Part 1

Chapter 13,823 wordsPublic domain

... AND JUSTICE FOR ALL

WILLIAM M. KUNSTLER

1963 OCEANA PUBLICATIONS, INC. DOBBS FERRY, N. Y.

Library of Congress Catalog Card Number 62-11115

Manufactured in the United States of America

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

_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.”