions as “Did you ever sign a Communist +Party nominating petition for elective office?” and “Were +they [friends with whom the Rosenbergs had lived for a time] +members of the Communist Party?”</p> + +<p>After Thomas V. Kelly, a Macy’s attorney, testified that it was +impossible to check the purchase of the console table because the +store’s records for 1944 had been destroyed, the defense called it +a day. But Saypol had three rebuttal witnesses up his well-tailored +sleeve—Evelyn Cox, a domestic who had worked for the +Rosenbergs in 1944 and 1945, Helen Pagano, a legal secretary +employed by O. John Rogge, and Ben Schneider, a commercial +photographer. Mrs. Cox was there to swear that Ethel Rosenberg +had once told her that the console table had been given to +her husband as “a sort of a wedding present.” Mrs. Pagano said +that Louis Abel, who was married to Ruth Greenglass’ sister, +had brought $3,900.00 to Rogge’s office on June 16, 1950, the day +after David’s arrest, and that this money had been wrapped “in +a brown bag.” Schneider identified the Rosenbergs as the couple +who had ordered some passport pictures from him on a Saturday +in May or June of 1950.</p> + +<p>On March 29th, the jury, after deliberating more than eighteen<span class="pagenum" id="Page_193">[Pg 193]</span> +hours, returned verdicts of “guilty as charged” against all +three defendants. One week later, Judge Kaufman sentenced the +Rosenbergs to death because, as he somewhat awkwardly put it, +“... your conduct in putting into the hands of the Russians, the +A-Bomb ... has already caused, in my opinion, the Communist +aggression in Korea with the resultant casualties exceeding 50,000....” +As for Sobell, he thought that “the evidence ... did not +point to any activity on your part in connection with the atom +bomb project” and sentenced him to thirty years, the maximum +prison term provided by the Espionage Act, with a “gratuitous” +recommendation that he never be admitted to parole. The next +day, David Greenglass, whose sentence had been deferred to the +end of the trial, was sentenced to a fifteen-year term.</p> + +<p>After more than two years of fruitless appeals and motions for +a new trial, the Rosenbergs’ executions were set for eleven p.m. +on the night of June 19, 1953, at Sing Sing Prison. But three +days before, Irwin Edelman, “an interested citizen,” filed a motion +with Mr. Justice William O. Douglas, in which he argued +that the penalties of the Atomic Energy Act rather than those +of the Espionage Act were applicable and that, under the +former, the Rosenbergs could not have been sentenced to death. +On June 17th, Douglas granted a stay of execution in order to +give Edelman’s attorneys time to argue their point. But Chief +Justice Vinson reconvened the Court on the following day and +the full bench, by a six-to-three vote, vacated Douglas’ stay at +noon on June 19th. After President Eisenhower refused to grant +clemency, the couple’s execution was moved ahead three hours +in order to avoid a conflict with the Jewish Sabbath. A few minutes +after eight p.m., Julius and Ethel Rosenberg passed into +what Joseph Conrad once called “the great indifference of +things.”</p> +<hr class="full"> + +<div class="chapter"> +<p><span class="pagenum" id="Page_194">[Pg 194]</span></p> + +<h2 class="nobreak" id="c11">9</h2> +</div> + +<p class="u large"><i>Contempt by Silence</i></p> + +<p class="c xlarge">The United States</p> + +<p class="c xlarge"><i>versus</i></p> + +<p class="c xlarge">Corliss Lamont</p> + + +<p>On February 9, 1950, a comparatively unknown United States +Senator from Wisconsin, who was beginning the fifth year of a +colorless first term, addressed the Ohio County Women’s Republican +Club of Wheeling, West Virginia. His subject was “Communism +in Government.” Halfway through his talk, in a gesture that +was shortly to become his trademark, he held up a sheaf of papers +and announced to his startled audience that “I have here in my +hand a list of 205 that were known to the Secretary of State as +being members of the Communist Party and who, nevertheless, +are still working and shaping the policy in the State Department.” +Before he sat down, linotypers, the country over, were +busy punching out the words that were to free him from the +obscurity he abhored. Whether he said 57 or 81 or 205 didn’t +seem to make much difference—Joseph Raymond McCarthy, ex-Democrat, +ex-judge, ex-Marine, had struck pay dirt.</p> + +<p>Eleven days later, McCarthy took his attack on the State Department +to the floor of the Senate. In a tumultuous six-hour +presentation, that was interrupted more than one hundred and +fifty times, he dredged up eighty-one cases, all of which had been +developed some years earlier by State’s own security investigators. +Of these eighty-one, he discussed some seventy-six, broken down +into varying degrees of risks. He made no attempt to prove that +any of these “risks” were “members of the Communist Party,” or +even that they were all State employees, as he had alleged at<span class="pagenum" id="Page_195">[Pg 195]</span> +Wheeling, but contented himself with the observation that there +was “something radically wrong” with an agency that did not +fully investigate its own suspicions. Before the stormy session +broke up, a few minutes shy of midnight, the gentleman from +Wisconsin was hoarse and incoherent, and his fellow Senators +were so thoroughly confused by the discrepancies in his figures +that they had given up all pretence of trying to understand them. +The Big Lie, or, as one writer later pluralized it, the Multiple +Untruth, had rarely gone over so well.</p> + +<p>The immediate result of McCarthy’s February 20th speech +was Senate Resolution 231, which authorized the Senate Committee +on Foreign Relations “to conduct a full and complete +study and investigation as to whether persons who are disloyal +to the United States are, or have been, employed by the Department +of State.” On March 8th, a Foreign Relations subcommittee, +headed by Senator Millard Tydings, Maryland’s patrician legislator, +began what was to be a four-month investigation of +McCarthy’s charges. After more than 1500 pages of testimony had +been taken, most of it supplied by the parvenu accuser, the +hearings ground to a close in late June with Owen Lattimore, +a professor of government at Johns Hopkins, being offered up as +a blood sacrifice. Lattimore, who had never been a State Department +employee, was described by McCarthy as “the chief architect +of our Far Eastern policy” and “Alger Hiss’ boss in the espionage +ring in the State Department.”</p> + +<p>“I’m willing,” he told Tydings, “to stand or fall on this one. +If I was wrong on this, I think the subcommittee would be justified +in not taking my other cases too seriously.” The subcommittee +apparently took him at his word because it found that +“starting with nothing, Senator McCarthy plunged headlong +forward, desperately seeking to develop some information which, +colored with distortion and framed by a blaze of lies, would +forestall the day of reckoning.” But, although Tydings and a +majority of his colleagues were convinced that the junior Senator +from Wisconsin had been guilty of perpetrating a “fraud and a +hoax” upon the country at large, the very publicity that the +hearings received quickly established McCarthy as a farce to be +reckoned with. The wrong man and the right moment had met +head-on.</p> + +<p><span class="pagenum" id="Page_196">[Pg 196]</span></p> + +<p>In the Fall of 1951, Senator William Benton of Connecticut +persuaded the Subcommittee on Privileges and Elections of the +Senate’s Committee on Rules and Administration “to determine +whether expulsion proceedings should not be instituted against +Joseph R. McCarthy” for lying to the Senate and to the Tydings +Committee. As Benton put it, McCarthy, by being unable to +substantiate his claimed list of 205 (or 81 or 57) party members +in the State Department, was clearly “a calculating dispenser of +false and perverted information.” But the change in Senate +leadership occasioned by the Eisenhower sweep in 1952 resulted +in the tabling of the subcommittee’s report, a document which +raised a great many intriguing (and unanswered) questions about +its subject’s financial dealings. McCarthy, who had been instrumental +in Tydings’ November defeat, became the chairman of +both the Senate’s Committee on Government Operations and its +roving subsidiary, the Permanent Subcommittee on Investigations, +and the perennially ill-shaven gentleman from the lake +country had an open field before him.</p> + +<p>On September 23, 1953, the Permanent Subcommittee, consisting +(as it so often did) only of its chairman, was ensconced in +Room 128 of New York City’s United States Court House. The +day before, a subpoena had been served on Corliss Lamont, the +maverick son of one of J. P. Morgan’s partners, ordering him to +appear at 2:30 the next afternoon to “testify what you may know +relative to the subject matters under consideration by said committee,” +namely Communist infiltration in the Army. Dr. Lamont, +a leading exponent of what he described as “Democratic +Socialism,” who was then teaching philosophy at Columbia University, +was the author of several books, including one entitled +<i>The Peoples of the Soviet Union</i>.</p> + +<p>When Lamont, who had been cooling his heels for more than +an hour in an anteroom, walked into Room 128 a few minutes +after 3:30 on the afternoon of September 23rd, he had no way of +knowing that his case was to be, in a sense, his interrogator’s +epitaph. 1953 had been a big year for McCarthy. Before it ended, +he and his road-show juveniles, Cohn and Schine, had been involved +in some 157 inquiries concerning mainly the Voice of +America and the Signal Corps installations at Fort Monmouth, +New Jersey. During the first two months of 1954, he was, with<span class="pagenum" id="Page_197">[Pg 197]</span> +the unwilling help of an honorably discharged army dentist and +an insulted brigadier general, to set the stage for his own <i>Götterdämmerung</i>. +But Irving Peress, Ralph Zwicker and the Army-McCarthy +vendetta were still tomorrow’s headlines when the +mild-mannered Lamont eased himself into the witness chair and +immediately announced that he had a statement objecting to the +subcommittee’s jurisdiction which “I would like to read into the +record.”</p> + +<p>The chairman, always a great stickler for the amenities, informed +him that he would have to be sworn before he made any +speeches. The witness indicated that he would rather affirm than +take an oath, and McCarthy promptly acceded to his request. As +Lamont adjusted his glasses and again prepared to read his statement, +the chairman interrupted to ask him, “Why you want to +affirm rather than be sworn?” When Lamont objected to having +to explain his religious beliefs, the Senator snapped, “You will be +sworn unless you tell us you have got some ground for refusing +to be sworn.” The exchange ended when McCarthy, who apparently +felt that he was getting in beyond his depth, capitulated, +after warning Lamont that he hadn’t heard the last of the matter. +He couldn’t have been more prophetic if he had tried.</p> + +<p>Lamont had barely started reading his prepared statement +when the chairman suddenly exhibited a compelling curiosity to +learn the names of his two attorneys, although one of them, +Philip Wittenberg, had submitted his calling card when the +hearing opened. When Wittenberg had formally introduced himself +and his associate, Irving Like, McCarthy waved Lamont on. +The witness, with a remarkable show of almost saintly patience, +picked up where the last interruption had left him, and continued +his statement.</p> + +<p>After informing the chairman that he was “not now and never +had been a member of the Communist Party,” Lamont vigorously +attacked the subcommittee’s jurisdiction. As far as he was concerned, +McCarthy had no power to inquire into his “personal and +private affairs.” Not only was this prohibited by the Constitution’s +First Amendment, but no statute or Senate rule gave the +Permanent Subcommittee the right to question a private citizen +as to his “personal conduct, personal beliefs and associational +activity.” Indeed, if any governmental agency had this right, it<span class="pagenum" id="Page_198">[Pg 198]</span> +was the judiciary and not the legislature. Lastly, Lamont maintained +that the absence of the subcommittee’s three Democrats, +who had resigned in a huff in the late summer of 1953 over the +chairman’s insistence on hiring staff personnel without consulting +them, “has deprived this committee of its competency to act until +it has been properly constituted.”</p> + +<p>If McCarthy was impressed by what he had heard, his visage +didn’t reflect it. Frank Carr, the subcommittee’s staff director, +who was hovering at his elbow, handed him a dark-covered book +which turned out to be Ernest J. Simmons’ <i>U.S.S.R., a Concise +Handbook</i>, to which, it seemed, Dr. Lamont had contributed a +chapter entitled “National and Racial Minorities.” After observing +darkly that this book was “being used by the military to +indoctrinate our troops,” the chairman wanted to know whether +the witness had been paid for his chapter. Lamont couldn’t remember +whether he had or not, but promised to furnish that +information after checking his records.</p> + +<p>The next order of business was a mysterious pamphlet called +<i>Psychological and Cultural Traits of Soviet Siberia</i>, which later +turned out to have been prepared by Army Intelligence. Its +bibliography referred to <i>The People of the Soviet Union</i> by a +“C. Lamont.” Lamont readily admitted that he had written a +book by that name in 1946, but had never read or even heard of +the long-named work in which it was cited. In fact, he had tried +to find a copy after it was mentioned by McCarthy at a pre-hearing +press conference, but was unable to locate it. The Senator +promptly asked Frank Carr to supply the witness with a copy. +He directed Lamont “to examine the document and then mark +those passages which come verbatim from your book.”</p> + +<p>Up to this point, there had been little to distinguish the proceedings +from the almost two hundred that had preceded it since +the Wisconsin Republican had decided that the national destiny +called for more drastic tactics than the Constitution permitted. +Outside of the fact that Louis Budenz, hardly a stranger at Congressional +hearings, was sitting in a corner of the room, the executive +session seemed destined for next morning’s back pages. But +what had all the earmarks of an innocuous little query began to +stir things up. The question: “Do you know a Mr. Louis Budenz, +Mr. Lamont?”</p> + +<p><span class="pagenum" id="Page_199">[Pg 199]</span></p> + +<p>Lamont refused to answer the question. When McCarthy asked +him for his reasons, the witness offered to read his statement +again, but the chairman wasn’t having any more of that. Anticipating +that Mr. Lamont would still refuse to answer the question, +he ordered him to do so.</p> + +<div class="blockquot"> + +<p>Q. I say, so the record is complete, you are being ordered to +answer, and I assume you are refusing to answer?</p> + +<p>A. Yes, on the grounds stated.</p> +</div> + +<p>The chairman followed up his first question about Budenz +with another concerning the ex-Communist. “Did you ever admit +to Mr. Budenz, in a telephone conversation” he asked him, “that +you were a member of the Communist Party?” Again, the witness +failed to give satisfaction. “I refuse to answer that on the same +grounds, Mr. Chairman, as set forth in this statement.” But he +was quick to point out that he was not standing on the Fifth +Amendment.</p> + +<div class="blockquot"> + +<p>Q. You are not refusing under your rights under the Fifth +Amendment, right?</p> + +<p>A. No, no.</p> +</div> + +<p>With the cavalier observation that “I think it is necessary for the +Chair to order him to answer in case the committee decides to +take contempt proceedings against him,” McCarthy waited for +his man to come to heel.</p> + +<p>Lamont, who recognized a crossroads when he entered one, +decided to confer with Wittenberg. The chairman, while very +solicitous of the right of a witness to consult his attorney, reminded +the official stenographer to make a notation of the fact +“so that the record is complete.” After a brief parley, Lamont +had his answer ready. “I am declining to answer on the ground +that I do not wish to involve myself in controversy with a known +provocateur, and I am a loyal American. As I said in the statement, +I am not and never have been a member of the Communist +Party.” No, he would not identify “the known provocateur,” +other than the “person you named in the statement, Mr. Chairman.”</p> + +<p>Then McCarthy turned to “a Clarence Hathaway.” Had the +witness worked with him “in connection with the penetration of +various organizations by the Communist Party?” Lamont objected +to the form of the question and, when his objection was promptly<span class="pagenum" id="Page_200">[Pg 200]</span> +overruled, went back to his basic point that the subcommittee +did not have jurisdiction to interrogate him. When the Senator +pumped him as to whether he had been doing any undercover +work for any Communist Party members, the witness, after +characterizing the questions as “outrageous,” lapsed into stony +silence.</p> + +<p>Scarcely concealing a growing jubilation, McCarthy decided +that it was time to remind the witness that he was digging a hole +for himself. After marking Lamont’s statement as Exhibit 1, he +ordered the stenographer to “have the record show the only +grounds for the refusal on the part of the witness are the grounds +referred to in Exhibit 1; that the witness has said that he is not +relying on the Fifth Amendment.” When Wittenberg pointed out +to him that his client had also objected to the form of the questions, +McCarthy brushed him aside. However, like Lamont, +Wittenberg, too, had his flinty side. “But, sir, you were dictating +to the stenographer the reason for the refusal of the witness, and +he should have the full record.” The chairman’s answer was +brief and conclusive: “You may show whatever you like in the +record.”</p> + +<p>Then McCarthy returned to Ernest J. Simmons and his +<i>U.S.S.R., a Concise Handbook</i>. But Lamont was just as adamant +as he had been with Budenz and Hathaway. As far as he was +concerned, “the book speaks for itself.” This was all the opening +an old infighter, who had learned his trade in the North Woods, +needed. “You think the book speaks for itself whether he +[Simmons] was a Communist?,” he asked the witness. Wittenberg’s +somewhat hurried instructions to “decline to answer” +proved to be totally unnecessary since, like all good rhetoricians, +the chairman was determined to answer his own question. He +leaned back in his chair, tugged at his right ear lobe, and solemnly +announced: “This might be the first time today that I +would agree with you. I think it does speak for itself. He uses +you and other men named as Communists almost exclusively.” +Lamont, who had been listening politely, hardly seemed impressed +by this revelation.</p> + +<p>By the time the five-o’clock shadow on the Senatorial jowls +had reached its hirsute zenith, Lamont had refused to answer +some twenty-three questions, one of which was framed in Russian<span class="pagenum" id="Page_201">[Pg 201]</span> +and was destined to be lost to posterity because the stenographer’s +knowledge of the language was limited to “Da” and “Nyet.” It +was obvious that the witness was more than prepared for any +eventualities. When McCarthy pointed out to him that “you can +make a very good test case, Mr. Lamont,” Thomas W. Lamont’s +middle son replied, with some fervor, “I hope so.”</p> + +<p>As the long afternoon drew to a close, Lamont was ordered to +come back at ten o’clock on Monday morning, this time to Room +318 of the Senate Office Building in Washington. When Wittenberg +pleaded a previous engagement, the time was changed to +one p.m. Before the session ended, McCarthy informed Wittenberg +that, while he could not supply him with a copy of the testimony, +he was free to correct any errors in the transcript when +it was ready. As the brief cases were being snapped closed, the +chairman turned to apostate Budenz, whose role as the silent +observer was not his usual one.</p> + +<div class="blockquot"> + +<p>Q. Before we go, Mr. Budenz, you have listened to the testimony. +Can you identify this as the man whom you discussed +in your testimony before?</p> + +<p>A. Yes, sir.</p> + +<p>Q. Good.</p> +</div> + +<p>No sooner had Lamont and his retinue walked down the courthouse +steps than the Senator closeted himself with the waiting +reporters who knew that a subcommittee rule that “all testimony +taken in executive session shall be kept secret and will not be +released for public information without the approval of a majority +of the subcommittee” had never stood in its chairman’s way +before.</p> + +<p>Two days later, Irving Like received a call from a member of +the subcommittee’s staff, informing him that there had been a +change of plans and that Dr. Lamont’s appearance on Monday, +the twenty-eighth, would be quite unnecessary. Like stated that +his client would show up in Room 318 of the Senate Office Building +at the appointed time unless the oral adjournment was confirmed +in writing. At 2:41 p.m. a telegram was dispatched from +Senator McCarthy’s office, addressed to Corliss Lamont.</p> + +<div class="blockquot"> + +<p>PURSUANT TO CONVERSATION WITH MR. LIKE +OF MR. WITTENBERG’S OFFICE THIS DATE, YOUR +APPEARANCE BEFORE THIS SUBCOMMITTEE IN<span class="pagenum" id="Page_202">[Pg 202]</span> +WASHINGTON, D. C. ON MONDAY, SEPTEMBER 28, +1953, HAS BEEN POSTPONED. HOWEVER, YOU ARE +UNDER CONTINUING SUBPOENA AND BOTH YOU +AND YOUR COUNSEL WILL BE NOTIFIED WHEN +YOUR APPEARANCE IS REQUIRED.</p> + +<p class="pad2">JOE McCARTHY, CHAIRMAN SENATE<br> +PERMANENT SUBCOMMITTEE ON<br> +INVESTIGATIONS OF THE SENATE<br> +COMMITTEE ON GOVERNMENT<br> +OPERATIONS.</p> +</div> + +<p>Wittenberg received a similar wire.</p> + +<p>At ten a.m. on Monday morning, McCarthy and five members +of his staff marched with measured tread into Room 318. The +chairman solemnly called the committee to order. “We had +announced last week that Mr. Corliss Lamont would be before +the committee today, Mr. Lamont has not been subpoenaed. He +was notified that he could come today and purge himself of the +contempt for failure to answer last week.” As his words trailed +off into ether, McCarthy looked around the room and, with a +bemused innocence that would have put Scarpia to shame, asked, +“Is Mr. Lamont here?” The official transcript notes that “There +was no response.” With a grave shake of his head, the chairman +ordered Lamont’s testimony made public “so that the reason for +the citation for contempt will be very clear.”</p> + +<p>On October 2nd, Dr. Lamont wrote to the Senator and reminded +him that he was indeed under subpoena on September +28th, and that his appearance in Washington had been postponed +by McCarthy himself. Almost a month later, he received a brief +letter from Frank Carr, informing him that he had been entirely +correct in his earlier communication and that the transcript of +the hearing would be rectified accordingly. The next day, Lamont +addressed another letter to McCarthy, asking how he intended +“to make the record conform to fact and correct the flagrant injustice +to me.” There was no answer.</p> + +<p>McCarthy didn’t get around to Lamont’s citation for contempt +until the following July. In between, he had found bigger game. +On January 30th, Major Irving Peress, an army dentist, had +refused to answer some questions put to him by the Wisconsin +Senator on the ground that his answers “might tend to incriminate<span class="pagenum" id="Page_203">[Pg 203]</span> +me.” Three days later, Peress was given an honorable discharge +and became, posthaste, the Fort Sumter of his time. When +McCarthy, in a temper tantrum over Peress’ recent promotion to +major, told Brigadier General Ralph W. Zwicker, who had distinguished +himself at the Battle of the Bulge, that he was “a disgrace +to the uniform [and] not fit to be an officer,” the long-simmering +conflict between the Senator and the Administration +was in the open. On February 21st, Secretary of the Army Robert +T. Stevens finally screwed up his courage and condemned what +he termed “the humiliating treatment” Zwicker had received, +and the White House followed suit on March 3rd when it +announced that no officer was required “to submit to any kind +of personal humiliation when testifying before Congressional +committees or elsewhere.” Indian Charlie’s knee had found its +target at last.</p> + +<p>A week later, Stevens released a thirty-four-page report which, +in effect, accused Frank Carr and Roy M. Cohn, the subcommittee’s +chief counsel, of persecuting the Army for its failure to +defer or commission G. David Schine. In retaliation, McCarthy +asserted that Stevens and his generals were holding Schine as a +“hostage” in order to prevent a thorough investigation of the +Fort Monmouth personnel. The net result—thirty-six days of +testimony, 187 hours of televised proceedings, thirty-two witnesses, +and 7424 pages of transcript. The hearings, which were conducted +before the temporarily McCarthy-less Permanent Subcommittee, +made Joseph Welch famous, established “point of order” as a +household phrase, cost both Cohn and Carr their jobs, and started +the soybean trader from Appleton on his Retreat from Monmouth. +Although the major charges of both sides went largely +unsubstantiated, it was clear, as a suddenly fearless Stuart Symington +told the two-penny Torquemeda (and a national television +audience) that no one was “afraid of anything about you” anymore. +Apparently, Joe Welch wasn’t the only one who “had +never really gauged your cruelty or your recklessness....” The +bubble had, at long last, resoundingly burst.</p> + +<p>It was at this ticklish moment in his career that McCarthy +urged his fellow Senators to cite Lamont for contempt. On July +16th, four days before Cohn’s resignation, he introduced Resolution +281, which asked the President of the Senate to forward the<span class="pagenum" id="Page_204">[Pg 204]</span> +Lamont case “to the United States Attorney for the Southern +District of New York to the end that the said Corliss Lamont +may be proceeded against in the manner and form provided by +law.” Accompanying the resolution was a carefully edited version +of the Lamont testimony, which omitted any reference to the +affirmation incident or the discussion of the adjournment date. +Apparently, photographs weren’t the only things that could be +cropped if one had a talent for that sort of business.</p> + +<p>It wasn’t until August 11th that McCarthy’s resolution reached +the top of the Senate agenda. Nine days earlier, Senator Ralph E. +Flanders’ Resolution 301 to censure his Wisconsin colleague had +been referred to a select committee of three Republicans and +three Democrats, headed by Utah’s austere Arthur V. Watkins. +This didn’t seem to faze McCarthy, who blithely informed his +brethren that he had received an opinion from the Attorney +General that the matter of Lamont’s recalcitrance “could well be +submitted to the grand jury for indictment.” When New York’s +Lehman let it be known that he intended to object to any summary +treatment of the resolution, McCarthy suddenly remembered +that he had left a “number of witnesses” simmering in the +committee room, and hurriedly left the chamber.</p> + +<p>Because of Lehman’s objections, it was not until August 16th +that full debate began on the Lamont citation. The late Senator +Langer, with McCarthy baying at his heels, spread on the pages +of the Congressional Record the complete story of the adjournment +of the September hearing to one o’clock on the afternoon of +the following Monday, and the subsequent telegrams which postponed +it until further notice. McCarthy’s defense was that +Lamont had been “told by telephone that if he wanted to appear +and purge himself of contempt, Monday would be the deadline....” +It was simply a case of a refusal to take advantage of some +misguided but well-intended official benevolence. Besides, why +all the furor about this “very wealthy man, not in his own right, +but through inheritance,” who had “done more to damage this +nation than any other man in the country, with the possible exception +of Frederick Field.”</p> + +<p>Langer didn’t seem particularly concerned with the size of +Lamont’s bank roll. Observing that the only thing in which he +was interested was “fair play to the witness,” the Senator from<span class="pagenum" id="Page_205">[Pg 205]</span> +North Dakota hammered home his thesis that McCarthy had +been guilty of a gross misstatement when he had announced on +September 28th that “Mr. Lamont has not been subpoenaed.” +Just read the telegrams of September 25th, he urged his fellows: +what could be plainer than the words “You are under continuing +subpoena”? Obviously, there was little a body could say about +that and the Badger State’s junior Senator slipped out the back +of the Senate chamber.</p> + +<p>He returned shortly after Langer had yielded the floor to +Lehman who decided to explore McCarthy’s insistence that +Lamont explain why he chose to affirm rather than take an oath. +With a fat tongue in a fat cheek, McCarthy assured the Senators +that he was certain that Lehman was “not doing it at all purposely” +when he had misinformed them. The real truth of the +matter was, he told them, that, while a witness had the right to +affirm, he had to state that he had religious scruples against an +oath. This was too much for New Mexico’s Chavez whose Jesuit +law school training had taught him that there was no difference +between swearing and affirming, and that neither had to be +explained.</p> + +<p>But Lehman’s real argument against the proposed citation had +nothing to do with whether a man took an oath or not. He reminded +the Senate that another case—<i>United States v. Emspak</i>—which +involved the extent of Congressional investigating +powers, was pending before the Supreme Court. Since he was +certain that its decision would be handed down in “a reasonable +number of months” (it took eight), he saw no reason for not +adjourning the proposed citation for a little while. McCarthy, +who had been pleading with Lehman to yield the floor, could +restrain himself no longer. Why, this man Lamont, he reminded +his friend from New York, has never reformed. “He is the same +tool of the Communist conspiracy.” Did the Senator realize that, +as late as May of 1954 the witness had had the effrontery to attack +“every committee that has ever exposed a Communist from the +committee headed by Martin Dies, down to date?” Such a man +was totally unworthy of any Senatorial support.</p> + +<p>Just as it looked as if Lehman was getting somewhere, pro-citation +help arrived from an unexpected quarter. Leverett +Saltonstall heaved his lanky bulk out of his chair and persuaded<span class="pagenum" id="Page_206">[Pg 206]</span> +the New Yorker to give him a moment. He had known Lamont +since the latter was ten years old. He had nothing but respect +for his parents and his brothers but, as for Corliss, he was “different +from his brothers,” who were doing very nicely indeed. The +difference, as he explained it, seemed to lie in the fact that “he +is a man who has very firm opinions.” Naturally, the Senator +from Massachusetts thoroughly disagreed with those opinions, +notwithstanding their firmness. In fact, on one occasion, he had +come to blows with Lamont over his unorthodox views. The +best thing the Senate could do “would be to cite him for contempt +and let the court decide on the issues and the facts as we +have presented them here tonight.” The successor to Sam Adams, +John Hancock and James Otis had spoken.</p> + +<p>After Wayne Morse had nobly declaimed that “we, as Senators, +owe it to our committees to support them when they come to the +floor of the Senate and make a prima facie case in support of a +contempt citation,” Lehman made his final pitch. He didn’t +believe that the record justified Lamont’s citation. “I very much +fear,” he said, “that very serious results may ensue if we permit +the record to remain unchallenged and merely say that because +a committee brings in a resolution of citation for contempt, the +Senate should, in the natural course of events, vote in favor of +such resolution. I regard it as a very dangerous procedure.”</p> + +<p>But, despite a last ditch stand by Langer, Senator Thomas H. +Kuchel, who was presiding, finally put the matter to a vote. The +result was seventy-one yeas and three nays. Only Messrs. Chavez, +Langer and Lehman voted against the citation. On October 14th, +a Federal grand jury in New York, in Indictment No. C 145-216, +accused Lamont of refusing to answer the twenty-three questions +that McCarthy had asked him one year and three weeks before. +The next day, the defendant pleaded not guilty and was released +on $1000.00 bail. The gauntlet he had thrown down in the +same courtroom on a sunny fall day in 1953 had at last been +picked up.</p> + +<p>But the junior Senator from Wisconsin was hardly in a position +to gloat over his triumph. Three weeks before Lamont’s indictment, +the Watkins Committee had unanimously recommended +that the man from Appleton be censured by his colleagues. In its +report, the Select Committee, which had been handpicked by<span class="pagenum" id="Page_207">[Pg 207]</span> +Vice-President Nixon, stated that McCarthy had been guilty of +contempt of the Senate and had flagrantly abused General +Zwicker. It wasn’t until the beginning of December that the +upper house, by vote of 67 to 22, got around to “condemning” +rather than “censuring” him, mainly for his attack on the Select +Committee itself. Five days later—on the thirteenth anniversary +of the Japanese bombing of Pearl Harbor—“Tail Gunner Joe” +retaliated by apologizing to the American people for supporting +Eisenhower in 1952. A man guilty of such a “shrinking show of +weakness” just wasn’t fit to occupy rent-free government quarters +at 1600 Pennsylvania Avenue.</p> + +<p>On October 29, 1954, Wittenberg moved to dismiss the indictment +against his client on fifteen grounds, the most important of +which were his claims that no Congressional committee had the +constitutional right to interfere with a private citizen’s First +Amendment rights, and that the Permanent Subcommittee was +not authorized to conduct its investigation of Lamont. Four weeks +later, Wittenberg and J. Edward Lumbard, the United States +Attorney, took all day to argue their respective points before +District Judge Edward Weinfield. Then they sat back and waited +for him to make up his mind, a process that was to take two days +short of eight months.</p> + +<p>While Weinfield’s meditations were in progress, the <i>Emspak</i> +case, which Lehman had tried to use as a roadblock the preceding +August, was decided by the Supreme Court. In it and a companion +case—<i>Quinn v. United States</i>—Chief Justice Warren put a +brake on the powers of Congressional committees. “The power +to investigate,” he said, “... is also subject to recognized limitations. +It cannot be used to inquire into private affairs unrelated +to a valid legislative purpose.” With what many observers believed +was a judicial slap at the suddenly vulnerable gentleman +from Wisconsin, Warren let it be known that the Court would +accept nothing less than a rigid adherence to what he called +“minimal procedural standards” as far as legislative investigating +committees were concerned.</p> + +<p>On July 27, 1955, Weinfield announced his decision. He +agreed with Wittenberg that, since the indictment did not allege +that Lamont’s refusal to answer the twenty-three questions was +wilful, it was fatally defective. But he refused to rest his opinion<span class="pagenum" id="Page_208">[Pg 208]</span> +on the safe ground of improperly drawn charges. He found that +there was no evidence that the Permanent Subcommittee ever had +the authority to conduct an inquiry of Lamont—or of other witnesses +for that matter. Lastly, even assuming that McCarthy had +the power he claimed, the judge wasn’t convinced that the +Lamont interrogation was within the scope of that power or that +any of the questions were pertinent to an investigation of “Communist +Infiltration into the Army.” One week later, Senator +Langer, with the pious observation that he hoped that “we shall +stand fast in following our conscience and doing what is right, +in accordance with the truth, in any matters which may develop, +even though such a course may be unpopular,” obtained unanimous +consent for Weinfield’s opinion to be printed in the Congressional +Record.</p> + +<p>But there was still some life left in the prosecution. Paul W. +Williams, Lumbard’s successor, decided to appeal to the United +States Court of Appeals for the Second Circuit, a redoubtable +bench that sat three floors above Weinfield’s courtroom. The +arguments were much the same as they had been in the District +Court. The Government insisted that “wilfullness” was not an +element of Lamont’s crime and that it did not have to allege that +the McCarthy subcommittee was “duly empowered” to hold its +hearing. Wittenberg, on the other hand, was content to ride along +with Judge Weinfeld’s interpretation of the law.</p> + +<p>On August 14, 1956, the three judges on the appellate court +affirmed the dismissal on the somewhat narrow ground that the +Permanent Subcommittee on Investigations did not have the +authority to venture down the path along which its chairman +had led it. This, they reasoned, made the defendant’s First +Amendment objections moot. <i>Ad quod non fuit responsum.</i></p> + +<p>Williams made no effort to ask the Supreme Court to review +the adverse ruling, and, on September 13th, a consent decree was +entered, ending the case against Dr. Lamont. Just ten days short +of three years since he had refused to answer McCarthy’s twenty-three +questions, the taciturn witness was home free. At long last, +the rampage was officially over. As the <i>Hartford Times</i> editorialized, +“It is all couched in quiet judicial language, of course, but +what it really says is that Senator McCarthy and the Committee<span class="pagenum" id="Page_209">[Pg 209]</span> +were asking questions about things that were none of their +business.”</p> + +<p>When it became clear that the Government had no intention +of carrying the case any further, Lamont told the press that “I +am very glad that my court battle has resulted in hammering +another nail into the political coffin of Senator McCarthy.” But +the Lamont case had little to do with what Richard H. Rovere +has referred to as the “interior collapse” which had afflicted +Timothy and Bridget McCarthy’s fifth child after the Army +hearings. For the last two and a half years of his life, he was back +where he had been before the Wheeling revelations, a dispirited +jackstraw who began to spend more time in the hospital than he +did on the floor of the Senate.</p> + +<p>On April 28, 1957, he entered the Naval Medical Center at +Bethesda, Maryland, with what his wife described as a “knee +injury.” Later, his condition was diagnosed by the Navy doctors +as “peripheral neuritis.” At 6:02 on the evening of May 2nd, he +died of “acute hepatic infection,” which his enemies intimated +had been caused by an overabundance of bourbon. After a funeral +in the Senate chamber, he was flown back home to Appleton +where he was buried in the cemetery of St. Mary’s Church, a +rather pretty spot overlooking the meandering Fox River. The +golden years were over.</p> + +<p>But if Lamont, as an individual, had no more to do with +McCarthy’s overnight submergence than did Annie Lee Moss, +Irving Peress, Ralph Zwicker, Owen Lattimore, and the others +who had to endure his bad manners, churlishness and downright +lunacy, he was very much a part of the cumulative evidence +against the grand inquisitor. Too many scalps too soon might +have been Indian Charlie’s considered verdict. In the last analysis, +it was probably the conservatives who defeated McCarthy, but +it was only when they became frightened at what might be the +logical extension of his maltreatment of those who could hardly +be classed as toilers in their vineyards that they finally closed +ranks and smoked out the Big Bad Wolf from Shawano County. +American populism would have to find some way to get rid of +the Lamonts before it found another champion.</p> +<hr class="full"> + +<div class="chapter"> +<p><span class="pagenum" id="Page_210">[Pg 210]</span></p> + +<h2 class="nobreak" id="c12">10</h2> +</div> + +<p class="u large"><i>Five Against God</i></p> + +<p class="c xlarge">Steven I. Engel, Daniel Lichtenstein,<br> +Monroe Lerner, Lenore Lyons<br> +and Lawrence Roth</p> + +<p class="c xlarge"><i>versus</i></p> + +<p class="c xlarge">The Board of Union Free School<br> +District Number Nine,<br> +New Hyde Park, N. Y.</p> + + +<p>In the fall of 1951, the Board of Regents of the University +of the State of New York, which included members of the +three major religious faiths, unanimously adopted a twenty-two-word +non-denominational prayer for use in the public schools. +“Almighty God,” it read, “we acknowledge our dependence +upon Thee and we beg Thy blessings upon us, our parents, +our teachers and our Country.” In recommending the prayer +to local school districts, the thirteen Regents suggested that it +be recited in conjunction with the pledge of allegiance to the +flag. “We are convinced,” they said, “that this fundamental +belief and dependence of the American—always a religious—people +is the best security against the dangers of these difficult +days.”</p> + +<p>On July 8, 1958, the five-member Board of Education of the +Herricks Union Free School District in New Hyde Park, a Long +Island suburban community, some twenty miles due east of New +York City, by a vote of four to one, adopted a resolution “that +the Regents’ Prayer be said daily in our schools,” and directed<span class="pagenum" id="Page_211">[Pg 211]</span> +District Principal Lester Peck “that this be instituted as a daily +procedure to follow the Salute to the Flag.” The board’s action +was duly reported in <i>On Board</i>, its official bulletin, which was +distributed to all taxpayers in the district. Lawrence Roth, a +plastics manufacturer who had moved to Long Island from +New York City seven years earlier, was one of the issue’s most +interested readers.</p> + +<p>Roth, a slim, bespectacled man in his middle forties, whose +sons, Joseph and Daniel, attended two of the district’s seven +schools, was distressed by the board’s action. Although he had +been vaguely aware that there was some pressure to introduce +the Regents’ Prayer into the district’s schools, he also knew +that six previous attempts to do so had failed. The school +board’s sudden about-face caught him completely by surprise +but, being what his lawyers were later euphemistically to call a +“non-believer,” Roth was deeply disturbed by the prayer’s implications. +His two sons, who were ten and thirteen years old, +shared his religious views, and he was concerned with their +spiritual and psychological reaction to the new prayer that was +scheduled to start in September.</p> + +<p>Roth began to discuss the problem with a Catholic neighbor +who shared a seat with him on the commuter train to New +York City which left the Long Island Railroad’s Albertson +station in Rosalyn Heights at 7:03 each morning. It wasn’t long +before the plastics manufacturer realized that his knowledge +of the United States Constitution as it affected church-state +relationships was extremely limited. When his commuter friend +recommended that he contact the New York Civil Liberties +Union, Roth called that organization at once and spoke to +George Rundquist, its energetic director, who suggested that he +drop in for a chat at his earliest convenience.</p> + +<p>In early August, Roth, who was now more uneasy than ever +about the Regents’ Prayer, arrived at Rundquist’s ninth-floor +office on lower Fifth Avenue. Although the latter shared Roth’s +doubts about the prayer’s constitutionality, he pointed out that +any legal action to invalidate it would almost certainly subject +Roth and other parents who might join with him to strong +community pressures. “You will be hated and despised by most<span class="pagenum" id="Page_212">[Pg 212]</span> +of your neighbors,” Rundquist told his caller, “and your children +will have to face the scorn of many of their classmates. +But if you are willing to endure all of this, I’ll query our board +of directors.” Roth nodded his head. “I’m willing,” he replied +firmly.</p> + +<p>On September 4, Rundquist sent a memorandum to the +members of his board which detailed several items on the proposed +agenda for their regular monthly meeting five days later. +Item II read as follows:</p> + + +<div class="blockquot2"> + +<p class="c xlarge">Regents’ Prayer For Public Schools</p> + + +<p class="c xlarge">The Situation:</p> + +<p>On July 8 the School Board of the Herricks Union Free +School District (Nassau County) voted that the school day +shall be opened by recitation of the following prayer, recommended +by the Board of Regents in November, 1951: “Almighty +God, we acknowledge our dependence upon Thee, +and we beg Thy blessings upon us, our parents, our teachers +and our country.”</p> + +<p>At the time that the proposed prayer was released the +NYCLU, along with many civic organizations, expressed its +opposition to reciting this prayer in the public schools +through a public statement to the press and a letter to the +New York City Board of Education (December, 1951). We +also requested that the matter be considered at a public +meeting so that we might have an opportunity to present +our views on the matter.</p> + +<p>Because of public reaction to the Regents’ proposal, the +New York City Board of Education took no action until +January 15, 1953. At that time, it adopted a resolution that +students sing the fourth stanza of “America” each school +day, following the Pledge of Allegiance: ‘Our fathers’ God, +to Thee/Author of Liberty/To Thee I sing/Long may our +land be bright/With freedom’s holy light/Protect us by +Thy might/Great God, our King.</p> + + +<p class="c xlarge">The Question:</p> + +<p>Should the NYCLU adhere to the policy adopted in 1951? +If so, shall we implement our position by supporting a +group of residents in the Herricks School District who seek +to enjoin the School Board from proceeding with the recitation +of the prayer?</p> +</div> + +<p><span class="pagenum" id="Page_213">[Pg 213]</span></p> + +<p>The 1951 letter to which Mr. Rundquist referred had been +sent to Maximilian Moss, the President of the New York City +Board of Education. In it, John Paul Jones, then the Union’s +chairman, had asked for a public hearing before the Regents’ +Prayer was considered. “Our opposition,” Jones had written, “is +based in law upon the ruling of the United States Supreme +Court that neither a state nor the Federal government can set +up a church. Neither can pass laws which aid one religion, aid +all religions, or proffer one religion over another. The Union +believes that the proposed non-denominational prayer falls +within the ban of the First Amendment as thus interpreted by +the Supreme Court.”</p> + +<p>Jones was quick to point out that his organization had no +objection to programs devoted to spiritual teaching, but that, +since it was impossible to present such programs without interpretation, +they would inevitably lead to the expression of +sectarian points of view. “Our opposition to the proposal of +the Regents is not opposition to the teaching of religion,” he +concluded. “But it is the belief of the Union that the teaching +of our spiritual heritage, through prayer and special programs, +is the function of religious leaders and of parents and not the +proper function of public school teachers conducting classes in +a public school supported by public funds.”</p> + +<p>On September 9, Rundquist reviewed the situation for the +Union’s Board of Directors at their regular luncheon meeting +at a midtown hotel. While several of his listeners thought that +it would be wiser to work through the legislature rather than +the courts, the majority voted to assist Roth and his neighbors +with legal help. “It was moved and passed,” the minutes of +the meeting read, “that we re-affirm our 1951 position in opposition +to the prayer and, assuming that we have counsel willing +and with time to take over, that we intervene in the case.”</p> + +<p>As soon as Rundquist returned to his office, he put in a call +to William J. Butler, a former staff counsel of the American +Civil Liberties Union, who had specialized in corporation law +since entering private practice. Butler, a tall, stocky Harvard +graduate in his middle thirties, whose four grandparents had +all migrated to the United States from Ireland, and two of<span class="pagenum" id="Page_214">[Pg 214]</span> +whose uncles were priests, was married to the daughter of +Arthur Garfield Hays. An ensign in the merchant marine during +World War II, he was a sailing fan who missed no opportunity +to be on or near open water.</p> + +<p>Quickly, Rundquist explained that the Union had decided +to support Roth. Was Butler interested in handling such a case? +He was. “I consider this prayer ruling a dangerous threat to +freedom of religion” he told Rundquist. “That is why I will +take the case.” Ten minutes later, the lawyer was talking to +Roth. He had only one request to make of the plastics manufacturer. +He would like a group of plaintiffs who represented +a religious cross-section of the community and which contained +no agnostics or atheists. “I’ll do my best, Mr. Butler,” Roth +promised.</p> + +<p>As soon as he returned home that evening, Roth placed advertisements +in the <i>Roslyn News</i> and the <i>Williston Times</i>, +asking for people who were interested in challenging the Regents’ +Prayer to contact him. Within two weeks, he had assembled +the names of fifty Protestants and Jews as well as one +Catholic. But it wasn’t long before his list began to shrink “We +found,” Roth later revealed, “that there was going to be a +substantial amount of pressure and even vilification and hostility. +One couple were 100 per cent with us until they spoke to their +minister. Then they came to me and said, ‘We’re still with you +but our minister said this is a controversial matter and we can’t +join you.’” One of the project’s most enthusiastic supporters +quit when his employer warned him that “it was foolish to +get mixed up in controversial cases.” Finally, after two weeks +of intensive effort, Roth was left with only four willing parents +whose children would not graduate before the impending test +case wound its way through the courts.<a id="FNanchor_1" href="#Footnote_1" class="fnanchor">[1]</a></p> + +<div class="footnote"> + +<p><a id="Footnote_1" href="#FNanchor_1" class="label">[1]</a> Seven years earlier, a suit challenging the reading of verses from the +Bible in New Jersey public schools had been dismissed by the United +States Supreme Court because all of the plaintiffs’ children had graduated +before the case reached its docket.</p> + +</div> + +<p>In addition to Roth, the prospective plaintiffs whose names +were given to Butler early in October were composed of three +men and one woman. Steven I. Engel, a big, balding man in +his late thirties, whose seven-year-old son Michael attended the<span class="pagenum" id="Page_215">[Pg 215]</span> +Searington School, was the international sales manager for a +textile firm. A precise speaker, Engel was a Reform Jew. Forty-five-year-old +Daniel Lichtenstein, a manufacturer’s representative, +had three children in the district’s schools. Like Engel, he +was Jewish and had emigrated to Nassau County from Brooklyn. +A deeply tanned, stocky man with an outgoing personality, he +was a handball and bridge expert. Paradoxically, he had served +as campaign manager for Mary Harte, the school trustee who +had moved the adoption of the Regents’ Prayer, when she first +ran for the Board of Education.</p> + +<p>Monroe Lerner, an account executive in a Wall Street firm, +was an analytical man who was not one to make any hasty +decisions. Tall and balding, he had one child, seven-year-old +Cynthia, who attended the Searington School. He was a member +of the Ethical Culture Society. Lenore Lyons, whose husband +did not share her antipathy toward the Regents’ Prayer, was +a tall, dark-haired woman with three children of school age. +Easily the most attractive member of Roth’s little band, Mrs. +Lyons was the Religious Education Chairman at the Unitarian +Church she and her family attended.</p> + +<p>Before resorting to the courts, the prospective plaintiffs were +required by law to submit a formal request to the school board +asking it to rescind its July resolution adopting the Regents’ +Prayer. On December 4, a letter signed by all five parents was +mailed to the school district’s Administration Building in New +Hyde Park. “We, and each of us,” it stated bluntly, “hereby +demand that you discontinue, or cause to be discontinued, the +practice instituted for the first time at the beginning of the +current school year of having a prayer said daily following the +Salute to the Flag in all the schools of the district, and particularly +the schools which our children attend.” The prayer, +the letter continued, was “a violation of the Constitution of the +United States and of the State of New York.”</p> + +<p>On January 6, 1959, Florence Alnwick, the clerk of the Board +of Education, wrote to Butler. “As you are probably aware,” +she said, “the Education Law confers certain authority upon +the Board of Education and pursuant thereto the Board of Education +on July 8, 1958, adopted a resolution authorizing and<span class="pagenum" id="Page_216">[Pg 216]</span> +directing the daily use of the Regents’ recommended prayer, +to which you refer, in the schools within the district.” Accordingly, +she had been directed by the Board of Education to +advise the lawyer that no further action on the subject of the +prayer was contemplated.</p> + +<p>While he had been waiting for the Board’s reply, Butler had +not been idle. Anticipating a negative response, he had began +preparing a petition to the Nassau County Supreme Court +shortly after his five plaintiffs had been selected. By year’s end, +he had, with the aid of his partner, Stanley Geller, whose resemblance +to Gregory Peck was startling, finished his labors +and, two days before receipt of the board’s letter, the petition +was verified by Roth and his fellow plaintiffs. Addressed to +William J. Vitale, Jr., Philip J. Fried, Mary Harte, Anne Birch +and Richard Saunders, the members of the Board of Education, +it asked the court to direct them “to discontinue or cause to be +discontinued in the schools of said district the saying of the +prayer designated as the Regents’ Prayer.”</p> + +<p>In the main, the plaintiffs claimed that “the saying of said +prayer and the manner and setting in which it is said,” violated +both the Federal and State Constitutions. According to them, +District Superintendent Peck had established a daily ritual for +saying the Regents Prayer. “Each morning at the commencement +of each day in each school following the salute to the +Flag,” their petition read, “the said prayer is said aloud. The +prayer is led by the teacher or by a student selected by the +teacher with the other students joining therein. The prayer +is said with the hands clasped together in front of the body, +fingers extended and pointed upwards in the manner of a +suppliant. During the saying of the prayer, no student is permitted +to leave the classroom.”</p> + +<p>On February 18, the school board served its answering papers +on Butler. Represented by handsome, dark-haired Bertram B. +Daiker of the Port Washington law firm of Gunn, Neier & +Daiker, it denied that the saying of the Regents’ Prayer violated +either the United States or the New York Constitutions. Moreover, +it claimed that, not only did the petitioners lack the power +“to interfere with the saying of the prayer by the children of<span class="pagenum" id="Page_217">[Pg 217]</span> +others under the color of judicial process or otherwise,” but +that their lawsuit, if successful, would be tantamount to an +interference with freedom of religion.</p> + +<p>An affidavit by William J. Vitale, Jr., the dapper president +of the school board, accompanied the latter’s answer. Vitale +pointed out that, since the beginning of the school year, only +one parent had requested that his child be excused from the +saying of the prayer. In addition, no child had asked to leave +the room during the prayer. As for the petitioners’ claim that +children had been forced or shown how to pray, this was +simply not the case. “On the contrary,” he said, “the principals +and teachers in the School District have been directed and are +following the directions that under no circumstances shall a +pupil in any way be made or encouraged to join in the prayer +and no teacher has instructed the pupils how they are to hold +their hands or otherwise conduct themselves during the saying +of the prayer.”</p> + +<p>Both as a school board member and a father, Vitale felt +that the prayer was beneficial. “I am fully conscious of the need +for instilling in the youth of today some recognition of the +moral and spiritual values which are part of the heritage of +this country and of this state,” he argued. “The brief moment +of prayer, by those who join in it at the opening of school each +day, cannot help but remind those children, in the words of +our State Constitution, that by acknowledging their dependence +on God, they may ‘secure’ the blessings of Freedom granted by +Almighty God.”</p> + +<p>With the issue clearly joined, interest in the pending case +began to develop rapidly. On February 24, sixteen residents of +the school district applied for the right to intervene in support +of the Regents’ Prayer. Speaking through their attorney, tall +and articulate Porter R. Chandler, a former president of the +Guild of Catholic Lawyers, they maintained that they had sufficient +interest in the retention of the prayer to be allowed to +participate. Although Butler objected strenuously to their motion, +it was swiftly granted by Judge Bernard S. Meyer. The +intervenors’ participation, however, was limited to the merits of +the constitutional questions raised by the petitioners.</p> + +<p><span class="pagenum" id="Page_218">[Pg 218]</span></p> + +<p>While they were waiting for their case to be argued, the +plaintiffs had good cause to recall Rundquist’s warning to Roth +in September. From the time their suit became known, all five +were harrassed by threatening letters and telephone calls. One +caller told Roth that an organization known as the Union +Street Benevolent Society was preparing to bomb his home. +On many nights, the plastics manufacturer was forced to take +his telephone receiver off the hook in order to sleep. “We’re +going to blow up your car,” one gruff voice said. “Keep your +eyes on your children,” another warned.</p> + +<p>On February 24, the contentions of all the parties were +argued before Judge Meyer in the spacious county courthouse +on Mineola’s Old Country Road. It took the tall, youthful-appearing +judge exactly six months to reach his decision. In a +sixty-six-page opinion, he came to the conclusion the school +board’s resolution did not violate the federal or state constitutions. +In particular, he stressed that “the recognition of prayer +is an integral part of our national heritage [and] that prayer +in the schools is permissible, not as a means of teaching ‘spiritual +values,’ but because ... at the time of the adoption of the First +and Fourteenth Amendments this was the accepted practice.”</p> + +<p>However, he did find fault with the board’s resolution +of July 8, 1958, which directed “that the Regents’ prayer be +said daily in our schools.” Because the resolution was couched +in what he called “mandatory terms,” Meyer ordered Vitale and +his fellow board members to modify it so as “to establish a +procedure whereby the parents of each child are advised of the +adoption of the resolution calling for the saying of prayer, of +the wording of the prayer and of the procedure to be followed +when it is said and requested to indicate whether the child +shall or shall not participate in the exercise.” The case was +“remanded to the Board of Education for further proceedings +not inconsistent with this opinion.”</p> + +<p>At the end of his long opinion, the judge thanked all the +lawyers involved “for the excellent presentation, not only in +oral argument, but in the original and supplemental briefs.” +In closing, he referred to an 1837 opinion of the Superintendent +of Common Schools of the State of New York. “Written one<span class="pagenum" id="Page_219">[Pg 219]</span> +hundred and twenty years ago,” he said, “the following statement, +in the Court’s view, most completely conforms to the +requirements of both constitutional law and reason: ‘The simple +rule, so to exercise your own rights as not to infringe on those +of others, will preserve equal justice among all, promote harmony, +and insure success to our schools.’”</p> + +<p>Ten days after Judge Meyer’s decision, the school board took +steps to comply with the latter part of his order. In a brief +regulation, teachers were directed to refrain from commenting +“on participation or non-participation in the exercise.” In addition, +children whose parents had submitted written requests to +the principals of their schools were “to be excused from participating +or from the room during the prayer exercise.” Five +days later, each parent in the district received a letter from +District Principal Peck. After setting forth the prayer, Mr. Peck +informed his addressees that “any parent or guardian who does +not wish his child to say the prayer is requested to write a +letter to the principal of the school his child attends, indicating +whether he wants his child excused from the room or to remain +silent while the prayer is being said.”</p> + +<p>In October, Butler appealed to the Appellate Division of the +Supreme Court. During the year that intervened before the +case was finally argued before the five-judge court, the school +board asked Judge Meyer to dismiss the proceeding on the +merits. According to Philip J. Fried, who, on July 1, had succeeded +Vitale as the board’s president, Peck’s letter to the +district’s parents fully complied with Meyer’s decision and there +was no longer any reason for delaying the inevitable. Meyer +bowed to Fried’s inescapable logic. On March 17, 1961, he +stated: “It appearing to the court that respondent has complied +with the directions contained in the opinion of this court in +this proceeding dated August 24, 1959, it is ordered that this +proceeding be and is dismissed on the merits.”</p> + +<p>In opposing the board’s motion, Roth <i>et al</i> claimed that +Peck’s letter did not cure the fundamental defects involved in +the saying of the Regents’ Prayer. “Petitioners maintain,” they +said, “that the saying of the so-called ‘Regents’ Prayer’ in the +schools ... at the direction of and under the auspices of the<span class="pagenum" id="Page_220">[Pg 220]</span> +Board of Education, violated the Constitutions of both this +State and the United States. They maintain that the matter of +the prayer is not within the cognizance of the Board and should +not have been remanded to respondents for further action. They +do not believe, therefore, that any actions taken by respondents +on remand could have cured the fatal defects in the saying of +the Prayer. Indeed, petitioners submit that any actions taken +by respondents since remand constitute an additional violation +or additional violations of the State and Federal Constitutions.”</p> + +<p>On October 17, the Appellate Division refused to disturb +Judge Meyer’s ruling. Four of the judges agreed fully with +Meyer’s opinion. Associate Justice George J. Beldock, however, +although in favor of retaining the school prayer, minced no +words in declaring that he did not subscribe to the lower court’s +reasons for denying the petition. In particular, he found fault +with Meyer’s rationale that he was sustaining the prayer because +it was “the accepted practice” before the adoption of the federal +constitution. As far as he was concerned, the prayer was not +religious training and, therefore, was not prohibited by the +Constitution. This, he concluded, is what Judge Meyer should +have stated in no uncertain terms.</p> + +<p>On May 25, 1961, Butler, Chandler and Daiker journeyed to +Albany to appear before the Court of Appeals, New York’s +highest tribunal. There, together with attorneys for the Board +of Regents and the American Jewish Committee, they argued +the pros and cons of the school prayer issue. Six weeks later, +Chief Judge Charles S. Desmond, speaking for himself and four +of his colleagues, affirmed Meyer’s decision. In a brief opinion, +he stated that a belief in God “has been maintained without +break from the days of the Founding Fathers to the day of the +inauguration of President Kennedy.”</p> + +<p>He insisted that the Regents’ Prayer did not in the least +infringe on the rights of minorities. “Belief in a Supreme Being +is as essential and permanent a feature of the American governmental +system,” he emphasized, “as is freedom of worship, +equality under the law and due process of law. Like them it is +an American absolute, an application of the natural beliefs on +which the Republic was founded and which in turn presuppose<span class="pagenum" id="Page_221">[Pg 221]</span> +an Omnipotent Being.” Although he was uncertain as to the +eventual success of the prayer service, he heartily approved of +the motives of both the Regents and the Herricks School Board.</p> + +<p>But, for the first time since the case had started its long, +tortuous climb up the judicial ladder, there was a dissent. Two +of the seven judges, Marvin R. Dye and Stanley H. Fuld, agreed +with Butler’s contention that the prayer was unconstitutional. +“In sponsoring a religious program,” they said, “the State enters +a field which it has been thought best to leave to the church +alone. However salutary the underlying purpose of the requirement +may be, it nonetheless gives to the State a direct supervision +and influence that overstep the line making the division +between church and state and cannot help but lead to a gradual +erosion of the mighty bulwark erected by the First Amendment.” +For this reason, Dye and Fuld felt that the school board should +have been ordered to discontinue the use of the Regents’ Prayer.</p> + +<p>The way was now clear for Butler to ask the United States +Supreme Court to consider the case. On October 4, 1961, he +filed a petition for a <i>writ of certiorari</i>, a necessary prerequisite +to an appeal. Two months later, in a brief order, the nine +justices granted the writ. Three years, two months and twenty-five +days after the board of the New York Civil Liberties Union +had voted to support Roth, the case, which was now officially +known as No. 468 of the high court’s October Term, 1961, had +finally reached Washington.</p> + +<p>Oral arguments in the Supreme Court’s stately first-floor +courtroom took place on April 3, 1962. In addition to the points +raised by Butler, Daiker and Chandler, the attorneys general +of seventeen other states joined Roger Foley, Nevada’s chief +legal officer, in a brief which urged Chief Justice Earl Warren +and his eight colleagues to see to it that “we shall ever remain +a religious people” by sustaining the Regents’ Prayer. The +Synagogue Council, the American Jewish Committee, the Anti-Defamation +League of B’nai B’rith and the American Ethical +Union joined Butler in asking for a reversal of the lower court +decisions.</p> + +<p>The latter commenced his argument by reciting the Regents’ +Prayer. “What’s wrong with that?” interrupted Justice Harlan.<span class="pagenum" id="Page_222">[Pg 222]</span> +“There’s nothing wrong with that,” Butler replied. “We have +no objection to the prayer as such. I have come before this +court to defend, not attack religion. Our objection is to the use +of public facilities for religious purposes.”</p> + +<p>Frankfurter, who was destined to be disabled by a paralyzing +stroke three days later, broke in. “I want you to be perfectly +candid with me, Mr. Butler,” he piped. “Do you think the +public school system should be secularized?” The lawyer thought +for a moment. “Yes, I do,” he responded, “because, on balance, +the threat to religious freedom is so great that I would rather +have secularization than the state in the business of religion.”</p> + +<p>Justice Brennan had one question. Did Mr. Butler think +that there was any distinction between teaching religion and +teaching about religion? He did. “The first is objectionable,” +he said. “The second is the duty of the state.” Potter Stewart +asked whether there was any difference between the prayer and +the Salute to the Flag. Butler didn’t hesitate. “There certainly +is,” he replied. “The prayer is a religious utterance and the +salute a political one.”</p> + +<p>During Daiker’s presentation, Warren wanted to know whether +the school board’s attorney considered the Regents’ Prayer a +religious exercise. “No, I do not,” the lawyer replied. “It is +merely an expression of the spiritual heritage of our nation, +that the Founding Fathers believed in God.” The Chief Justice +smiled. “I would expect you to take that position,” he commented +wryly. Black had one question for Chandler. Would +he have any objection to the prayer had it been a Mohammedan +one? “I would, your Honor,” he answered. “A Mohammedan +prayer does not reflect the spiritual heritage of this country.”</p> + +<p>Monday, June 25, 1962, was the last decision day before the +Supreme Court adjourned for the summer. It also marked the +end of Associate Justice Hugo L. Black’s twenty-fifth consecutive +term of court. In a brief ceremony before attending to his +crowded calendar, Warren commended Black for his long service. +“Of the ninety-seven justices who have been appointed to the +court,” he observed, “only sixteen have served as long as Mr. +Justice Black and none with greater fidelity or singleness of +purpose. His unflagging devotion has been to the Constitution<span class="pagenum" id="Page_223">[Pg 223]</span> +of the United States.” Black, who apparently had not been informed +in advance of the intended tribute, slumped in his seat +as the Chief Justice spoke.</p> + +<p>The prayer ruling was the first of seventeen to be announced +by the court. Authored by Black, the fifteen-page majority +opinion came to the conclusion that New York’s use of the +public school system to encourage recitation of the Regents’ +Prayer was “wholly inconsistent” with the First Amendment’s +stricture against any law “respecting an establishment of religion.” +“The constitutional prohibition against law respecting +an establishment of religion,” Black wrote, “must at least mean +that in this country it is no part of the business of government +to compose official prayers for any group of the American people +to recite as a part of a religious program carried on by government.” +Accordingly, the judgment of the Court of Appeals was +reversed by a vote of six to one.<a id="FNanchor_2" href="#Footnote_2" class="fnanchor">[2]</a></p> + +<div class="footnote"> + +<p><a id="Footnote_2" href="#FNanchor_2" class="label">[2]</a> Justices Frankfurter and White took no part in the decision, the former +being ill and the latter having just been named to the court by President +Kennedy.</p> + +</div> + +<p>His opinion finished, Black looked up from the papers in +front of him. “The prayer of each man from his soul,” he said +in a low voice, “must be his and his alone. That is the genius +of the First Amendment. If there is any one thing in the First +Amendment, it is that the right of the people to pray in their +own way is not to be controlled by the election returns.”</p> + +<p>As the reporters rushed for the telephones in their basement +press room, Justice William O. Douglas began reading portions +of a concurring opinion which, while wholly in favor of the +case’s result, went much further than Black. As Douglas saw it, +the Constitution prohibited any form of “religion-financing” +by government. This would include chaplains in the armed +forces, compulsory chapel at West Point and Annapolis, federal +or state aid to parochial schools, the use of the Bible to administer +oaths and the inclusion of God in the Pledge of Allegiance. +“Our system at the federal and state levels is presently +honeycombed with such financing,” he said. “Nevertheless, I +think it is an unconstitutional undertaking whatever form it +takes.”</p> + +<p>He wanted it clearly understood that his reasoning did not<span class="pagenum" id="Page_224">[Pg 224]</span> +stem from any hostility toward religion. “The First Amendment +leaves the government in a position not of hostility to religion +but of neutrality,” he explained. “The philosophy is that the +atheist or agnostic—the non-believer—is entitled to go his own +way. The philosophy is that if government interferes in matters +spiritual, it will be a decisive force. The First Amendment +teaches that a government neutral in the field of religion better +serves all religious interests.”</p> + +<p>Mr. Justice Stewart was the only member of the court to +voice a dissent. “I think the Court has misapplied a great +constitutional principle,” he declared. “I cannot see how an +official religion is established by letting those who want to say +a prayer say it. On the contrary, I think that to deny the wish +of these school children to join in reciting this prayer is to +deny them the opportunity of sharing in the spiritual heritage +of our nation.” His brief opinion ended with the observation +that the patriots who signed the Declaration of Independence +did so with a self-styled “reliance on the Protection of Divine +Providence.”</p> + +<p>The majority decision caused an immediate reaction. George +Andrews, an outraged Alabama Congressman, complained that +“they put the Negroes in the schools and now they’ve driven +God out.” New York’s Governor Nelson Rockefeller, who apparently +hadn’t read or understood Black’s opinion, hoped that +“adjustments” could be worked out that would make the +prayer acceptable to the Supreme Court. Francis Cardinal +Spellman was “shocked and frightened that the Supreme Court +has declared unconstitutional a simple and voluntary declaration +of belief in God by public school children.” On the west +coast, James Francis Cardinal McIntyre, the Archbishop of Los +Angeles, called the decision “positively shocking and scandalizing +to one of American blood and principle.”</p> + +<p>Evangelist Billy Graham was “shocked and disappointed” by +what he called “another step toward secularism in the United +States.” Right Reverend James A. Pike, Bishop of the Protestant +Episcopal Diocese of California and a lawyer himself, said that +he was surprised to see that the Warren Court had extended +“to an obviously non-sectarian prayer the prohibition against<span class="pagenum" id="Page_225">[Pg 225]</span> +‘the establishment of religion,’ clearly intended by our forefathers +to bar official status to any particular denomination or +sect.” Representative John Bell Williams of Mississippi called +the decision part of “a deliberate and carefully planned conspiracy +to substitute materialism for spiritual values.” To Senator +Herman E. Talmadge of Georgia, it was “an outrageous +edict which has numbed the conscience and shocked the highest +sensibilities of the nation.” The Alabama legislature quickly +passed a resolution terming it “diabolical.”</p> + +<p>Herbert Hoover and many other prominent Americans demanded +an immediate amendment to the Constitution nullifying +the prohibition against the prayer. “The Congress should +at once submit an amendment which establishes the right to +religious devotion in all governmental agencies,” the former +President said angrily. Representative Roy A. Taylor of North +Carolina, a Baptist deacon, complied at once. His proposed +amendment was as definite as it was brief. “Notwithstanding +the First and Fourteenth Amendments to the Constitution of +the United States,” it read, “prayers may be offered and the +Bible may be read in connection with the program of any +public school in the United States.” Senator James O. Eastland +announced that the Senate Judiciary Committee would meet at +once to consider proposed amendments.</p> + +<p>But the decision was not without its supporters. Dr. Sterling +M. McMarrin, United States Commissioner of Education, felt +that the outlawing of the prayer was no loss to religion. “Prayer +that is essentially a ceremonial classroom function,” he explained, +“has not much religious value.” Dr. Edgar Fuller, Executive +Secretary of the Council of Chief State School Officers, stated +that, “in my judgment, the Supreme Court is right.” Senator +Jacob K. Javits of New York reminded parents that there was +“plenty of opportunity to inculcate religious faith in the children +at home and at weekend religious schools.” Rev. Dr. Dana +McLean Greeley, president of the Unitarian Universalist Association, +said that “the Supreme Court has acted clearly in support +of the principle of the separation of church and state as +guaranteed by the First Amendment of the Constitution.”</p> + +<p>In Chicago, Dean M. Kelly, director of the National Council<span class="pagenum" id="Page_226">[Pg 226]</span> +of Churches’ Department of Religious Liberty, was enthusiastic +about the court’s action. “Many Christians,” he claimed, “will +welcome this decision. It protects the religious rights of minorities +and guards against the development of ‘public school religions’ +which is neither Christianity nor Judaism, but something +less than either.” At his press conference on June 27, +President Kennedy said that he hoped that the decision would +come as “a welcome reminder to every American family that +we can pray a good deal more at home, we can attend our +churches with a good deal more fidelity, and we can make the +true meaning of prayer much more important in the lives of +all of our children.”</p> + +<p>In their own area, the victorious plaintiffs were disconcerted +by the violence of the attack on the decision. Representative +Frank J. Backer, a Nassau County Congressman, called it “the +most tragic in the history of the United States.” William A. +Bruno, a trustee of the nearby Hicksville Board of Education, +said that his district would retain the prayer. “Let’s see what +the Supreme Court will do about that!” he chortled. He told a +reporter for The New York Times that the ruling proved that +Robert Welch, the founder of the Birch Society, “had the right +idea in asking for the impeachment of the Supreme Court.” +Robert S. Hoshino, President of the mammoth Levittown School +District, called the decision a victory for Communism. “Levittown +will not vote out the Regents’ Prayer,” he prophesized. +However, Dr. James E. Allen, Jr., the State’s Commissioner of +Education, reminded recalcitrant local school boards that they +would “have to enforce the Supreme Court decision immediately.”</p> + +<p>Although they were bitterly disappointed by the case’s outcome, +both Vitale and Daiker indicated that the Herricks School +Board would not disobey the Supreme Court’s mandate. The +former felt certain “that any of the people involved are prepared +to adhere to the decision of the Court.” According to the +lawyer, “the decision must be complied with.” Each man stressed +the fact that no child had been forced to recite the prayer +against its will. “At no time did we ever insist that a child +should say it,” Vitale declared. “We set up procedures so no<span class="pagenum" id="Page_227">[Pg 227]</span> +one would be compelled to say it and we felt sincerely we were +not infringing on anyone’s constitutional rights.”</p> + +<p>The plaintiffs were quietly jubilant over their triumph which +the New York Civil Liberties Union called a “milestone” in +the separation of church and state. Lenore Lyons said that the +decision represented “both liberal and conservative thinking of +the Supreme Court.” Engel, Lerner and Lichtenstein were “extremely +happy.” Lawrence Roth, who referred to himself as “a +very religious person but not a churchgoer,” viewed the case’s +result as an indication of his conviction that “religious training +is the prerogative of parents and not the duty of the state.” +Butler claimed that the decision had helped rather than hindered +religion. “In this country, with its many different faiths, +religion has flourished because we have steadfastly adhered to +the principle of separation of church and state,” he said. “The +Supreme Court has today reaffirmed that principle.”</p> + +<p>With the case over, Roth and his co-plaintiffs revealed that, +since 1959, they had been subjected to a variety of community +pressures, ranging from dirty looks to abusive telephone calls. +In one house, the latter had become so vituperative that the +children were forbidden to answer the phone. Many of the +anonymous letters and postcards that had arrived regularly at +each of the five homes were obscene, anti-Semitic or both. +“Toward the end, it got so bad,” Roth said, “that my wife or +I made it a point of getting the mail before the children could +see it.”</p> + +<p>Roth’s oldest son, Danny, who was now sixteen, said that +his father’s leadership of the anti-prayer fight had made it very +difficult for him at school. “There were arguments and pushing +and name-calling,” he recalled. “In the halls, kids would yell +out: ‘You’re a Commie’ or ‘Go home to Russia.’ At times I +thought it might be easier for me if my father stopped what +he was doing. But I never wanted him to. I believe very strongly +that what he was doing was right. I’m very proud of my father, +you know.”</p> + +<p>The court’s decision heightened the bitter campaign against +the plaintiffs. Not only did the number of vituperative telephone +calls, letters and post cards increase, but Roth’s house<span class="pagenum" id="Page_228">[Pg 228]</span> +was picketed by nine members of the newly formed Nationalist +Party bearing signs which read: FBI, INVESTIGATE MR. +ROTH! and IMPEACH THE PRO-RED SUPREME COURT. +“The harassing phone calls got so bad Tuesday night,” Roth +said, “that we finally had to take the receiver off the hook +again. They were coming in at the rate of two calls a minute.” +The anonymous callers shouted such threats as “Watch out for +your child.... We’re going to blow up your car.... Don’t +leave your house—something is going to happen to it.... We’ll +get you.” One postcard was typical. “To the five Long Island +parents,” it began. “You damn Jews with your liberal viewpoint +are ruining the country.”</p> + +<p>In addition, at least one candidate in the New York primary +campaigns that began shortly after the decision, in an openly +anti-Semitic appeal to Roman Catholic voters in Queens County’s +Eleventh Assembly District, reminded them that the school +prayer had been invalidated by persons with Jewish names. +“These are the names you should know,” began a leaflet distributed +by James E. McGinniss, an Independent Democrat, +“Stephen Engel, Daniel Lichtenstein, Monroe Lerner, Lenore +Lyons and Lawrence Roth. These people brought the legal +action which resulted in the banning of the ‘prayer’ in our +public schools.” Mr. McGinniss then urged registered Democrats +to vote for him “if you want a public official who will +remember the ‘Presence of God’ and who will sponsor and +work for laws which will permit us to live and raise our children +as God-fearing citizens.”<a id="FNanchor_3" href="#Footnote_3" class="fnanchor">[3]</a></p> + +<div class="footnote"> + +<p><a id="Footnote_3" href="#FNanchor_3" class="label">[3]</a> Mr. McGinniss was soundly defeated in the primary, running a poor +third to winner Hyman J. Greenberg.</p> + +</div> + +<p>A week before the distribution of McGinniss’ fliers, the +Jesuit magazine <i>America</i> chimed in with a warning “to our +Jewish friends.” In an outspoken editorial, the weekly reminded +American Jewry that, although it could not be held fully responsible +for the school prayer decision, its leaders would be +well advised to curb the activities of certain Jewish agencies +which, the magazine claimed, hoped to secularize public life +from top to bottom. “It would be most unfortunate,” the editorial +concluded, “if the entire Jewish community were to be +blamed for the unrelenting pressure tactics of a small but overly<span class="pagenum" id="Page_229">[Pg 229]</span> +vocal segment within it. When court victories produce only a +harvest of fear and distrust, will it all have been worthwhile?”</p> + +<p>The Regents’ Prayer is no longer recited in the Herricks +school system—or, for that matter, anywhere else in New York +State. But it will be a long time before the five people whose +efforts led to its invalidation will be permitted to forget that +they ran counter to the strong feelings of their community. +“Mr. Rundquist warned me of what we could expect,” Roth +acknowledged wryly, “but we never realized how bitter the +attacks on us and our families would be. But none of us are +sorry that we became involved in the case. We all feel that we +have had a small part in clarifying and strengthening a vital +constitutional safeguard.<a id="FNanchor_4" href="#Footnote_4" class="fnanchor">[4]</a> For this, we were more than willing +to endure whatever came our way.”</p> + +<div class="footnote"> + +<p><a id="Footnote_4" href="#FNanchor_4" class="label">[4]</a> More clarification is in the offing. On October 8, 1962, the Supreme +Court agreed to pass on the constitutionality of another type of school +prayer. It will shortly hear argument on the validity of a regulation of +the Baltimore (Md.) School Board and a Pennsylvania statute, both of +which require the reading of verses from the Bible at the opening of +each school day.</p> + +</div> +<hr class="full"> + +<div class="chapter"> +<p><span class="pagenum" id="Page_230">[Pg 230]</span></p> + +<h2 class="nobreak" id="c13">Bibliography</h2> +</div> + +<p>In addition to available trial transcripts, records on appeal, and magazine +and newspaper articles, the following books were consulted:</p> + +<div class="blockquot2"> + +<p>A Generation on Trial, by Alistair Cooke. New York: Alfred A. Knopf, 1950</p> + +<p>After Twelve Years, by Michael A. Musmanno. New York: Alfred A. Knopf, +1939</p> + +<p>Attorney for the Damned. Edited by Arthur Weinberg. New York: Simon +& Schuster, 1957</p> + +<p>Clarence Darrow for the Defense, by Irving Stone. Garden City, New York: +Doubleday & Company, Inc., 1941</p> + +<p>Commonwealth vs. Sacco and Vanzetti, by Robert Perry Weeks. Englewood +Cliffs, New Jersey: Prentice-Hall, Inc., 1958</p> + +<p>Courtroom, by Quentin Reynolds. New York: Farrar, Straus & Company, 1950</p> + +<p>Crime, Its Cause and Treatment, by Clarence S. Darrow. New York: Thomas +Y. Crowell, 1922</p> + +<p>Fair Trial, by Richard B. Morris. New York: Alfred A. Knopf, 1952</p> + +<p>In the Court of Public Opinion, by Alger Hiss. New York: Alfred A. Knopf, +1957</p> + +<p>Letters of Sacco and Vanzetti. Edited by Marion Denman Frankfurter and +Gardner Jackson. New York: The Vanguard Press, 1950</p> + +<p>McCarthy and His Enemies, by William F. Buckley, Jr. and L. Brent Bozell. +Chicago: H. Regnery Company, 1954</p> + +<p>McCarthyism, The Fight for America, by Joseph R. McCarthy. New York: +Devin-Adair Company, 1952</p> + +<p>Myths After Lincoln, by Lloyd Lewis. New York: Harcourt Brace & Company, +1929</p> + +<p>Ordeal by Slander, by Owen Lattimore. Boston: Little, Brown & Company, +1950</p> + +<p>Origin of Species, by Charles R. Darwin. Philadelphia: University of Pennsylvania +Press, 1958</p> + +<p>Reverdy Johnson, by Bernard Christian Steiner. Baltimore: Norman, Remington +Company, 1914</p> + +<p>Sacco-Vanzetti—The Murder & The Myth, by Robert H. Montgomery. Devin-Adair +Company, 1960 New York</p> + +<p>Scottsboro Boy, by Haywood Patterson. New York: Doubleday & Company, +Inc., 1950</p> + +<p>Seeds of Treason, by Ralph de Toledano and Victor Lasky. New York: +Funk & Wagnalls Co., Inc., 1950</p> + +<p>Senator Joe McCarthy, by Richard H. Rovere. New York: Harcourt, Brace +& Company, 1959</p> + +<p>Six Days or Forever, by Ray Ginger. Boston: Beacon Press, 1958</p> + +<p>Spies, Dupes and Diplomats, by Ralph de Toledano. New York: Duell, +Sloan & Pearce, 1952</p> + +<p>The Assassination of President Lincoln and the Trial of the Conspirators. +The courtroom testimony as originally compiled by Benn Pitman. New +York: Funk & Wagnalls Co., Inc., 1954</p> + +<p>The Case for Courage, by William M. Kunstler. New York: William Morrow +& Co., Inc., 1962</p> + +<p>The Case for Mrs. Surratt, by Helen Jones Campbell. New York: G. P. +Putnam’s Sons, 1943</p> +<p><span class="pagenum" id="Page_231">[Pg 231]</span></p> +<p>The Case of Sacco and Vanzetti, by Felix Frankfurter. Boston: Little, +Brown & Company, 1927</p> + +<p>The Case of Thomas J. Mooney and Warren K. Billings, by Henry T. +Hunt. New York: National Mooney-Billings Committee, 1929</p> + +<p>The Judgment of Julius and Ethel Rosenberg, by John Wexley. New York: +Cameron & Kahn, 1955</p> + +<p>The Judicial Murder of Mary E. Surratt, by David Miller De Witt. Baltimore: +J. Murphy Company, 1895</p> + +<p>The Lamont Case. Edited by Philip Wittenberg. New York: Horizon Press, +1953</p> + +<p>The Legacy of Holmes and Brandeis, by Samuel J. Konefsky. New York: +The Macmillan Company, 1956</p> + +<p>The Legacy of Sacco and Vanzetti, by G. Louis Joughin and Edmund M. +Morgan. New York: Harcourt, Brace & Company, 1948</p> + +<p>The Life & Death of Sacco and Vanzetti, by Eugene Lyons. New York: +International Publishers, 1927</p> + +<p>The Rosenberg Case: Fact and Fiction, by Solomon Andhil Fineberg. New +York: Oceana Publications, Inc., 1953</p> + +<p>The Sacco-Vanzetti Case, by Osmond K. Fraenkel. New York: Alfred A. +Knopf, 1931</p> + +<p>The Scottsboro Case. New York: The Scottsboro Defense Committee, 1936</p> + +<p>The Story of my Life, by Clarence Darrow. New York: Charles Scribner’s +Sons, 1932</p> + +<p>The Strange Case of Alger Hiss, by Earl Jowitt. Garden City, New York: +Doubleday & Company, Inc., 1953</p> + +<p>The Untried Case, by Herbert E. Ehrmann. New York: The Vanguard +Press, 1933</p> + +<p>The World’s Most Famous Court Trial. Cincinnati: National Book Company, +1925</p> + +<p>They Shall be Free, by Allen Knight Chalmers. Garden City, New York: +Doubleday & Company, Inc., 1951</p> + +<p>Thirteen Days, by Jeanette Augustus Marks. New York: A. C. Boni, 1929</p> + +<p>Treason, by Nathaniel Weyl. Washington, D. C.: Public Affairs Press, 1950</p> + +<p>Trial by Prejudice, by Arthur Garfield Hays. New York: Covici Friede, 1933</p> + +<p>Trial by Television, by Michael W. Straight. Boston: Beacon Press, 1954</p> + +<p>Was Justice Done?, by Malcolm P. Sharp. New York: Monthly Review Press, +1956</p> + +<p>What Happened in the Mooney Case, by Ernest J. Hopkins. New York: +Brewer, Warren & Putnam, 1932</p> + +<p>Witness, by Whittaker Chambers. New York: Random House, 1952</p> +</div> +<hr class="full"> + +<div class="chapter"> +<p><span class="pagenum" id="Page_232">[Pg 232]</span></p> + +<h2 class="nobreak" id="c14">Index</h2> +</div> + +<p class="c">(First case references only)</p> + +<ul class="index"> +<li class="ifrst">A</li> + +<li class="indx">Abel, Louis, <a href="#Page_192">192</a></li> + +<li class="indx">Abt, John, <a href="#Page_138">138</a></li> + +<li class="indx">Adams, Lee, <a href="#Page_125">125</a></li> + +<li class="indx">Adams, Samuel, <a href="#Page_206">206</a></li> + +<li class="indx">Affe, Carlos M., <a href="#Page_94">94</a></li> + +<li class="indx">Aiken, Frederick, <a href="#Page_6">6</a></li> + +<li class="indx">Allen, James E., Jr., <a href="#Page_226">226</a></li> + +<li class="indx">Alnwick, Florence, <a href="#Page_215">215</a></li> + +<li class="indx"><i>America</i>, <a href="#Page_228">228</a></li> + +<li class="indx">American Civil Liberties Union, <a href="#Page_103">103</a></li> + +<li class="indx">American Ethical Union, <a href="#Page_221">221</a></li> + +<li class="indx">American Jewish Committee, <a href="#Page_220">220</a></li> + +<li class="indx">Anderson, Walter, <a href="#Page_159">159</a></li> + +<li class="indx">Andrews, Bert, <a href="#Page_153">153</a></li> + +<li class="indx">Andrews, George, <a href="#Page_224">224</a></li> + +<li class="indx">Andrews, Lola R., <a href="#Page_66">66</a></li> + +<li class="indx">Andrower, Guiseppe, <a href="#Page_94">94</a></li> + +<li class="indx">Anti-Defamation League, <a href="#Page_221">221</a></li> + +<li class="indx">Appell, Donald T., <a href="#Page_153">153</a></li> + +<li class="indx">Arnold, Benedict, <a href="#Page_166">166</a></li> + +<li class="indx">Arnold, Samuel, <a href="#Page_4">4</a></li> + +<li class="indx">Arrogani, Harry, <a href="#Page_85">85</a></li> + +<li class="indx">Atomic Energy Act, <a href="#Page_193">193</a></li> + +<li class="indx">Atzerodt, George A., <a href="#Page_4">4</a></li> + + +<li class="ifrst">B</li> + +<li class="indx">Backer, Frank J., <a href="#Page_226">226</a></li> + +<li class="indx">Bailey, H. G., <a href="#Page_122">122</a></li> + +<li class="indx">Baldwin, Roger, <a href="#Page_103">103</a></li> + +<li class="indx">Barnes, Joseph K., <a href="#Page_3">3</a></li> + +<li class="indx">Barrett, Tracy F., <a href="#Page_45">45</a></li> + +<li class="indx">Bates, Ruby, <a href="#Page_120">120</a></li> + +<li class="indx">Bautista, Dora, <a href="#Page_190">190</a></li> + +<li class="indx">Beamish, Richard, <a href="#Page_110">110</a></li> + +<li class="indx">Beauregard, P. G. Toutant, <a href="#Page_15">15</a></li> + +<li class="indx">Behrsin, Hans, <a href="#Page_70">70</a></li> + +<li class="indx">Beldock, George J., <a href="#Page_220">220</a></li> + +<li class="indx">Benson, J. S., <a href="#Page_130">130</a></li> + +<li class="indx">Bentley, Elizabeth, <a href="#Page_139">139</a>, <a href="#Page_190">190</a></li> + +<li class="indx">Benton, William, <a href="#Page_196">196</a></li> + +<li class="indx">Berardelli, Alessandro, <a href="#Page_68">68</a></li> + +<li class="indx">Berle, Adolph A., Jr., <a href="#Page_138">138</a></li> + +<li class="indx">Bernhardt, George, <a href="#Page_186">186</a></li> + +<li class="indx">Billings, Warren K., <a href="#Page_88">88</a></li> + +<li class="indx">Binger, Carl, <a href="#Page_162">162</a></li> + +<li class="indx">Bingham, John A., <a href="#Page_12">12</a></li> + +<li class="indx">Birch, Anne, <a href="#Page_216">216</a></li> + +<li class="indx">Black, Hugo L., <a href="#Page_222">222</a></li> + +<li class="indx">Bloch, Alexander, <a href="#Page_174">174</a></li> + +<li class="indx">Bloch, Emanuel, <a href="#Page_174">174</a></li> + +<li class="indx">Boda, Mike, <a href="#Page_74">74</a></li> + +<li class="indx">Bohr, Neils, <a href="#Page_178">178</a></li> + +<li class="indx">Bonjionanni, Adeladi, <a href="#Page_76">76</a></li> + +<li class="indx">Booth, John Wilkes, <a href="#Page_2">2</a></li> + +<li class="indx">Bosco, Albert, <a href="#Page_93">93</a></li> + +<li class="indx">Bostock, James E., <a href="#Page_68">68</a></li> + +<li class="indx">Brady, Matthew, <a href="#Page_64">64</a></li> + +<li class="indx">Brennan, James M., <a href="#Page_45">45</a></li> + +<li class="indx">Brennan, William J. Jr., <a href="#Page_222">222</a></li> + +<li class="indx">Brenner, William, <a href="#Page_82">82</a></li> + +<li class="indx">Bridges, R. R., <a href="#Page_124">124</a></li> + +<li class="indx">Brini, Alphonsine, <a href="#Page_91">91</a></li> + +<li class="indx">Brini, Beltrando, <a href="#Page_76">76</a></li> + +<li class="indx">Brini, LeFavre, <a href="#Page_92">92</a></li> + +<li class="indx">Broadway, Jim, <a href="#Page_125">125</a></li> + +<li class="indx">Brodsky, Joseph R., <a href="#Page_128">128</a></li> + +<li class="indx">Brooks, Georgina, F., <a href="#Page_76">76</a></li> + +<li class="indx">Brophy, John P., <a href="#Page_20">20</a></li> + +<li class="indx">Bruno, William A., <a href="#Page_226">226</a></li> + +<li class="indx">Bryan, William Jennings, <a href="#Page_103">103</a></li> + +<li class="indx">Bryan, William Jennings, Jr., <a href="#Page_107">107</a></li> + +<li class="indx">Buckley, David, <a href="#Page_73">73</a></li> + +<li class="indx">Budenz, Louis, <a href="#Page_198">198</a></li> + +<li class="indx">Bunner, Stephen, <a href="#Page_37">37</a></li> + +<li class="indx">Burke, Frank J., <a href="#Page_71">71</a></li> + +<li class="indx">Burns, Francis, <a href="#Page_2">2</a></li> + +<li class="indx">Burns, James E., <a href="#Page_86">86</a></li> + +<li class="indx">Burns, William J., <a href="#Page_33">33</a></li> + +<li class="indx">Burrs, L. J., <a href="#Page_128">128</a></li> + +<li class="indx">Butler, John Washington, <a href="#Page_102">102</a></li> + +<li class="indx">Butler, William J., <a href="#Page_213">213</a></li> + +<li class="indx">Bykov, Colonel, <a href="#Page_153">153</a></li> + + +<li class="ifrst">C</li> + +<li class="indx">Caldwell, Hamlin, <a href="#Page_129">129</a></li> + +<li class="indx">Callahan, William Washington, <a href="#Page_134">134</a></li> + +<li class="indx">Calvert, George H., Jr., <a href="#Page_10">10</a></li> + +<li class="indx">Campbell, Alexander, <a href="#Page_153">153</a></li> + +<li class="indx">Campbell, Julia, <a href="#Page_66">66</a></li> + +<li class="indx">Cantlin, John, <a href="#Page_20">20</a></li> + +<li class="indx">Caplan, Esther, <a href="#Page_59">59</a></li> + +<li class="indx">Carasso, Leon, <a href="#Page_59">59</a></li> + +<li class="indx">Carland, Louis, <a href="#Page_20">20</a></li> + +<li class="indx">Carr, Frank, <a href="#Page_198">198</a></li> + +<li class="indx">Carrigan, Mark, <a href="#Page_68">68</a></li> + +<li class="indx">Carter, Edward, <a href="#Page_79">79</a></li> + +<li class="indx">Carter, Lester, <a href="#Page_121">121</a></li> + +<li class="indx">Cartwright, L. M., <a href="#Page_105">105</a></li> + +<li class="indx">Cashin, N. E., <a href="#Page_130">130</a></li> + +<li class="indx">Catlett, Burnetta, <a href="#Page_162">162</a></li> + +<li class="indx">Catlett, Claudie, <a href="#Page_160">160</a></li> + +<li class="indx">Catlett, Perry, <a href="#Page_160">160</a></li> + +<li class="indx">Catlett, Raymond, <a href="#Page_160">160</a></li> + +<li class="indx">Chambers, David Whittaker, <a href="#Page_137">137</a></li> + +<li class="indx">Chambers, Esther, <a href="#Page_157">157</a></li> + +<li class="indx">Chamlee, George W., <a href="#Page_127">127</a></li> + +<li class="indx">Chamlee, George W., Jr., <a href="#Page_127">127</a></li> + +<li class="indx">Chandler, Porter R., <a href="#Page_217">217</a></li> + +<li class="indx">Chavez, Dennis, <a href="#Page_205">205</a></li> + +<li class="indx">Cherner Motor Company, <a href="#Page_150">150</a></li> + +<li class="indx"><i>Civic Biology</i>, <a href="#Page_108">108</a></li> + +<li class="indx">Clampitt, John W., <a href="#Page_6">6</a></li> + +<li class="indx">Clark, William, <a href="#Page_3">3</a></li> + +<li class="indx">Clarvoe, John, <a href="#Page_3">3</a></li> + +<li class="indx">Cockran, W. Bourke, <a href="#Page_45">45</a></li> + +<li class="indx">Cohn, Roy M., <a href="#Page_196">196</a></li> + +<li class="indx">Colburn, Frederick H., <a href="#Page_38">38</a></li> + +<li class="indx">Cole, Austin C., <a href="#Page_79">79</a></li> + +<li class="indx">Collins, Henry, <a href="#Page_144">144</a></li> + +<li class="indx">Collins, Timothy J., <a href="#Page_79">79</a></li> + +<li class="indx">Compton, Janice, <a href="#Page_55">55</a></li> + +<li class="indx">Conger, Everton, <a href="#Page_2">2</a></li> + +<li class="indx">Conley, Jim, <a href="#Page_26">26</a></li> + +<li class="indx">Connolly, Michael J., <a href="#Page_89">89</a></li> + +<li class="indx">Conrad, Joseph, <a href="#Page_193">193</a></li> + +<li class="indx">Constantino, Dominic, <a href="#Page_82">82</a></li> + +<li class="indx">Corbett, Boston, <a href="#Page_2">2</a></li> + +<li class="indx">Cottingham, George, <a href="#Page_13">13</a></li> + +<li class="indx">Cox, Evelyn, <a href="#Page_192">192</a></li> + +<li class="indx">Crane, Arthur H., <a href="#Page_54">54</a></li> + +<li class="indx">Cresafulli, Mario, <a href="#Page_57">57</a></li> + +<li class="indx">Cresafulli, Mrs. Mario, <a href="#Page_57">57</a></li> + +<li class="indx">Crosley, George, <a href="#Page_143">143</a></li> + +<li class="indx">Cross, Claude B., <a href="#Page_166">166</a></li> + +<li class="indx">Crowley, John M., <a href="#Page_44">44</a></li> + +<li class="indx">Crump, William B., <a href="#Page_45">45</a></li> + +<li class="indx">Cunha, Edward A., <a href="#Page_45">45</a></li> + +<li class="indx">Cutler, Rebecca, <a href="#Page_57">57</a></li> + + +<li class="ifrst">D</li> + +<li class="indx">Dahl, Fannie, <a href="#Page_55">55</a></li> + +<li class="indx">Daiker, Bertram B., <a href="#Page_216">216</a></li> + +<li class="indx">Daly, William H., <a href="#Page_96">96</a></li> + +<li class="indx">Danziger, William, <a href="#Page_187">187</a></li> + +<li class="indx">Darrow, Clarence S., <a href="#Page_104">104</a></li> + +<li class="indx">Darrow, Ruby, <a href="#Page_111">111</a></li> + +<li class="indx">Davis, Jefferson, <a href="#Page_7">7</a></li> + +<li class="indx">Davis, John W., <a href="#Page_106">106</a>, <a href="#Page_159">159</a></li> + +<li class="indx">De Beradinis, Louis, <a href="#Page_72">72</a></li> + +<li class="indx">De Caccia, Alphonse, <a href="#Page_45">45</a></li> + +<li class="indx">De Lorenzo, Julia, <a href="#Page_57">57</a></li> + +<li class="indx">De Los Rios, Manuel Giner, <a href="#Page_188">188</a></li> + +<li class="indx">Dempsey, John W., <a href="#Page_15">15</a></li> + +<li class="indx">Dennis, Glenn, <a href="#Page_190">190</a></li> + +<li class="indx">Dentamore, Antonio, <a href="#Page_93">93</a></li> + +<li class="indx">Desmond, Charles S., <a href="#Page_220">220</a></li> + +<li class="indx">Devlin, Frances J., <a href="#Page_84">84</a></li> + +<li class="indx">Di Carli, John, <a href="#Page_76">76</a></li> + +<li class="indx">Dies, Martin, <a href="#Page_205">205</a></li> + +<li class="indx">Dobbins, T. L., <a href="#Page_125">125</a></li> + +<li class="indx">Doidge, Thomas U., <a href="#Page_55">55</a></li> + +<li class="indx">Dolan, John A., <a href="#Page_52">52</a></li> + +<li class="indx">Dolbeare, Harry E., <a href="#Page_66">66</a></li> + +<li class="indx">Dollard, Charles, <a href="#Page_145">145</a></li> + +<li class="indx">Donaldson, Peter, <a href="#Page_105">105</a></li> + +<li class="indx">Donegan, Thomas J., <a href="#Page_154">154</a></li> + +<li class="indx">Dorsey, Hugh M., <a href="#Page_29">29</a></li> + +<li class="indx">Doster, William E., <a href="#Page_15">15</a></li> + +<li class="indx">Douglas, William O., <a href="#Page_192">192</a>, <a href="#Page_223">223</a></li> + +<li class="indx">Dulles, John Foster, <a href="#Page_163">163</a></li> + +<li class="indx">Dunne, Frank H., <a href="#Page_44">44</a></li> + +<li class="indx">Dye, Marvin R., <a href="#Page_221">221</a></li> + + +<li class="ifrst">E</li> + +<li class="indx">Eastland, James O., <a href="#Page_225">225</a></li> + +<li class="indx">Edeau, Nellie, <a href="#Page_44">44</a></li> + +<li class="indx">Edeau, Sadie, <a href="#Page_44">44</a></li> + +<li class="indx">Edelman, Irvin, <a href="#Page_193">193</a></li> + +<li class="indx">Eisenhower, Dwight David, <a href="#Page_193">193</a>, <a href="#Page_196">196</a></li> + +<li class="indx">Eisler, Gerhard, <a href="#Page_164">164</a></li> + +<li class="indx">Elitcher, Max, <a href="#Page_174">174</a></li> + +<li class="indx">Ellis, Claude O., <a href="#Page_61">61</a></li> + +<li class="indx">Engel, Michael, <a href="#Page_214">214</a></li> + +<li class="indx">Engel, Steven I., <a href="#Page_214">214</a></li> + +<li class="indx">Eris, Louis, <a href="#Page_55">55</a></li> + +<li class="indx">Espinosa, Minerva Bravo, <a href="#Page_189">189</a></li> + +<li class="indx">Espionage Act, <a href="#Page_193">193</a></li> + + +<li class="ifrst">F</li> + +<li class="indx">Fahy, Charles, <a href="#Page_159">159</a></li> + +<li class="indx">Falzini, Luigi, <a href="#Page_94">94</a></li> + +<li class="indx">Faulkner, John M., <a href="#Page_67">67</a></li> + +<li class="indx">Fay, George W., <a href="#Page_81">81</a></li> + +<li class="indx">Feehan, Ramos S., <a href="#Page_159">159</a></li> + +<li class="indx">Ferguson, Lawrence D., <a href="#Page_71">71</a></li> + +<li class="indx">Fickert, Charles M., <a href="#Page_38">38</a></li> + +<li class="indx">Field, Frederick, <a href="#Page_204">204</a></li> + +<li class="indx">Fields, Noel, <a href="#Page_167">167</a></li> + +<li class="indx">Fiochi, Margaretta, <a href="#Page_76">76</a></li> + +<li class="indx">Fitzgerald, J. Henry, <a href="#Page_86">86</a></li> + +<li class="indx">Fitzpatrick, Honora, <a href="#Page_15">15</a></li> + +<li class="indx">Flanders, Ralph E., <a href="#Page_204">204</a></li> + +<li class="indx">Foley, Roger, <a href="#Page_221">221</a></li> + +<li class="indx">Folliard, Edward T., <a href="#Page_152">152</a></li> + +<li class="indx">Fosdick, Harry Emerson, <a href="#Page_132">132</a></li> + +<li class="indx">Fraher, Thomas F., <a href="#Page_87">87</a></li> + +<li class="indx">Frank, Leo M., <a href="#Page_24">24</a></li> + +<li class="indx">Frankfurter, Felix, <a href="#Page_99">99</a>, <a href="#Page_159">159</a>, <a href="#Page_222">222</a></li> + +<li class="indx">Frantello, Albert, <a href="#Page_68">68</a></li> + +<li class="indx">Fried, Philip, J., <a href="#Page_216">216</a></li> + +<li class="indx">Fuchs, Klaus Emil Julius, <a href="#Page_170">170</a></li> + +<li class="indx">Fuld, Stanley H., <a href="#Page_221">221</a></li> + +<li class="indx">Fuller, Alvan T., <a href="#Page_100">100</a></li> + +<li class="indx">Fuller, Edgar, <a href="#Page_225">225</a></li> + + +<li class="ifrst">G</li> + +<li class="indx">Gallivan, Jeremiah F., <a href="#Page_74">74</a></li> + +<li class="indx">Geller, Stanley, <a href="#Page_216">216</a></li> + +<li class="indx">Gerard, George A., <a href="#Page_77">77</a></li> + +<li class="indx">Gilley, Orville, <a href="#Page_121">121</a></li> + +<li class="indx">Gilley, Sam, <a href="#Page_126">126</a></li> + +<li class="indx">Goddard, Henry W., <a href="#Page_166">166</a></li> + +<li class="indx">Gold, Harry, <a href="#Page_171">171</a></li> + +<li class="indx">Golos, <a href="#Page_190">190</a></li> + +<li class="indx">Goodridge, Carlos E., <a href="#Page_72">72</a></li> + +<li class="indx">Gould, Roy E., <a href="#Page_71">71</a></li> + +<li class="indx">Gouzenko, Igor, <a href="#Page_170">170</a></li> + +<li class="indx">Graham, Billy, <a href="#Page_108">108</a>, <a href="#Page_224">224</a></li> + +<li class="indx">Graham, J. M., <a href="#Page_76">76</a></li> + +<li class="indx">Grant, Robert, <a href="#Page_100">100</a></li> + +<li class="indx">Grant, Ulysses S., <a href="#Page_1">1</a></li> + +<li class="indx">Graves, Bibb, <a href="#Page_135">135</a></li> + +<li class="indx">Greeley, Dana McLean, <a href="#Page_225">225</a></li> + +<li class="indx">Green, Sam, <a href="#Page_57">57</a></li> + +<li class="indx">Greenberg, Hyman J., <a href="#Page_228">228</a> (fn)</li> + +<li class="indx">Greenglass, David, <a href="#Page_172">172</a></li> + +<li class="indx">Greenglass, Ruth, <a href="#Page_172">172</a></li> + +<li class="indx">Griffin, Franklin A., <a href="#Page_45">45</a></li> + +<li class="indx">Guadagni, Felici, <a href="#Page_93">93</a></li> + +<li class="indx">Guerin, Daniel T., <a href="#Page_87">87</a></li> + +<li class="indx">Guidobone, Angel T., <a href="#Page_92">92</a></li> + +<li class="indx">Guild of Catholic Lawyers, <a href="#Page_217">217</a></li> + +<li class="indx">Gullender, Elsie, <a href="#Page_147">147</a></li> + +<li class="indx">Gunn, Neier & Daiker, <a href="#Page_216">216</a></li> + +<li class="indx">Gwynn, B. F., <a href="#Page_17">17</a></li> + + +<li class="ifrst">H</li> + +<li class="indx">Hamilton, Albert H., <a href="#Page_97">97</a></li> + +<li class="indx">Hammersburg, Belle, <a href="#Page_58">58</a></li> + +<li class="indx">Hancock, John, <a href="#Page_206">206</a></li> + +<li class="indx">Hancock, W. S., <a href="#Page_22">22</a></li> + +<li class="indx">Hand, Draper H., <a href="#Page_53">53</a></li> + +<li class="indx">Harlan, John Marshall, <a href="#Page_221">221</a></li> + +<li class="indx">Harris, Clara, <a href="#Page_2">2</a></li> + +<li class="indx">Harris, H. F., <a href="#Page_33">33</a></li> + +<li class="indx">Harris, T. M., <a href="#Page_6">6</a></li> + +<li class="indx">Harte, Mary, <a href="#Page_215">215</a></li> + +<li class="indx">Hartranft, General, <a href="#Page_6">6</a></li> + +<li class="indx">Hatcher, Earl, <a href="#Page_62">62</a></li> + +<li class="indx">Hatcher, Mrs. Earl, <a href="#Page_62">62</a></li> + +<li class="indx">Hathaway, Clarence, <a href="#Page_199">199</a></li> + +<li class="indx">Hawk, Harry, <a href="#Page_2">2</a></li> + +<li class="indx">Hawkins, Alf E., <a href="#Page_122">122</a></li> + +<li class="indx">Hays, Arthur Garfield, <a href="#Page_27">27</a>, <a href="#Page_107">107</a>, <a href="#Page_214">214</a></li> + +<li class="indx">Hébert, F. Edward, <a href="#Page_139">139</a></li> + +<li class="indx">Henry, Henri P., <a href="#Page_161">161</a></li> + +<li class="indx">Hepburn, Richard, <a href="#Page_159">159</a></li> + +<li class="indx">Herold, David E., <a href="#Page_4">4</a></li> + +<li class="indx">Heron, William J., <a href="#Page_67">67</a></li> + +<li class="indx">Hiss, Alger, <a href="#Page_138">138</a>, <a href="#Page_195">195</a></li> + +<li class="indx">Hiss, Donald, <a href="#Page_140">140</a></li> + +<li class="indx">Hiss, Priscilla, <a href="#Page_139">139</a></li> + +<li class="indx">Hobson, Timmy, <a href="#Page_140">140</a></li> + +<li class="indx">Hollfender, Charles F., <a href="#Page_55">55</a></li> + +<li class="indx">Holmes, Oliver Wendell, <a href="#Page_35">35</a>, <a href="#Page_100">100</a>, <a href="#Page_165">165</a></li> + +<li class="indx">Holahan, Eliza, <a href="#Page_18">18</a></li> + +<li class="indx">Holohan, John T., <a href="#Page_19">19</a></li> + +<li class="indx">Holt, Joseph, <a href="#Page_5">5</a></li> + +<li class="indx">Hon, Will George M., <a href="#Page_40">40</a></li> + +<li class="indx">Hoover, Herbert, <a href="#Page_225">225</a></li> + +<li class="indx">Hopkins, Daisy, <a href="#Page_29">29</a></li> + +<li class="indx">Horton, James E., <a href="#Page_129">129</a></li> + +<li class="indx">Howell, Dewie, <a href="#Page_32">32</a></li> + +<li class="indx">Hoxton, John, <a href="#Page_18">18</a></li> + +<li class="indx">Hoxton, William, <a href="#Page_18">18</a></li> + +<li class="indx">Huggins, James S., <a href="#Page_190">190</a></li> + +<li class="indx">Hughes, Charles Evans, <a href="#Page_134">134</a></li> + +<li class="indx">Hughes, Peter T., <a href="#Page_43">43</a></li> + +<li class="indx">Hunter, David, <a href="#Page_6">6</a></li> + +<li class="indx">Hunter, George William, <a href="#Page_108">108</a></li> + +<li class="indx">Hunting, Nathaniel S., <a href="#Page_85">85</a></li> + +<li class="indx">Hutchison, William K., <a href="#Page_110">110</a></li> + + +<li class="ifrst">I</li> + +<li class="indx">Iacovelli, Henry, <a href="#Page_94">94</a></li> + +<li class="indx">Inslerman, Felix, <a href="#Page_155">155</a></li> + +<li class="indx">International Defense League, <a href="#Page_127">127</a></li> + +<li class="indx">Iscariot, Judas, <a href="#Page_165">165</a></li> + + +<li class="ifrst">J</li> + +<li class="indx">Jackson, Irene, <a href="#Page_33">33</a></li> + +<li class="indx">Javits, Jacob K., <a href="#Page_225">225</a></li> + +<li class="indx">Jenkins, Zad, <a href="#Page_17">17</a></li> + +<li class="indx">Jesse, Frank, <a href="#Page_91">91</a></li> + +<li class="indx">Johnson, Andrew, <a href="#Page_4">4</a></li> + +<li class="indx">Johnson, Reverdy, <a href="#Page_6">6</a></li> + +<li class="indx">Johnson, Simon, <a href="#Page_74">74</a></li> + +<li class="indx">Johnson, Mrs. Simon, <a href="#Page_75">75</a></li> + +<li class="indx">Johnston, Joseph E., <a href="#Page_1">1</a></li> + +<li class="indx">Jones, John Paul, <a href="#Page_213">213</a></li> + + +<li class="ifrst">K</li> + +<li class="indx">Katzmann, Frederick A., <a href="#Page_76">76</a></li> + +<li class="indx">Kaufman, Irving R., <a href="#Page_174">174</a></li> + +<li class="indx">Kaufman, Samuel H., <a href="#Page_154">154</a></li> + +<li class="indx">Keeler, Leonardo, <a href="#Page_145">145</a></li> + +<li class="indx">Keene, Laura, <a href="#Page_1">1</a></li> + +<li class="indx">Kelleher, Julie, <a href="#Page_73">73</a></li> + +<li class="indx">Kelley, George T., <a href="#Page_87">87</a></li> + +<li class="indx">Kelly, Dean M., <a href="#Page_225">225</a></li> + +<li class="indx">Kelly, Thomas V., <a href="#Page_192">192</a></li> + +<li class="indx">Kennedy, John F., <a href="#Page_220">220</a></li> + +<li class="indx">Kidwell, Alice, <a href="#Page_42">42</a></li> + +<li class="indx">Kirsch, Benjamin, <a href="#Page_57">57</a></li> + +<li class="indx">Kistiakowski, George B., <a href="#Page_178">178</a></li> + +<li class="indx">Kluttz, Jerry, <a href="#Page_153">153</a></li> + +<li class="indx">Knapp, Hetta, <a href="#Page_40">40</a></li> + +<li class="indx">Kneese, Henry, <a href="#Page_40">40</a></li> + +<li class="indx">Knight, Thomas, Jr., <a href="#Page_129">129</a></li> + +<li class="indx">Kohlberg, Alfred, <a href="#Page_163">163</a></li> + +<li class="indx">Kuchel, Thomas H., <a href="#Page_206">206</a></li> + +<li class="indx">Kuntz, Edward, <a href="#Page_174">174</a></li> + +<li class="indx">Kurlansky, Harry, <a href="#Page_81">81</a></li> + +<li class="indx">Kytka, Theodore, <a href="#Page_56">56</a></li> + + +<li class="ifrst">L</li> + +<li class="indx">LaBreque, Alfred N., <a href="#Page_80">80</a></li> + +<li class="indx">Lamont, Corliss, <a href="#Page_196">196</a></li> + +<li class="indx">Lamont, Thomas W., <a href="#Page_201">201</a></li> + +<li class="indx">Langlois, Edgar C., <a href="#Page_71">71</a></li> + +<li class="indx">Langer, William, <a href="#Page_204">204</a></li> + +<li class="indx">La Posee, Charlotte, <a href="#Page_60">60</a></li> + +<li class="indx">Latham, T. N., <a href="#Page_125">125</a></li> + +<li class="indx">Lattimore, Owen D., <a href="#Page_195">195</a></li> + +<li class="indx">Laulor, John, <a href="#Page_45">45</a></li> + +<li class="indx">Lawlor, John C., <a href="#Page_57">57</a></li> + +<li class="indx">Lee, Newt, <a href="#Page_25">25</a></li> + +<li class="indx">Lee, Robert E., <a href="#Page_1">1</a></li> + +<li class="indx">Leger, Camille, <a href="#Page_57">57</a></li> + +<li class="indx">Lehman, Herbert H., <a href="#Page_204">204</a></li> + +<li class="indx">Leibowitz, Samuel S., <a href="#Page_129">129</a></li> + +<li class="indx">Lerner, Cynthia, <a href="#Page_215">215</a></li> + +<li class="indx">Lerner, Monroe, <a href="#Page_215">215</a></li> + +<li class="indx">Levangie, Michael, <a href="#Page_72">72</a></li> + +<li class="indx">Levine, Nathan, <a href="#Page_152">152</a></li> + +<li class="indx">Levitov, Edith, <a href="#Page_188">188</a></li> + +<li class="indx">Lichtenstein, Daniel, <a href="#Page_215">215</a></li> + +<li class="indx">Like, Irving, <a href="#Page_197">197</a></li> + +<li class="indx">Lincoln, Abraham, <a href="#Page_1">1</a></li> + +<li class="indx">Lincoln, Eunice, <a href="#Page_159">159</a></li> + +<li class="indx">Lincoln, Mary Todd, <a href="#Page_1">1</a></li> + +<li class="indx">Liscomb, Barbara, <a href="#Page_70">70</a></li> + +<li class="indx">Lloyd, John M., <a href="#Page_10">10</a></li> + +<li class="indx">Lockey, Ira, <a href="#Page_160">160</a></li> + +<li class="indx">Loring, Fred L., <a href="#Page_74">74</a></li> + +<li class="indx">Lowell, Abbott Lawrence, <a href="#Page_100">100</a></li> + +<li class="indx">Lumbard, J. Edward, <a href="#Page_207">207</a></li> + +<li class="indx">Lusby, James, <a href="#Page_17">17</a></li> + +<li class="indx">Lynch, M. H., <a href="#Page_124">124</a></li> + +<li class="indx">Lyons, Lenore, <a href="#Page_215">215</a></li> + + +<li class="ifrst">M</li> + +<li class="indx">MacNevin, William V., <a href="#Page_46">46</a></li> + +<li class="indx">Magazu, Peter, <a href="#Page_85">85</a></li> + +<li class="indx">Magrath, George B., <a href="#Page_85">85</a></li> + +<li class="indx">Malaquci, Terese, <a href="#Page_76">76</a></li> + +<li class="indx">Malone, Dudley Field, <a href="#Page_107">107</a></li> + +<li class="indx">Manganio, Andrew, <a href="#Page_85">85</a></li> + +<li class="indx">Manhattan District Project, <a href="#Page_171">171</a></li> + +<li class="indx">Marbury, William, <a href="#Page_153">153</a></li> + +<li class="indx">Marlow, Vernon, <a href="#Page_162">162</a></li> + +<li class="indx">Massing, Hede, <a href="#Page_164">164</a></li> + +<li class="indx">Masterson, Maud, <a href="#Page_55">55</a></li> + +<li class="indx">Matheson, Duncan, <a href="#Page_37">37</a></li> + +<li class="indx">May, Allan Nunn, <a href="#Page_170">170</a></li> + +<li class="indx">McAnarney, Jeremiah J., <a href="#Page_77">77</a></li> + +<li class="indx">McAnarney, Thomas F., <a href="#Page_77">77</a></li> + +<li class="indx">McCarthy, Bridget, <a href="#Page_209">209</a></li> + +<li class="indx">McCarthy, Henry, <a href="#Page_79">79</a></li> + +<li class="indx">McCarthy, Joseph Raymond, <a href="#Page_193">193</a></li> + +<li class="indx">McCarthy, Timothy, <a href="#Page_209">209</a></li> + +<li class="indx">McClellan, George, <a href="#Page_15">15</a></li> + +<li class="indx">McClendon, Ennis, <a href="#Page_131">131</a></li> + +<li class="indx">McCullum, Peter, <a href="#Page_82">82</a></li> + +<li class="indx">McDonald, John, <a href="#Page_42">42</a></li> + +<li class="indx">McDougall, Jimmy, <a href="#Page_52">52</a></li> + +<li class="indx">McDowell, John R., <a href="#Page_139">139</a></li> + +<li class="indx">McGuiness, James E., <a href="#Page_228">228</a></li> + +<li class="indx">McGlone, James E., <a href="#Page_70">70</a></li> + +<li class="indx">McGohey, John F. X., <a href="#Page_153">153</a></li> + +<li class="indx">McIntyre, James Francis Cardinal, <a href="#Page_224">224</a></li> + +<li class="indx">McLean, Edward C., <a href="#Page_154">154</a></li> + +<li class="indx">McMarrin, Sterling M., <a href="#Page_225">225</a></li> + +<li class="indx">McNutt, Maxwell, <a href="#Page_46">46</a></li> + +<li class="indx">Medeiros, Celestino, F., <a href="#Page_98">98</a></li> + +<li class="indx"><i>Meet the Press</i>, <a href="#Page_152">152</a></li> + +<li class="indx">Mencken, H. L., <a href="#Page_107">107</a></li> + +<li class="indx">Metcalf, Maynard, M., <a href="#Page_112">112</a></li> + +<li class="indx">Meyer, Bernard S., <a href="#Page_217">217</a></li> + +<li class="indx">Migram, H. C., <a href="#Page_53">53</a></li> + +<li class="indx">Miller, B. M., <a href="#Page_122">122</a></li> + +<li class="indx">Mitchell, Sam, <a href="#Page_125">125</a></li> + +<li class="indx">Monello, Angelo, <a href="#Page_93">93</a></li> + +<li class="indx">Monroe, Dora, E., <a href="#Page_63">63</a></li> + +<li class="indx">Montgomery, Olen, <a href="#Page_122">122</a></li> + +<li class="indx">Moody, Jefferson E., <a href="#Page_129">129</a></li> + +<li class="indx">Moody, Milo, <a href="#Page_123">123</a></li> + +<li class="indx">Mooney, Rena, <a href="#Page_39">39</a></li> + +<li class="indx">Mooney, Thomas V., <a href="#Page_38">38</a></li> + +<li class="indx">Moore, Earl R., <a href="#Page_40">40</a></li> + +<li class="indx">Moore, Frederick H., <a href="#Page_77">77</a></li> + +<li class="indx">Morgan, Howard, <a href="#Page_111">111</a></li> + +<li class="indx">Morgan, J. P., <a href="#Page_196">196</a></li> + +<li class="indx">Morgan, Luke, <a href="#Page_111">111</a></li> + +<li class="indx">Morgan, R. C., <a href="#Page_15">15</a></li> + +<li class="indx"><i>Morning, Noon and Night</i>, <a href="#Page_15">15</a></li> + +<li class="indx">Morris, Luther, <a href="#Page_125">125</a></li> + +<li class="indx">Morse, Wayne, <a href="#Page_206">206</a></li> + +<li class="indx">Mosely, Travis, <a href="#Page_130">130</a></li> + +<li class="indx">Moss, Annie Lee, <a href="#Page_209">209</a></li> + +<li class="indx">Moss, Maximillian, <a href="#Page_213">213</a></li> + +<li class="indx">Moss, Mora, J., <a href="#Page_55">55</a></li> + +<li class="indx">Mudd, Samuel A., <a href="#Page_4">4</a></li> + +<li class="indx">Mundt, Karl, <a href="#Page_138">138</a></li> + +<li class="indx">Murphy, Francis J., <a href="#Page_74">74</a></li> + +<li class="indx">Murphy, James L., <a href="#Page_62">62</a></li> + +<li class="indx">Murphy, Thomas F., <a href="#Page_154">154</a></li> + +<li class="indx">Murray, Edith, <a href="#Page_168">168</a></li> + + +<li class="ifrst">N</li> + +<li class="indx">National Council of Churches, <a href="#Page_225">225</a></li> + +<li class="indx">Neal, John Randolph, <a href="#Page_106">106</a></li> + +<li class="indx">Neal, Shelley A., <a href="#Page_65">65</a></li> + +<li class="indx">New York Civil Liberties Union, <a href="#Page_211">211</a></li> + +<li class="indx">Nixon, Richard M., <a href="#Page_139">139</a>, <a href="#Page_207">207</a></li> + +<li class="indx">Norris, Clarence, <a href="#Page_122">122</a></li> + +<li class="indx">Nothey, John, <a href="#Page_8">8</a></li> + +<li class="indx">Nott, Joe, <a href="#Page_17">17</a></li> + +<li class="indx">Novelli, Jennie, <a href="#Page_90">90</a></li> + +<li class="indx">Nye Committee, <a href="#Page_147">147</a></li> + + +<li class="ifrst">O</li> + +<li class="indx">Offutt, Emma, <a href="#Page_13">13</a></li> + +<li class="indx">O’Laughlin, Michael, <a href="#Page_4">4</a></li> + +<li class="indx"><i>On Board</i>, <a href="#Page_211">211</a></li> + +<li class="indx">O’Neil, Daniel J., <a href="#Page_71">71</a></li> + +<li class="indx">Oppenheim, E. Phillips, <a href="#Page_182">182</a></li> + +<li class="indx">Oppenheimer, J. Robert, <a href="#Page_178">178</a></li> + +<li class="indx">Orciani, Ricardo, <a href="#Page_74">74</a></li> + +<li class="indx">Otis, James, <a href="#Page_206">206</a></li> + +<li class="indx">Oxman, Frank C., <a href="#Page_49">49</a></li> + + +<li class="ifrst">P</li> + +<li class="indx">Pagano, Helen, <a href="#Page_192">192</a></li> + +<li class="indx">Parker, John F., <a href="#Page_2">2</a></li> + +<li class="indx">Parmenter, Frederick A., <a href="#Page_66">66</a></li> + +<li class="indx">Pasternak, Max, <a href="#Page_188">188</a></li> + +<li class="indx">Patterson, Haywood, <a href="#Page_122">122</a></li> + +<li class="indx">Patterson, William, <a href="#Page_129">129</a></li> + +<li class="indx">Payne, Lewis, <a href="#Page_4">4</a></li> + +<li class="indx">Peay, Austin, <a href="#Page_103">103</a></li> + +<li class="indx">Peck, Gregory, <a href="#Page_216">216</a></li> + +<li class="indx">Peck, Lester, <a href="#Page_211">211</a></li> + +<li class="indx">Pelser, Lewis, <a href="#Page_70">70</a></li> + +<li class="indx">Peress, Irving, <a href="#Page_197">197</a></li> + +<li class="indx">Peters, J., <a href="#Page_140">140</a></li> + +<li class="indx">Peterson, Walter, J., <a href="#Page_61">61</a></li> + +<li class="indx">Peterson, William, <a href="#Page_3">3</a></li> + +<li class="indx">Phagan, Mary, <a href="#Page_25">25</a></li> + +<li class="indx">Phillips, Harold M., <a href="#Page_174">174</a></li> + +<li class="indx">Pickett, J. E., <a href="#Page_130">130</a></li> + +<li class="indx">Pierce, Winifred H., <a href="#Page_71">71</a></li> + +<li class="indx">Pike, James A., <a href="#Page_224">224</a></li> + +<li class="indx">Pincus, Henry, <a href="#Page_45">45</a></li> + +<li class="indx">Pirk, Mary, <a href="#Page_34">34</a></li> + +<li class="indx">Pitman, Benn, <a href="#Page_6">6</a></li> + +<li class="indx">Pollak, Walter H., <a href="#Page_128">128</a></li> + +<li class="indx">Potter, Charles Francis, <a href="#Page_109">109</a></li> + +<li class="indx">Powell, Ozie, <a href="#Page_122">122</a></li> + +<li class="indx">Presley, Henry, <a href="#Page_131">131</a></li> + +<li class="indx">Pressman, Lee, <a href="#Page_138">138</a></li> + +<li class="indx">Price, Victoria, <a href="#Page_120">120</a></li> + +<li class="indx">Proctor, William H., <a href="#Page_85">85</a></li> + +<li class="indx">Proll, William R., <a href="#Page_54">54</a></li> + +<li class="indx"><i>Psychological and Cultural Traits of Soviet Siberia</i>, <a href="#Page_198">198</a></li> + + +<li class="ifrst">Q</li> + +<li class="indx">Quinn, Lemmie, <a href="#Page_30">30</a></li> + +<li class="indx"><i>Quinn v. United States</i>, <a href="#Page_207">207</a></li> + + +<li class="ifrst">R</li> + +<li class="indx">Rabinavicius, Henrikas, <a href="#Page_167">167</a></li> + +<li class="indx">Rankin, John, <a href="#Page_139">139</a></li> + +<li class="indx">Ransford, P. T., <a href="#Page_19">19</a></li> + +<li class="indx">Rappelyea, George W., <a href="#Page_103">103</a></li> + +<li class="indx">Rath, Christian, <a href="#Page_22">22</a></li> + +<li class="indx">Rathbone, Henry Reed, <a href="#Page_2">2</a></li> + +<li class="indx">Raulston, John T., <a href="#Page_104">104</a></li> + +<li class="indx">Raushenbush, Stephen, <a href="#Page_147">147</a></li> + +<li class="indx">Reed, Austin T., <a href="#Page_73">73</a></li> + +<li class="indx">Reed, Stanley, <a href="#Page_159">159</a></li> + +<li class="indx">Reeves, Instrument Corporation, <a href="#Page_175">175</a></li> + +<li class="indx">Regents’ Prayer, <a href="#Page_210">210</a></li> + +<li class="indx">Reisman, E. E., <a href="#Page_132">132</a></li> + +<li class="indx">Ricci, Dominick, <a href="#Page_94">94</a></li> + +<li class="indx">Rigall, F. E., <a href="#Page_59">59</a></li> + +<li class="indx">Riley, Jim, <a href="#Page_108">108</a></li> + +<li class="indx">Ripley, Walter R., <a href="#Page_77">77</a></li> + +<li class="indx">Roan, L. S., <a href="#Page_27">27</a></li> + +<li class="indx">Robbins, Orry, <a href="#Page_125">125</a></li> + +<li class="indx">Roberson, Willie, <a href="#Page_122">122</a></li> + +<li class="indx">Roberts, Hilbert, <a href="#Page_58">58</a></li> + +<li class="indx">Robinson, Mrs. Bill (Bonjangles), <a href="#Page_136">136</a></li> + +<li class="indx">Robinson, F. E., <a href="#Page_103">103</a></li> + +<li class="indx">Rockefeller, Nelson, <a href="#Page_224">224</a></li> + +<li class="indx">Roddy, Stephen W., <a href="#Page_122">122</a></li> + +<li class="indx">Rogers, Will, <a href="#Page_115">115</a></li> + +<li class="indx">Rogge, O. John, <a href="#Page_174">174</a></li> + +<li class="indx">Rominger, Louis, <a href="#Page_41">41</a></li> + +<li class="indx">Rosen, Joseph, <a href="#Page_92">92</a></li> + +<li class="indx">Rosen, William, <a href="#Page_151">151</a></li> + +<li class="indx">Rosenberg, Ethel, <a href="#Page_173">173</a></li> + +<li class="indx">Rosenberg, Julius, <a href="#Page_173">173</a></li> + +<li class="indx">Rosenblatt, Harry, <a href="#Page_57">57</a></li> + +<li class="indx">Roth, Daniel, <a href="#Page_211">211</a></li> + +<li class="indx">Roth, Joseph, <a href="#Page_211">211</a></li> + +<li class="indx">Roth, Lawrence, <a href="#Page_211">211</a></li> + +<li class="indx">Roulhac, George Norman, <a href="#Page_167">167</a></li> + +<li class="indx">Rousseau, Tom Taylor, <a href="#Page_125">125</a></li> + +<li class="indx">Rovere, Richard H., <a href="#Page_209">209</a></li> + +<li class="indx">Rundquist, George, <a href="#Page_211">211</a></li> + +<li class="indx">Russell, Louis J., <a href="#Page_147">147</a></li> + +<li class="indx">Ryan, John, <a href="#Page_19">19</a></li> + + +<li class="ifrst">S</li> + +<li class="indx">Sacco, Nicola, <a href="#Page_74">74</a></li> + +<li class="indx">Salsedo, Andrea, <a href="#Page_91">91</a></li> + +<li class="indx">Saltonstall, Leverett, <a href="#Page_205">205</a></li> + +<li class="indx">Sand, Marvin, <a href="#Page_188">188</a></li> + +<li class="indx">Sanders, Walter, <a href="#Page_120">120</a></li> + +<li class="indx">Saunders, Richard, <a href="#Page_215">215</a></li> + +<li class="indx">Sayre, Francis, <a href="#Page_159">159</a></li> + +<li class="indx">Saypol, Irving H., <a href="#Page_172">172</a></li> + +<li class="indx">Scavitto, Joseph, <a href="#Page_80">80</a></li> + +<li class="indx">Schapiro, Meyer, <a href="#Page_157">157</a></li> + +<li class="indx">Schine, G. David, <a href="#Page_196">196</a></li> + +<li class="indx">Schneider, Ben, <a href="#Page_192">192</a></li> + +<li class="indx">Schwellenbach, Lewis B., <a href="#Page_146">146</a></li> + +<li class="indx">Scopes, John Thomas, <a href="#Page_103">103</a></li> + +<li class="indx">Scott, Harry, <a href="#Page_27">27</a></li> + +<li class="indx">Scott, John, <a href="#Page_74">74</a></li> + +<li class="indx">Scottsboro Defense Committee, <a href="#Page_134">134</a></li> + +<li class="indx">Semus, Rachel, <a href="#Page_18">18</a></li> + +<li class="indx">Seward, William H., <a href="#Page_3">3</a></li> + +<li class="indx">Shaw, Maynard Freeman, <a href="#Page_76">76</a></li> + +<li class="indx">Shelton, Harry, <a href="#Page_111">111</a></li> + +<li class="indx">Sidorovich, Ann, <a href="#Page_179">179</a></li> + +<li class="indx">Simmons, Ernest J., <a href="#Page_198">198</a></li> + +<li class="indx">Slaton, John H., <a href="#Page_36">36</a></li> + +<li class="indx">Smith, Alonzo, <a href="#Page_63">63</a></li> + +<li class="indx">Smith, David J., <a href="#Page_59">59</a></li> + +<li class="indx">Smith, Estelle, <a href="#Page_41">41</a></li> + +<li class="indx">Smith, Frank, <a href="#Page_19">19</a></li> + +<li class="indx">Smith, H. W., <a href="#Page_4">4</a></li> + +<li class="indx">Smith, Kirby, <a href="#Page_1">1</a></li> + +<li class="indx">Smith, W. Marvin, <a href="#Page_150">150</a></li> + +<li class="indx">Smith, William H., <a href="#Page_61">61</a></li> + +<li class="indx">Sobell, Helen, <a href="#Page_189">189</a></li> + +<li class="indx">Sobell, Morton, <a href="#Page_173">173</a></li> + +<li class="indx">Solt, Morton, <a href="#Page_190">190</a></li> + +<li class="indx">Spangler, Edward, <a href="#Page_4">4</a></li> + +<li class="indx">Spear, Merle A., <a href="#Page_89">89</a></li> + +<li class="indx">Spellman, Francis Cardinal, <a href="#Page_224">224</a></li> + +<li class="indx">Splaine, Mary E., <a href="#Page_70">70</a></li> + +<li class="indx">Stafford, David E., <a href="#Page_40">40</a></li> + +<li class="indx">Stanton, Edwin M., <a href="#Page_3">3</a></li> + +<li class="indx">Starnes, Joe, <a href="#Page_123">123</a></li> + +<li class="indx">Stateler, T. K., <a href="#Page_54">54</a></li> + +<li class="indx">Stephens, Alexander H., <a href="#Page_15">15</a></li> + +<li class="indx">Stephens, William D., <a href="#Page_62">62</a></li> + +<li class="indx">Stevens, Robert T., <a href="#Page_203">203</a></li> + +<li class="indx">Stewart, A. T., <a href="#Page_108">108</a></li> + +<li class="indx">Stewart, Michael E., <a href="#Page_74">74</a></li> + +<li class="indx">Stewart, Potter, <a href="#Page_222">222</a></li> + +<li class="indx">Stokes, Will, <a href="#Page_127">127</a></li> + +<li class="indx"><i>Stop Me If You Have Heard This</i>, <a href="#Page_173">173</a></li> + +<li class="indx">Stover, Monteen, <a href="#Page_30">30</a></li> + +<li class="indx">Stratton, Samuel W., <a href="#Page_100">100</a></li> + +<li class="indx">Stripling, Robert, <a href="#Page_137">137</a></li> + +<li class="indx">Stryker, Lloyd Paul, <a href="#Page_154">154</a></li> + +<li class="indx">Surratt, Anna, <a href="#Page_18">18</a></li> + +<li class="indx">Surratt, John H., <a href="#Page_3">3</a></li> + +<li class="indx">Surratt, Mary Eugenia, <a href="#Page_3">3</a></li> + +<li class="indx">Sutter, Simon L., <a href="#Page_58">58</a></li> + +<li class="indx">Swanson, Martin, <a href="#Page_38">38</a></li> + +<li class="indx">Sweeney, Richard, <a href="#Page_17">17</a></li> + +<li class="indx">Sykes, Frank, <a href="#Page_130">130</a></li> + +<li class="indx">Synagogue Council, <a href="#Page_221">221</a></li> + + +<li class="ifrst">T</li> + +<li class="indx">Talmadge, Herman E., <a href="#Page_225">225</a></li> + +<li class="indx">Taylor, Mark, <a href="#Page_130">130</a></li> + +<li class="indx">Taylor, Roy A., <a href="#Page_225">225</a></li> + +<li class="indx">Thayer, Webster, <a href="#Page_75">75</a></li> + +<li class="indx"><i>The Peoples of the Soviet Union</i>, <a href="#Page_196">196</a></li> + +<li class="indx">Thomas, J. Parnell, <a href="#Page_142">142</a></li> + +<li class="indx">Thompson, Jack R., <a href="#Page_110">110</a></li> + +<li class="indx">Thompson, William G., <a href="#Page_77">77</a></li> + +<li class="indx">Tidwell, Arthur J., <a href="#Page_130">130</a></li> + +<li class="indx">Tiller, Jack, <a href="#Page_121">121</a></li> + +<li class="indx">Timberlake, Martha, <a href="#Page_58">58</a></li> + +<li class="indx">Touloukian, Edward H., <a href="#Page_157">157</a></li> + +<li class="indx">Tracy, William S., <a href="#Page_67">67</a></li> + +<li class="indx">Treanor, Nicholas Hugh, <a href="#Page_57">57</a></li> + +<li class="indx">Turner, W. E., <a href="#Page_32">32</a></li> + +<li class="indx">Tydings, Millard, <a href="#Page_195">195</a></li> + + +<li class="ifrst">U</li> + +<li class="indx">Union Street Benevolent Society, <a href="#Page_218">218</a></li> + +<li class="indx">Unitarian Universalist Association, <a href="#Page_225">225</a></li> + +<li class="indx"><i>United States v. Emspak</i>, <a href="#Page_205">205</a></li> + +<li class="indx"><i>U.S.S.R.--a Concise Handbook</i>, <a href="#Page_198">198</a></li> + + +<li class="ifrst">V</li> + +<li class="indx">Vahey, J. P., <a href="#Page_76">76</a></li> + +<li class="indx">Van Amburgh, Charles, <a href="#Page_85">85</a></li> + +<li class="indx">Vanzetti, Bartolomeo, <a href="#Page_74">74</a></li> + +<li class="indx">Vaughan, Earl J., <a href="#Page_89">89</a></li> + +<li class="indx">Vendrell, Jose Broccado, <a href="#Page_189">189</a></li> + +<li class="indx">Victorson, Alexander G., <a href="#Page_79">79</a></li> + +<li class="indx">Vidovich, Peter, <a href="#Page_44">44</a></li> + +<li class="indx">Vinson, Fred, <a href="#Page_193">193</a></li> + +<li class="indx">Vitale, William J., Jr., <a href="#Page_216">216</a></li> + + +<li class="ifrst">W</li> + +<li class="indx">Wade, Herbert C., <a href="#Page_41">41</a></li> + +<li class="indx">Wade, Lewis L., <a href="#Page_69">69</a></li> + +<li class="indx">Wadleigh, Henry Julian, <a href="#Page_159">159</a></li> + +<li class="indx">Wann, C. A., <a href="#Page_129">129</a></li> + +<li class="indx">Wann, M. L., <a href="#Page_122">122</a></li> + +<li class="indx">Ward, Anna, <a href="#Page_18">18</a></li> + +<li class="indx">Ward, Louis H., <a href="#Page_64">64</a></li> + +<li class="indx">Ware, Harold, <a href="#Page_139">139</a></li> + +<li class="indx">Warren, Earl, <a href="#Page_207">207</a>, <a href="#Page_221">221</a></li> + +<li class="indx">Washington, George, <a href="#Page_166">166</a></li> + +<li class="indx">Watkins, Arthur V., <a href="#Page_204">204</a></li> + +<li class="indx">Watson, Tom, <a href="#Page_34">34</a></li> + +<li class="indx">Weems, Charlie, <a href="#Page_122">122</a></li> + +<li class="indx">Weichmann, Louis J., <a href="#Page_3">3</a></li> + +<li class="indx">Weinberg, Israel, <a href="#Page_39">39</a></li> + +<li class="indx">Weinfeld, Edward, <a href="#Page_207">207</a></li> + +<li class="indx">Welch, Joseph N., <a href="#Page_203">203</a></li> + +<li class="indx">Welch, Robert, <a href="#Page_226">226</a></li> + +<li class="indx">Wermerskirch, W. M., <a href="#Page_15">15</a></li> + +<li class="indx">Westmoreland, W. F., <a href="#Page_33">33</a></li> + +<li class="indx">Wheeler, William, <a href="#Page_153">153</a></li> + +<li class="indx">White, Byron R., <a href="#Page_223">223</a> (fr)</li> + +<li class="indx">White, Walter, <a href="#Page_105">105</a></li> + +<li class="indx">Whitman, Walt, <a href="#Page_23">23</a></li> + +<li class="indx">Wiget, E. F., <a href="#Page_18">18</a></li> + +<li class="indx">Wilde, Oscar, <a href="#Page_34">34</a></li> + +<li class="indx">Williams, Eugene, <a href="#Page_122">122</a></li> + +<li class="indx">Williams, G. Mennen, <a href="#Page_136">136</a></li> + +<li class="indx">Williams, Harold P., <a href="#Page_77">77</a></li> + +<li class="indx">Williams, John Bell, <a href="#Page_225">225</a></li> + +<li class="indx">Williams, John D., <a href="#Page_93">93</a></li> + +<li class="indx">Williams, Paul W., <a href="#Page_208">208</a></li> + +<li class="indx">Wilson, Woodrow, <a href="#Page_62">62</a></li> + +<li class="indx">Witt, Nathan, <a href="#Page_138">138</a></li> + +<li class="indx">Wittenberg, Philip, <a href="#Page_197">197</a></li> + +<li class="indx">Wohlford, Robert, <a href="#Page_147">147</a></li> + +<li class="indx">Womack, L. B., <a href="#Page_130">130</a></li> + +<li class="indx">Woodall, Arthur W., <a href="#Page_126">126</a></li> + +<li class="indx">Wright, Andy, <a href="#Page_122">122</a></li> + +<li class="indx">Wright, Roy, <a href="#Page_122">122</a></li> + +<li class="indx">Wright, S. S., <a href="#Page_108">108</a></li> + +<li class="indx">Wright, Wade, <a href="#Page_129">129</a></li> + +<li class="indx">Wylie, Andrew, <a href="#Page_22">22</a></li> + + +<li class="ifrst">Y</li> + +<li class="indx">Yakovlev, Anatoli A., <a href="#Page_171">171</a></li> + +<li class="indx">Young, James P., <a href="#Page_19">19</a></li> + + +<li class="ifrst">Z</li> + +<li class="indx">Zabotin, Nicholai, <a href="#Page_170">170</a></li> + +<li class="indx">Zwicker, Ralph W., <a href="#Page_197">197</a></li> +</ul> + +<hr class="full"> + +<div class="transnote"> + +<p class="c">Transcriber’s Notes:</p> + +<p>Variations in spelling and hyphenation are retained.</p> + +<p>Perceived typographical errors have been changed.</p> + +</div> + +<div style='text-align:center'>*** END OF THE PROJECT GUTENBERG EBOOK 78229 ***</div> +</body> +</html> diff --git a/78229-h/images/cover.jpg b/78229-h/images/cover.jpg Binary files differnew file mode 100644 index 0000000..d613d6d --- /dev/null +++ b/78229-h/images/cover.jpg diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6c72794 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This book, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..a31a2d7 --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for eBook #78229 +(https://www.gutenberg.org/ebooks/78229) |
