User:Noleander/draft564

Thesis on Sacher
2011 thesis:

Defining American Freedoms: Jurists Respond to the American Communist Party Trial 1948-1952 April, 2011 Yesol Han Thesis Advisor: Professor Mae Ngai Second Reader: Professor Allan Brinkley Contempt sentences to the defense counsel were affirmed by the Supreme Court in 1952 in Sacher v. United States, which ―sent a deep chill through the legal profession.‖ It also aggravated the ―problem of legal representation for unpopular clients…. as the organized bar abandoned its obligation to provide council for all defendants.‖ 13 By examining the Sacher case, I argue that the language of security was used to convict not only the communists but also the liberal lawyers who defended them. I also argue that organized bar‘s inadequate reactions to the contempt charges represent the lack of legal leadership the nation was experiencing. It also aggravates the problem of lawyers not willing to represent unpopular clients. My project hopes to raise important questions about the American legal system at a professional level and to contribute to an unexplored field of research

From p 40 - 50 approx:

Attorney Isserman was the first to protest against the Court after Medina announced the contempt charges on October 14. Isserman immediately argued that the judge‘s action was ―a reflection of the atmosphere of bias and prejudice which [the] Court [had] shown and with which this entire trial was attended from the very first day,‖ and ―an effort to intimidate members of the bar in their bounden duty to represent their clients to the best of their ability.‖ 101 Following Isserman, Harry Sacher stated that although he recognized the Judge‘s power to ―act summarily,‖ the defense counsel deserved, for the sake of decency, ―an opportunity to be 98 Medina, Anatomy of Freedom, 11. 99 Historian Ellen Schrecker recounts her encounter with Judge Medina at a dinner party in 1960s, long before she started her research on McCarthyism. Schrecker, Many are the Crimes, 198. 100 Medina, Anatomy of Freedom, 13. 101 Court Transcript 16,130, Volume 24, Box 213, Medina Collection.45 heard before [they] were adjudged guilty and sentenced.‖ 102 Furthermore, emphasizing his love for the country and its freedoms, he also said that he was serving the public interest: I have an abiding faith that the time will come when it will be appreciated that counsel in this case served not only their clients, not only the due administration of justice, but served all the people of our country… the fact is that we six counsel yield to no one in love of country and in love of the constitutional liberties which we have learned to love and to seek to preserve. After Sacher‘s speech, the judge responded, with a clear implication that he intended to make an ―example‖ out of them to prevent future cases: Let them be notice to you and to all who may be tempted to follow your example that there is power in the judicial system of the United States under the Constitution and the laws of the United States to protect and maintain the dignity of the court and the orderly administrative of justice therein. Sacher responded that the only effect the charges had is the intimidation of the Bar of America. Arguing ―a country with an intimidated bar is a country whose liberties are in danger,‖ he said, your Honor, with all due respect to your decision and judgment here that any threat to the integrity, independence, and courage of the bar can only constitute a threat to the integrity and wholesomeness and preservation of our civil liberties‖ 103 Following Sacher, Gladstein, Crockett, and McCabe argued that they committed no contempt of court and had done no more than defending the rights of their clients. 104 Finally, Eugene Dennis got a chance to respond to Medina‘s contempt charges. He stood up and accused the government of the United States of conspiracy. Declaring that the trial was ―an evil and an illegitimate product of a bipartisan conspiracy‖ to destroy the Bill of Rights and peace, he also added that the contempt sentencing was ―in keeping with the sinister and police state character of this trial.‖ 105 102 Court Transcript 16137, Volume 24, Box 213, Medina Collection. 103 Court Transcript 16139-16140, Volume 24, Box 213, Medina Collection. 104 Court Transcript 16141-16146, Volume 24, Box 213, Medina Collection. 105 Court Transcript 16147, Volume 24, Box 213, Medina Collection. 46 Main Issues in the Contempt of Court Charges The contention of the judge that the communists were deliberately trying to delay the trial is a valid one. Whether that act of trying to delay the trial obstructs justice or not is a different question, and whether such behavior deserves a summary contempt sentencing is yet another question. In the perspectives of the defense attorneys, delaying was an essential part of their right to a fair trial. The problem of Medina‘s argument that delays obstruct administration of justice is that it assumes delaying was antagonistic to justice. It defines justice as the verdict, not so much the process. Moreover, it assumes that a criminal trial should be conducted in a speedy manner toward that end result. The ―right to a speedy trial,‖ however, is a right of the defendant, not the government. 106 To be fair, the judge did conduct the trial for nine months, which is an unusually long period of time. However, as Justice Charles Edwards Clark at the Second Appellate Court later wrote in his dissenting opinion of Sacher et al., v. United States, ―from the moment the prosecution planned to try so many defendants together on a charge of this nature, it was obvious to all but the most naïve…that trial would be extraordinarily difficult.‖ The difficulty of the trial was Medina‘s burden from the beginning. There was no reason why the defense should have made the job easier for the judge at the expense of their own chances to win the trial. Due process of law must always exist for the defendant, not for the judicial branch and certainly not for the prosecution. It is difficult, however, to evaluate whether the efforts of the defense to delay the trial was reasonable or contemptuous. But even if the efforts to delay were not reasonable and contemptuous, the important thing about the Sacher case is that the trial did come to an end 106 6 th Amendment of the United States Constitution.47 despite those acts, with an end result Medina would have supported. In other words, from Medina and the government‘s perspective, justice had triumphed. The contempt charges, then, punish not the actual act to obstruct justice but the attempt and intent to obstruct justice. This is surprisingly similar to the logic of the indictment against the communists itself, which charged against the intent, not acts, of the communists to overthrow the government. There was an obvious difference between grand jury indictments and Medina‘s contempt charges. The former got a trial, while the latter got none. In fact, the question of whether the defense deserved an opportunity to be heard in front of another judge was the most important issues at the appellate courts. Clark argued that because it was so hard to prove conspiracy or intent to obstruct justice, the defendants deserved a hearing and due process of law. Moreover, Clark pointed out that the charges are based on ―colloquy with the judge—in which the judge participated—to the point of exasperation,‖ and argued that it is difficult to conclude that colloquy had been planned in advance. 107 Justice Frankfurter at the Supreme Court also thought this was the case. In his dissenting opinion, he pointed out that the excerpts in Medina‘s certificate were ―too brief‖ to construct the whole picture of the trial. Moreover, he argued, ―the judge felt deeply involved personally in the conduct for which he punished the defense lawyers‖ and the judge had acted as a ―prosecuting witness.‖ 108 Finally, Frankfurter argued, The conduct of the lawyers had its reflex in the judge. At frequent intervals in the course of the trial, his comments plainly reveal personal feeling against the lawyers, however much the course of the trial may have justified such feeling. On numerous occasions, he expressed his belief that the lawyers were trying to wear him down, to injure his health, to provoke him into doing something that would show prejudice, or cause a mistrial or reversal on appeal. 109 107 182 F.2d 416 (1951), 658. 108 343 U. S. 1 (1952), 35. 109 343 U. S. 1 (1952), 34.48 By expressing that both sides of the parties have done some wrong, Frankfurter argued that the lawyers deserved to be heard by another trial by jury. Justice Douglas agreed with Frankfurter that the record left ―difficulty in determining whether members of the bar conspired to drive a judge from the bench or whether the judge used the authority of the bench to whipsaw the lawyers, to taunt and tempt them, and to create for himself the role of the persecuted.‖ Douglas also ―reluctantly concluded that neither is blameless, that there is fault on each side, that we have here the spectacle of the bench and the bar using the courtroom for an unseemly demonstration of garrulous discussion and of ill will and hot tempers.‖ 110 Clark, Black, Douglas, and Frankfurter all believed that, because it was not obvious that the defense counsel had conspired, the attorneys deserved to have the due process of law and have a full hearing by another judge. Finally, perhaps the most important significance of summary contempt charges is that it targets the future rather than the present. Clark pointed out the ―difficulty of securing counsel to defend adequately unpopular minority groups,‖ and expressed a fear that the contempt charge may aggravate the situation: ―we cannot afford to overload the sacred responsibility of providing adequate defense for all to the point where it cannot practically be fulfilled.‖ 111 Justice Frank at the Second Circuit Court thought differently. In his concurring opinion to Justice Hand‘s majority opinion at the circuit court, although he agreed that summary contempt has ―none but a future effect,‖ he argued that the future effect would be a positive and also a necessary one: Preservation of liberties of citizens, when on trial for crimes charged against them, demands order in the courtroom. Absent such order, no trial can be fair. More important, if criminal trials cannot go on in orderly fashion, then the defendants, if unpopular or if members of minority groups, may become the victims of that monstrous substitute for trials—mob violence. 112 110 343 U. S. 1 (1952), 89. 111 182 F.2d 416 (1951), 659. 112 182 F.2d 416 (1951), 615.49 Here, Frank turned the minority argument around to suggest that having ―order in the courtroom‖ is in fact protective of the liberties of citizens and their right to due process of law. This is very reminiscent of the logic of security played out in convicting the eleven party leaders. Both sides agreed that Medina had the power to keep order in the courts by issuing contempt charges. They also agreed that the duty to protect civil liberties of American citizens is as important as the duty to keep order in the courts. They diverged on the point whether the counsel had a right to the regular due process of law. They further disagreed in their assessment of the pressing legal problem: while some justices thought the problem of disorderly and confrontational attorneys was more pressing, others believed the difficulty of providing counsel for all clients, including politically unfavorable clients, had become very serious and threatening. The final outcome of the Sacher et al. v. United States, though, gave Medina his victory, as the judge‘s absolute power in the courtroom trumped the attorneys‘ rights to the due process of law

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Many bar associations supported Medina and the government‘s victory. Immediately after the Foley Square trial, the New York County Criminal Courts Bar Association nominated Medina and McGohey, the chief attorney of the federal prosecutor, for its annual distinguished service award, an award given to those who did ―most to enhance public respect for the administration of American criminal justice.‖ 114 Truman nominated McGohey for Federal Judgeship on January, 1950, and McGohey became a permanent federal judge by March of that year. 115 On November 21, 1949, Judge Medina won one of the $1,500 cash prizes at the first annual Freedom Foundation Awards ceremony. General Dwight D Eisenhower, then president of 114 ―Bar Hails Judge and Prosecutor in Trial of Reds,‖ Chicago Daily Tribune, October 17, 1949. 115 Walter H. Waggoner, ―McGohey Is Named Federal Judge; Hastie First Negro in Appeals Court,‖ The New York Times, October 16, 1949; ―M‘Gohey Gets Judgeship,‖ The New York Times, October 22, 1949; ―Senate Confirms Six U.S. Judges, Other Nominees,‖ The Washington Post, March 9, 1950.52 Columbia University, who presided over the award ceremony, declared that ―the American dream, with worthy disciples, can and will survive every threat and challenge.‖ 116 The members of the jury kept silent after the trial, following the agreement they had among themselves even before the admonition by Medina to not talk about the trial after its termination. The individual jurors refused to disclose any information about the discussions leading up to the final verdict. 117 Still, it is surprising how the press focused exclusively on Medina. Clearly, the triumphant hero of the trial was neither the government nor the jurors but the presiding judge. He came to personify the concept of American justice in the minds of public, and his supposed character integrity, patience, and fairness came to represent the characteristics of American judicial system. This chapter will first examine what ordinary Americans and jurists wrote to Medina. In doing so, it explicates sometime conflicting responsibilities of an attorney—that of a zealous advocate and that of an officer of the court. Finally, it will discuss the reactions of bar groups and individuals in response to the contempt sentencing. America Writes to Medina Thirty thousand Americans wrote to Medina in the first three days after the trial; twenty thousand more wrote in the few weeks following. 118 A meticulous collector, Medina initially saved the letters he received during the trial in scrapbooks. Later, he started keeping them in folders dated by months. Perhaps overwhelmed by the high volume of letters that flooded his mailbox after the trial, he left those in untitled folders. The letters were from various peoples all over the country. Some typewritten and others handwritten, in the form of letters, cards, and 116 William G. Weart, ―Freedom Group Honors Our Way,‖ The New York Times, November 22, 1949. 117 ―Jurors are Silent After Dismissal: They Had Decided Not to Talk, Even Before Admonition by the Trial Judge,‖ The New York Times, October 15, 1949. 118 ―Letters, 50,000 of Them, Fall Like Leaves to Cover Weary Judge Medina at Trial‘s End,‖ The New York Times, November 8, 1949.53 telegraphs, those in Medina‘s collection were overwhelmingly supportive and congratulatory. There was only one small paper-case titled ―unfavorable‖ correspondences with three skinny folders. Medina probably threw out most of the unfavorable messages, but it is also possible that the letter writing efforts of those antagonistic to Medina were directed elsewhere, perhaps to Truman and other politicians. Regardless, the sheer volume of congratulatory remarks is impressive, and Medina and his secretary‘s attempt to reply to more than a third of them is equally impressive. Copies of these sometimes very brief thank you notes were all kept in alphabetical order in one of the boxes. Businessmen of all sorts, bankers, real estate agents, churches, newspapers, anticommunist organizations, and lawyers wrote to him with letterheads identifying their trade in life. Private citizens, many of them women, also wrote to him in large numbers. Almost all identified themselves as ordinary citizens of the United States. Some encouraged by their local newspapers and others believing that it was their civic duty, all felt the need to let the judge know just how much they appreciated and admired his efforts throughout the trial. 119 Aside from expressing the relief or pleasure to see the Communists sentenced guilty, the letter-writers were impressed by Medina as a man, a Christian, a jurist, and a citizen. They connected to him on a personal level and looked up to him as a role model with an exemplary character. An anonymous lawyer who identified himself as ―Boston lawyer‖ sent a short note to Medina after the trial. Although the lawyer disagreed with the Smith Act and the trial‘s rulings because de facto outlawing of the Communist Party will force the Party to go underground, which he deemed would be more dangerous, the lawyer nonetheless concluded, ―But I‘m writing 119 Scrapbooks of correspondences during the trial is found in Box 17-18; The letters after the end of the trial can be found in untitled folders in Box 76; letters labeled as complimentary and unfavorable are also found in Box 348. Medina Collection.54 this card to express admiration for your guts (if I may be allowed) in punishing the lawyers… I used to wonder how you could keep sane and so calm. Bravo.‖ 120 Many other lawyers wrote to Medina to express their professional backing to his decision to sentence contempt to the defense counsel. A New York lawyer, Richard A. Julian, wrote, “You are, not only a credit to the legal profession, but also a credit to everything this country stands.” 121 Praising Medina’s conduct throughout the trial as “a matter of pride to lawyers everywhere,” Morris Smith from Pennsylvania commented that “disgraceful actions of counsel for the defendants and their unwarranted attacks” should be dealt with “proper disciplinary body.” 122 James E. Lyons from San Francisco also suggested that “those contemptuous ‘lawyers’” were put to “where they belong.” 123 Harry J. Gerrity, counselor of law from Washington DC, assured, “I am sure the legal profession, as well as a vast majority of the public, and also posterity, will commend you for this courageous and highly appropriate action.” He also articulated an important concept that explains why so many members of the bar were supportive of the contempt charges: “In the trial of cases, lawyers should remember, first and last, that they are officers of the Court.‖ 124 Couple of lawyers expressed disapproval. Attorney William Crosby argued, ―The principle that an attorney defending his client shares his client‘s guilt is new to our law. Unless you promptly reverse your vindictive ruling and declare a mistrial you will be guilty of a crime against American freedom which society will never allow you to forget.‖ 125 Abe Weitzman, who identified himself as a member of the New York Bar, wrote to Medina and protested that the 120 Untitled Folder, Box 76, Medina Collection. Dated October 15. 121 Ibid., Dated October 14, 1949 122 Ibid., Dated October 14, 1949. 123 Ibid., Dated October 14, 1949. 124 Ibid., Dated October 14, 1949 125 Ibid., Dated October 15, 194955 ―contempt jailing of the attorneys‖ would set ―dangerous precedent‖ to ―hinder or prevent future defense in unpopular courses urge you reconsider your decision.‖ 126 Zealous Advocate and Officer of the Court Indeed, an attorney is an ―officer of the court,‖ and, at the same time, he must act as a zealous advocate of his client. Sometimes these two responsibilities co-exist harmoniously, but other times they conflict. 127 The American Bar Association‘s Rules of Professional Conduct, which defines a lawyer‖ as ―a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice,‖ addresses the problem of conflicting responsibilities in the ninth preamble: …Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living.… Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. 128 The code is ambiguous and it doesn’t really provide useful directions to which responsibility should be weighed more when they do conflict. This is precisely the point of tension the contempt charges produced. Those who supported Medina’s contempt charges clearly thought 126 Ibid., Dated October 14, 1949. 127 Chapter title inspired by Chapter II ―Zealous Advocate and Officer of the Court: Are the Two Roles Mutually Exclusive?‖ in Christopher W. Deering, ―Candor Toward the Tribunal: Should an Attorney Sacrifice Truth and Integrity for the Sake of the Client,‖ Suffolk University Law Review Vol. XXXI: 59 (1997): 64-66. For general discussion of the subject, see Eugene R. Gaetke, Lawyers as Officers of the Court, 42 Vanderbuilt Law Review (1989). 128 Emphasis added. ABA Model Rules of Professional Conduct, http://www.law.cornell.edu/ethics/aba/current/ABA_CODE.HTM#Preamble,%20Scope%20and%20Terminology, (03/01/2011).56 that the defense lawyers not only over-stepped the boundaries of propriety but also were violating their duty to the legal system. Those who condemned the contempt charges believed that the lawyers were acting out their responsibility to zealously represent their clients to their best ability. Both sides believed that their position contributed to the public good—fostering American liberty and justice. In some ways, the logic of the tension embedded in the content of the Communist trial itself—the broad conflict between national security and civil liberties—was replicated in the courtroom. In a weird way, there was an obvious parallel between the contentions between the government and the communist leaders and those between the trial judge and the defense counsel. The government and the trial judge argued for keeping security and order, while the communists and the defense council championed the arguments for civil liberties. Campaign to Defend the Defense Although many bar associations supported the contempt charges, many others were alarmed. ―A great deal of interest by members of the legal professions as well as nonmembers has been evident during the Communist conspiracy trial in the conduct of the defense lawyers.‖ 129 Aside from the Communist Party and its press that condemned the contempt charges, some labor groups such as United Office and Professional Workers of America, CIO, and the national organizing conference for a labor youth league denounced the verdict and the jailing of defense attorneys as ―hysterical.‖ 130 The National Lawyers Guild, a bar organization dedicated to progressive ideals, declared that the contempt ―sentences are a matter of grave concern to the Bar 129 Lawyers Facing Bar Discipline: Disbarment of Five Defense Counsel by Associations May Follow Inquiry‖ New York Times, October 15, 1949. 130 ―Bar Hails Judge and Prosecutor in Trial of Reds,‖ Chicago Daily Tribune, October 17, 1949.57 and the people as they appear to place in jeopardy the people‘s right to effective representation, and the attorney‘s right and duty of vigorous advocacy.‖ 131 On December 19, 1949, the Civil Rights Congress of New York State threw a dinner party for the defense counsel. Two hundred fifty people attended, and four of the five defense attorneys also attended (Gradstein remained in his home state, California). At the dinner, Crockett commented that freedom of the entire bar was at stake in the sentencing of counsel. Remarking on a few contempt citations as well as disbarment of other labor and minority attorneys at the time, Sacher commented that the ―sinister pattern‖ was the proof of ―a battle between judicial tyranny and the people of America.‖ 132 On January 31, 1950, a week before the hearing at the Second Circuit Court of Appeals, sixteen intellectuals including Albert Einstein and Dr. Thomas Mann issued a statement. Noting that ―lawyers in various parts of the country who dare to defend clients representing minority views are suffering punishment which strikes at their professional lives and their freedom,‖ the group warned that recent ―acts of judicial censure, imposition of prison sentences and threats of disbarment‖ against legal representatives of minorities ―might destroy the right to a fair trial and adequate legal counsel‖ guaranteed by the American Constitution. 133 One of the sixteen who signed the statement, Professor Thomas Emerson of Yale Law School issued another statement on February 2, 1950, that the contempt charges against the defense of the Communist Party leaders presented ―grave national dangers.‖ The statement was read in his absence at the rally 131 ―Lawyers Guild Raps Contempt Action,‖ Philadelphia Tribune, October 22, 1949. 132 ―Red Trial Counsel Honored at Dinner,‖ New York Times, December 19, 1949. 133 National Lawyers Guild Collection, Box 39, Folder 24, NYU Tamiment Library; ―16 Score Conviction of Counsel For Reds,‖ The New York Times, Feb 1, 1950;Other people who signed the statement were Bishop Cameron Chesterfield Alleyne, Early B. Dickerson, Olin Downes, Professor Thomas Emerson, Judge Norval K. Harris, Dr. John A. Kinsbury, Professor Robert Lynd, Carey McWilliams, Professor Kirtlet Mather, Professor Philip Morrison, Professor Linus Pauling, Dr. Walter Rautenstrauch, I.F. Stone, and Professor Colstone E. Warne.58 titled ―In Defense of the Right to Defend,‖ a fundraising rally held in Manhattan on behalf of the six who were held under contempt. 134 The language of these statements against the contempt charges employs the language of security in an interesting way. The proponents of civil liberties had turned to defensive tactics. Instead of insisting on the pure values of freedom and civil liberties, the defense for the defense had to redefine the concept of ―security‖ to argue that civil liberties were in fact conducive of security. This shows that the logic of security had already won a firm public appeal by this time. Despite these efforts to turn public opinion in favor of the defense counsel, the courts and the general public were unsympathetic. On February 6, 1950, the Sacher case was argued in the Second Circuit United States Court of Appeals. Two months later in April 5, 1950, the court upheld Medina‘s charges in a two to one decision. Within a year, the defense would get one last chance to argue on January 9, 1952. On March 10, the Supreme Court of the United States once and for all upheld Medina‘s Charges, and the attorneys subsequently served their sentences. Handcuffed Attorneys 135 134 ―Reds‘ Counsel Defended: Prof. Emerson of Yale Law Calls Conviction

Thesis appeal material p 60 to 68 ---

IN DEFENSE OF THE RIGHT TO DEFEND On September 19, 1951, President Truman wrote a letter to the Criminal Law Section of the American Bar Association. Read aloud during a session on ―The Protection of Individual Rights and Government Security in Times of Stress,‖ Truman‘s letter argued that the bar had a ―moral responsibility‖ to assist and provide services to ―all defendants, including persons accused of such abhorrent crimes as conspiracy to overthrow the Government by force, espionage, and sabotage.‖ Even though ―uninformed persons will always identify the lawyer with client,‖ preserving the tradition of fair trial was more important. Truman warned that ―unless [the lawyers] continue to [represent all clients] in the future, an important part of our rights will be gone.‖ 136 The problem Truman was alluding to was the shortage of lawyers willing to defend unpopular clients. 136 ―President‘s Letter on Rights and Security,‖ New York Times, September 19, 1951.61 This chapter will identify this problem further, and try to explain why the legal professions abandoned its duty to represent all clients. In doing so, it exposes how the legal world was complicit in McCarthyism and how McCarthyism pervaded in the legal system of the United States. The National Lawyers Guild, a national bar association whose primary objective is ―the promotion and advancement of the administration of justice‖ and ―the defense of the civil rights guaranteed by the Constitution,‖ filed a Motion for Leave to File Brief as Amicus Curiae to the Supreme Court of the United States on behalf of Harry Sacher et al. 137 In the motion, the Guild argued, ―It has become most difficult for unpopular minority groups to secure counsel for their defense in serious criminal prosecutions now pending.‖ As evidence, it presented the situation of Flynn et al. v. United States. Flynn was a Smith Act trial that was a direct replica of the Dennis case. Seventeen second-string Communist Party leaders, including Elizabeth Gurley Flynn, had been indicted immediately after Dennis was legitimized by the Supreme Court of the United States in the summer of 1951. The group struggled to secure a counsel to represent them. According to the Guild, ―a large number of prominent numbers of the Bar to represent the defendants‖ declined their request for representation. Some attorneys declined saying that they did not want to ―risk disfavor of their clients and the public by appearing in their case.‖ 138 Various Civil Rights Committee of the major bar associations were also solicited, but they, too, declined. This failure to secure defense counsel forced the District Judge Sylvester Ryan to take an ―unprecedented step of formally calling upon the 4 major bar associations in New York City (The Association of the Bar, the New York Country Lawyers 137 Undated draft (presumably sometime after September 1951 and before April 1952) of ―Motion for Leave to File Brief as Amicus Curiae to the Supreme Court of the United States,‖ Box 39, Folder 24, National Lawyers Guild Collection, NYU Tamiment Library. 138 Ibid., 3. (Footnote 2 in the draft citing the facts from affidavits filed on July 16, 1951 in U.S. v. Flynn et al.)62 Association, the New York Chapter of the National Lawyers Guild and the Brooklyn Trial Lawyers Associations) to submit names of attorneys whom they felt would agree to represent these defendants.‖ At the time, 20,000 lawyers were registered in the Southern District of New York, most of whom belong to one of those four bar associations. 139 The four associations, however, were ―only able to submit a total aggregate list of ten names of lawyers who would handle this case.‖ 140 Only one trial lawyer from this list of ten had agreed to represent one of the 17 defendants. 141 Although the Guild recognized that ―fear of punishment for contempt‖ was not the only reason why lawyers during this time were reluctant to represent communists or other unpopular clients, it insisted that ―one cannot say that the fear of the action of the court has not been a significant contributing factor.‖ 142 All opponents of Medina‘s contempt sentencing seem to associate the sentencing with the problem. Although they did not necessarily suggest a causal relationship between the two, they all warned that the legitimizing the charges would aggravate the already problematic situation. A Timid Bar In her comprehensive book on McCarthyism, Many Are The Crimes, Ellen Schrecker devotes four pages on the legal professions during McCarthyism. In this section, she argues that the main reason the legal professions ―ducked‖ the unpopular clients was economic: True, a few left-wing lawyers did face contempt citations and other types of sanctions, but such punitive measures were rare. What people most feared was the loss of business 139 Ibid., 3. (Footnote 3 citing ―Congressional Record, Feb 14, 1940 at pp. 2253, 2277, 2280. N.Y. State Bar Association Bulletin, Feb 1950, 212.‖) 140 ―Setting Forth the Names of the 10 Attorneys Submitted by the Four NYC Bar Associations,‖ New York Times, August 9, 1951. 141 ―Motion for Leave to File Brief as Amicus Curiae to the Supreme Court of the United States,‖ 3-4. In Box 39, Folder 24, National Lawyers Guild Collection, NYU Tamiment Library. 142 Ibid., 563 and respectability that might occur if clients and colleagues identified them with the pariahs they represented. 143 Although her contention contempt charges was rare or insignificant seems unjustified, especially given the record that there are series of contempt citations and attempts of disbarment of attorneys in this period, her argument that economic disincentive was the most important reason for the legal vacuum is convincing. She also cites a survey in Pittsburgh, which found that 30 percent of the liberal attorneys who took cases involving unpopular clients and over 50 percent of a national control group of lawyers who routinely represented leftists reported significant financial damage to their practice. 144 These political trials often involved working vigorously for a lengthy period of time, with little prospect of winning the case, and with little financial compensation. The opportunity cost was too great for the attorneys, especially considering the possibility of losing existing clients due to reputational damages after representing a communist. The possibility of contempt citations, which could be a jail sentence or a fine, and further disbarment were obviously aggravating the timidity of the group. To some extent, the lawyers that defended the eleven party leaders knew what they were getting into from the very beginning. The only reason they went ahead was that they believed in the political injustice of the indictments. Attorney McCabe, one of the defense attorneys for Dennis et al., later recalled to a student interviewer that he took part in this case because of ―his belief in the underdog and because he felt that the eleven were not receiving fair treatment‖ despite a call he received ―from a friend in the Justice Department telling him that he had no 143 Schrecker, Many are the Crimes, 304. 144 Schrecker, Many are the Crimes, 304.64 chance whatsoever of winning the case and that he was foolish to take it on because of the possible damage to his practice.‖ 145 Guilt by Association Well before Medina’s actual sentencing for contempt, Attorney General Tom Clark, who was waiting to be sworn in as a Supreme Court justice, stated in an interview with the Look Magazine on August 20, 1949, that ―lawyers, … who act like Communists and carry out missions in offensives against the dignity and order of our courts, should be scrutinized by grievance committees of the bar and the courts.‖ Within two days, the defense counsel immediately responded with an open letter to the Look Magazine: ―It would be deplorable commentary upon the state of the public mind if the efforts of defense attorneys to present the contentions of their clients were deemed to be ‗destructive tactics.‘‖ 146 While Clark implied in the statement that not only the lawyers were virtually same as the Communists, the defense insisted that they were representing the defendants. However, the problem of deliberate or misguided confusion between the represented and the representative occurs quite frequently in the minds of the public. This merging of the defense counsel and the communists themselves—united in their efforts to destruct the American government and the judicial system— contributed to the public‘s failure to treat the two cases as separate issues. Medina‘s Contempt Charges and the federal courts‘ upholding of the charges must have only reinforced this perception, which would further discourage the lawyers from representing unpopular clients. 145 Masinter, Dennis v. United States, 51. (Student interviewed McCabe. See footnote 1.) 146 ―Reds‘ Lawyers Reply to Tom Clark‘s Attack,‖ The Washington Post, August 22, 1949.65 The American Civil Liberties Union (ACLU), National Lawyers Guild If individual lawyers abandoned their responsibility to defend unpopular clients primarily due to financial disincentives, prominent Civil Liberties organizations ―shrank from controversy‖ due to internal divisions regarding communism. When the larger organizations, including the American Civil Liberties Union (ACLU) actually took on a case, ―it did so only at the appellate, not the trial, stage, invariably prefacing its briefs with a strong anticommunist disclaimer.‖ 147 When the Dennis trial started in Jan 17, 1949, the ACLU issued a statement opposing the Smith Act of 1940 as ―the only peace-time sedition law in American history since 1798‖ and named the indictment as an ―unwarranted use‖ of such law. Although the institution itself was opposed to communism, it nonetheless accused the government for having ―not a single overt act of any sort‖ charged against the Communists. 148 After the trial ended in October, 1949, the ACLU again issued another statement in favor of bail for the Communists. Besides these few official statements, the ACLU remained inactive. The organization went through a Communist purging in 1940 and subsequently had turned resolutely anti-Communist. The board members were divided and had different opinions about how to respond to Communism or McCarthyism. In 1951, the internal division grew so sharp that a self-proclaimed socialist, Corliss Lamont would quit the board and create his own organization, Emergency Civil Liberties Union (ECLU), in order to combat McCarthyism. 149 When the Supreme Court decided to review Sacher case (reversing its previous decision to not review it), the ACLU issued a statement: ―The ACLU does not contend that the lawyers were not guilty of contempt,‖ but ―the ACLU does believe that the way [the defense attorneys] 147 Schrecker, Many are the Crimes, 303; Mary McAuliffe, Crisis on the Left: Cold War Politics and American Liberals, 1947-1954. (Amherst: The University of Massachusetts Press, 1978): 89-107. 148 ―12 Communist Chiefs in US on Trial Today,‖ The Baltimore Sun, Jan 17, 1949. 149 Correspondences regarding Lamont, Folder 10a, Box 15, American Civil Liberties Union Records, Seeley G. Mudd Manuscript Library, Princeton University.66 were tried [by Medina] was improper. Summary judgment under the circumstances in this case, in which the trial judge against whom the contempt was committed decided the contempt question—without a hearing—is not consonant with the American due process of law.‖ 150 Instead of condemning the contempt charges, it had merely expressed that the attorneys deserve a hearing. Disbarring Lawyers While the ACLU and other liberal legal organizations hesitated, other bar associations started scrutinizing the attorneys and proceeded to disbar them. Attorney Abraham J. Isserman was suspended from practice in 1950 by the Federal District Court for the Southern District of New York. He was also disbarred by New Jersey Supreme Court in 1951, which influenced the Supreme Court of the United States to also disbar him from that Court in a four to four decision. Isserman would not regain his right to practice until 1961, which was a serious economic blow to his professional and personal career. 151 The Bar Association of the City of New York institutied proceedings for the disbarment of attorney Harry Sacher both in the state courts and the federal courts. He was disbarred by the New York State courts, but the Supreme Court of the United States reversed the order, holding that the ―disbarment was too severe‖ in 1954. 152 Committees of the Philadelphia Bar Association examined Louis McCabe, while and the state bars of Michigan and California examined George Crockett and Richard Gladstein. Luckily, all concluded to take no action against the attorney in question. 153 It is surprising that lawyers, presumably ―more sensitive than other Americans to the violations of individual rights that characterized the McCarthy era,‖ were in fact complicit in 150 ―For Due Process in the communist Cases,‖ The Baltimore Sun, Jan 8, 1952. 151 ―Grounds and Procedures for Discipline of Attorneys,‖ Lawyers Guild Review Volume 18 (1958), 68. 152 ―Grounds and Procedures for Discipline of Attorneys,‖ Lawyers Guild Review Volume 18 (1958), 68; ―Court Reverses Sacher Decision,‖ New York Times, May, 20, 1958. 153 ―Grounds and Procedures for Discipline of Attorneys,‖ Lawyers Guild Review Volume 18 (1958), 68.67 McCathyism. 154 Historian Jerold Auerbach criticizes the legal elite for doing nothing other than ―rhetorical obeisance to the lawyers' responsibility‖ during the Cold War. 155 The bar associations and organizations inactively watched the National Lawyers Guild get ―almost destroyed by HUAC and the courts‖ and were complicit ―in the spread of loyalty oaths within the profession.‖ 156 Some states likes Maryland and New Jersey started requiring loyalty tests for the admission of bar. Many other states like California imposed various measures to prevent Communists from becoming lawyers and to ―force out‖ those who had already gained entry. 157 Were the contempt of court sentencing and disbarments intimidating to lawyers? Probably. To what extent these incidents discouraged the lawyers cannot be known. One thing, however, is clear. The upholding of the contempt sentencing in the upper courts, coupled with various efforts of the organized bar to disbar the attorneys, clearly communicated to the legal world a lack of leadership from the left. As the judicial branch, judges who should be leaders of lawmaking through the courts, sided with anti-Communist rulings, it would have worsened the already existing problem of a legal vacuum in representing unpopular clients. National Lawyers Guild While others kept silent or hostile to the communists, the National Lawyers Guild defended the civil liberties issues alone. When the defense counsel immediately started their prison sentence, the Guild distributed a letter, dated March 19, 1952, from Attorney Harry Sacher to its members. The letter sent out to the Guild members highlighted a particular paragraph in Sacher‘s letter: 154 Schrecker, Many Are the Crimes, 301. 155 Jerold Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976). 156 Terence Halliday, ―Idiom of Legalism in Bar Politics: Lawyers, McCarthyism, and the Civil Rights Era,‖ American Bar Foundation Research Journal (Fall 1982): 915. 157 Belknap, Cold War Political Justice, 22068 I think it of the first importance that [his application and release] be brought to the attention of the bar of New York in particular and the people generally, so that as many people as possible will speak out and write on my behalf to the Parole Board in Washington. Needless to say, that Board will attach the greatest weight to the opinions of important people. A terrific showing in support of my parole may not only result in my early release, but in preserving me from greater misfortune. On May 28, 1952, Karl B. Dickerson, the President of the Guild sent a letter to the Board of Parole to point out that attorney Sacher had ―practiced law for more than 25 years without ever being subjected to judicial censure for his professional conduct‖ and argued that ―the sentence imposed upon him grew out of a trial which was unprecedented in the tensions it generated.‖ 158 Another member of the Guild, Mark Lane, Bennet Olan, and a few others wrote to the Board of Paroles on Sacher‘s behalf. However, the folder only carries a handful of copies of letters the members have sent. It is possible that the members of the Guild had sent the letters and forgot to send a copy to the Guild, but it seems the letter-writing campaign was unimpressive. Certainly, it was not successful, and Sacher would remain in prison for the duration of his sentence. Although clearly aware of the problem of the shortage of lawyers willing to defend unpopular clients, the bar remained overwhelmingly timid in this time period. This demonstrates the powerful force of McCarthyism that has infiltrated not only the executive and the legislative but also the judicial branch in the United States.

William and Mary Law Review
William and Mary Law Review Volume 8 | Issue 3 Article 6 Congressional Investigations: Imbroglio in the Court Kent B. Millikan

http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3060&context=wmlr&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3D%2522dennis%2520v.%2520united%2520states%2522%2520%2522yates%2520v.%2520united%2520states%2522%2520sacher%26source%3Dweb%26cd%3D6%26ved%3D0CEUQFjAF%26url%3Dhttp%253A%252F%252Fscholarship.law.wm.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D3060%2526context%253Dwmlr%26ei%3D_j5rT7GGBeatiQLa2JWgBQ%26usg%3DAFQjCNFPSP7yZNgIUUsJplZUtFjnoDd_VQ#search=%22dennis%20v.%20united%20states%20yates%20v.%20united%20states%20sacher%22

Footnote: p 416: NOTE: not the same Sacher appeal: Other cases  reversing  contempt  convictions  for  lack  of pertinency  are:  Sacher  v. United  States,  356  U.S.  576  (1958)  (questions  posed  by  Internal  Security  Subcommittee of  the  Senate  Committee  on  the Judiciary  were  not within its  scope  of inquiry),

Footnote: p 410: tion of the records. Dennis v.  United  States,  339  U.S.  162  (1950). (Presence on  jury  of  government employees  was not  a denial  of petitioner's  right to an impartial  jury);

Footnote: p 408: Contempt convictions  of  high-ranking  Communist  Party  officials  arising  from 1947 hearings  include  United  States  v.  Josephson,  165  F.2d  82  (2d  Cir.  1947),  cert. denied, 333 U.S.  838  (1948);  Dennis  v.  United  States,  339  U.S.  162  (1950),  Eisler  v

Belknap details
Ency article: "Dennis v. United States" by Belknap in p 258-259 The Oxford companion to the Supreme Court of the United States Oxford Companion to the Supreme Court of the United States Oxford Companions Series Oxford reference online Oxford reference online: Premium collection Oxford reference online premium Authors	Kermit Hall, James W. Ely, Joel B. Grossman Editors	Kermit Hall, James W. Ely, Joel B. Grossman Edition	2, illustrated Publisher	Oxford University Press, 2005 ISBN	0195176618, 9780195176612

- Underling source is: Michal R. Belknap, Cold War Political Justice: The Smith Act, the Communist Party and American Civil Liberties (1977)

341 U.S. 494 (1951), argued 4 Dec. 1950, decided 4 June 1951 by vote of 6 to 2; Vinson for the Court, black and Douglas in dissent, Clark not participating. In Dennis the Supreme Court affirmed the convictions of eleven Communist party leaders for violation of the Smith Act. In the process the Court significantly modified the so‐called clear and present danger test.

The section of the statute at issue in Dennis made it a crime to teach or advocate the violent overthrow of any government in the United States, to set up an organization to engage in such teaching or advocacy, or to conspire to teach, advocate, or organize the violent overthrow of any government in the United States. Although the Smith Act was designed to combat the Communist party, because that organization was closely tied to the Soviet Union and because the United States and the U.S.S.R. were allies during World War II, the government refrained from using the new law against Communists for several years. In the late 1940s, however, Soviet‐American relations deteriorated. President Harry Truman, a Democrat, sought to rally public support for an anti‐Soviet foreign policy by characterizing this conflict as a struggle between communism and freedom, and Republicans responded by castigating him for ignoring the threat posed by domestic communism. Under intense political pressure to prove that the Truman administration was not soft on communism, Justice Department lawyers obtained indictments on 20 July 1948 charging the members of the Communist party's national board with violation of the Smith Act's conspiracy provisions.

A 1949 trial before federal district judge Harold Medina, conducted amid mounting anticommunist hysteria, ended with the conviction of all eleven defendants. This tumultuous, nine‐month‐long proceeding featured judicial bias, which manifested itself in questionable rulings on the admission and exclusion of evidence, as well as the employment of dubious tactics by both the prosecution and the defense. The convicted Communists appealed their convictions to the Second Circuit Court of Appeals, but it unanimously affirmed them. Judge Learned Hand's opinion rebuffed defense attacks on the impartiality of the judge and jury, on the prosecution's use of informant witnesses, and on Medina's conduct of the trial. It also rejected the Communists' contention that the Smith Act was unconstitutional.

The Supreme Court granted certiorari only on that issue. Hence, the justices did not have before them a complete record of what had gone on at the trial and did not realize how unimpressive the prosecution's evidence had been. Even if he had known these things, Chief Justice Fred Vinson, who seldom displayed much sympathy for civil liberties claims, probably would have voted to affirm. He believed the government had to protect itself from Communists and that it dared not wait until their preparations for its overthrow had reached the point of rebellion. The clear and present danger test precluded punishing speech unless it posed an immediate threat of a serious substantive evil. Consequently, Vinson employed a modified version of that principle (now known as the “grave and probable danger” rule), which Judge Hand had developed. “In each case,” Vinson wrote, courts “must ask whether the gravity of the ‘evil’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger” (p. 510). This rule afforded far less protection to freedom of expression than had the clear and present danger test.

Only three other justices endorsed Vinson's opinion. Unable to accept what the chief justice had done to the clear and present danger test, Robert Jackson insisted that it was inapplicable to conspiracies, such as communism, but that the convictions could be sustained because the defendants were guilty of conspiring to overthrow the government. Felix Frankfurter also concurred, suppressing his distaste for the Smith Act because of his commitment to the principle of judicial self‐restraint. Both Hugo Black and William O. Douglas filed vigorous dissents.

The Justice Department interpreted Dennis as authorization for an all‐out attack on the Communist party. The Court's subsequent ruling in Yates v. United States (1957) thwarted this assault, but Yates neither held the Smith Act unconstitutional nor overruled the 1951 decision. Although Dennis is inconsistent with more recent rulings, the Supreme Court has never repudiated its grave and probable danger rule.

2 cases after Yates
- further refined yates by "indicating that something more than the abstract teaching of forcefule overthrow of the government was necessary to convict anyone under the membership provisions of the Act". They are: - Scales v. United States 367 US 203 (1961) - Noto v. United States 367 US 290 (1961)
 * cases after yates:

Scales case was 1st, and tho the conviction was upheld the SCOTS p 207-8 explicity required SMith ACt MEMBERSHIP convitions to show that (1) direct advocaty of violence; and (2) that the membership was substantial & active, not passive or technical. Later, in Noto, the court reversed a conviction because the facts presented at trial were not sufficent to meet those tests. - from page 47 of Title	Student's guide to landmark congressional laws on the First Amendment Student's guide to landmark congressional laws Bibliographies and Indexes in Library and Information Scienc Author	Clyde E. Willis Edition	illustrated Publisher	Greenwood Publishing Group, 2002 ISBN	0313314160, 9780313314162

from justia: http://supreme.justia.com/cases/federal/us/367/290/
 * NOTO Case: no WP article yet:

U.S. Supreme Court Noto v. United States, 367 U.S. 290 (1961) Noto v. United States No. 9 Argued October 10-11, 1960 Decided June 5, 1961 367 U.S. 290 Syllabus Petitioner was convicted of violating the so-called membership clause of the Smith Act, which makes a felony the acquisition or holding of membership in any organization which advocates the overthrow of the Government of the United States by force or violence, knowing the purpose thereof. Held: the judgment is reversed, because the evidence was insufficient to prove that the Communist Party presently advocated forcible overthrow of the Government not as an abstract doctrine, but by the use of language reasonably and ordinarily calculated to incite persons to action, immediately or in the future. Pp. 369 U. S. 291-300. (a) In order to support a conviction under the membership clause of the Smith Act, there must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching and to justify the inference that such a call to violence may fairly be imputed to the Party as a whole, and not merely to some narrow segment of it. P. 367 U. S. 298. (b) It is present advocacy, not an intent to advocate in the future or a conspiracy to advocate in the future, which is an element of the crime under the membership clause of the Smith Act. P. 367 U. S. 298. (c) A defendant must be judged upon the evidence in his own trial, and not upon the evidence in some other trial or upon what may be supposed to be the tenets of the Communist Party. P. 367 U. S. 299. 262 F. 2d 501 reversed. Page 369 U. S. 291

Scales: no WP article yet: justia online: http://supreme.justia.com/cases/federal/us/367/203/

U.S. Supreme Court Scales v. United States, 367 U.S. 203 (1961) Scales v. United States No. 1 Argued April 29, 1959 Reargued October 10, 1960 Decided June 5, 1961 367 U.S. 203 Syllabus Petitioner was convicted of violating the so-called membership clause of the Smith Act, which makes a felony the acquisition or holding of membership in any organization which advocates the overthrow of the Government of the United States by force or violence, knowing the purposes thereof. The indictment charged that from January, 1946, to the date of its filing in 1954, the Communist Party of the United States was such an organization, and that, throughout that period, petitioner was a member thereof with knowledge of the Party's illegal purpose and a specific intent to accomplish overthrow of the Government "as speedily as circumstances would permit." The jury was instructed that it could not convict unless it found that, within the 3-year limitation period, (1) the Party advocated the violent overthrow of the Government, in the sense of present "advocacy of action" to accomplish that end as soon as circumstances were propitious, and (2) petitioner was an "active" member of the Party, and not merely "a nominal, passive, inactive or purely technical" member, with knowledge of the Party's illegal advocacy and a specific intent to bring about violent overthrow "as speedily as circumstances would permit." Held: A judgment of the Court of Appeals sustaining the conviction is affirmed. Pp. 367 U. S. 205-259. 1. Section 4(f) of the Internal Security Act of 1950, which provides, in part, that neither "the holding of office nor membership in any Communist organization by any person shall constitute per se a violation" of that or any other criminal statute, did not repeal pro tanto the membership clause of the Smith Act by excluding from the reach of that clause membership in any Communist organization. Pp. 367 U. S. 206-219. 2. Petitioner's challenge to the constitutionality of the membership clause of the Smith Act must be overruled. Pp. 367 U. S. 219-230. (a) The statute was correctly interpreted by the two lower courts. Pp. 367 U. S. 221-224. (b) As construed and applied, the membership clause of the Smith Act does not violate the Fifth Amendment by impermissibly Page 367 U. S. 204 imputing guilt to an individual merely on the basis of his associations and sympathies, rather than because of some concrete personal involvement in criminal conduct. Pp. 367 U. S. 224-228. (c) As construed and applied, the membership clause of the Smith Act does not infringe freedom of political expression and association in violation of the First Amendment. Pp. 367 U. S. 228-230. 3. The evidence was sufficient to sustain the conviction. Pp. 367 U. S. 230-255. 4. None of the trial errors alleged by petitioner raises points meriting reversal. Pp. 367 U. S. 255-259. (a) The admission of evidence about the Party's program for inciting the Negro population in the South to revolt and the admission of a pamphlet called "I Saw the Truth in Korea," which contained a very gruesome description of alleged American atrocities in Korea, were not prejudicial errors warranting reversal of the conviction. Pp. 367 U. S. 255-257. (b) The so-called Jencks Act, 18 U.S.C. § 3500, is not unconstitutional, and its application to petitioner in this case did not invalidate his conviction. Pp. 367 U. S. 257-258. (c) Petitioner has made no showing to sustain his contention that congressional findings as to the character of the Communist Party contained in the Communist Control Act of 1954 and the Internal Security Act of 1950 deprived him of a fair trial on that issue. Pp. 367 U. S. 258-259. (d) By his failure to comply with Rule 12 of the Federal Rules of Criminal Procedure, petitioner waived any right he might have had to question the method of choosing grand jurors, and no impropriety in the method of choosing grand jurors has been shown. P. 367 U. S. 259. 260 F.2d 21, affirmed. Page 367 U. S. 205