*** 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 ***