The opinion of the court was delivered by: MARSH
In this criminal action the defendants are charged with conspiring
to teach and advocate the overthrow of the Government of the United States by force and violence as speedily as circumstances will permit in violation of the Smith Act.
The grand jury returned a true bill on January 18, 1952. On May 27, 1952, the defendants were arraigned before our late esteemed colleague, the Honorable William Alvah Stewart, and entered pleas of not guilty. Subsequently, voluminous all pretrial motions; 13 F.R.D. 180. filed. The many hearings held culminated in an opinion and order of Judge Stewart filed October 10, 1952, denying all pretrial motions; 13 F.R.C. 180.
On November 12, 1952, Judge Stewart drew a jury panel of 51 names and commenced the voir dire examination. This continued for seven court days, during which time only twenty jurors were interrogated.
On December 16, 1952, because of the serious illness of Judge Stewart, an order was entered assigning the case to this court for trial and disposition. February 2, 1953, was fixed as the date of trial.
The court determined upon the manner in which the jury should be selected, and twelve jurors and four alternates were accordingly chosen which, in our opinion, could fairly and impartially determine the guilt or innocence of the defendants.
The prosecution presented its case and rested on April 16, 1953. The defendants requested a recess so that they might have an opportunity to prepare motions for judgment of acquittal, motions to strike certain testimony, renewed motions on double jeopardy, and a renewed motion for mistrial because of the political climate. The court granted a recess during which time Bertram Edises, Esquire, counsel for the defendants Nelson, Careathers and Weissman, became ill. Additional continuances were granted to permit Mr. Edises an opportunity to recuperate. On May 18, 1953, the defendants opened to the jury. Mr. Edises continued to represent his clients, and one of them, the defendant Weissman, took the stand and testified on behalf of the defendants. The cross-examination of Weissman was substantially completed when the court permitted Mr. Edises to withdraw from the case because of his illness and the defendants were granted a continuance to June 1, 1953, on their representation that they would be prepared to continue the trial 'in any event' by that date.
Various motions were subsequently made and continuances were granted until June 16, 1953. Reuben Terris, Esquire, after appearing specially to request a mistrial, entered his appearance as trial counsel for the defendants previously represented by Mr. Edises. He requested a continuance to October 1, 1953, which was refused and a continuance was granted to July 16, 1953. On July 14, 1953, Mr. Terris requested a continuance until July 20, 1953, to permit argument and consideration of a motion for mistrial filed July 9, 1953, and to grant additional time for Mr. Nelson to recuperate from a goiter operation he had had performed in New York.
On July 16, 1953, Royal W. France, Esquire, was admitted specially to argue the motion for mistrial based on publicity which accompanied a hearing before the Senate Permanent Subcommittee on Internal Security in Washington, D.C., at which Joseph Mazzei, a witness for the prosecution in this case, had testified. That motion was denied as well as other motions for mistrial and for continuance.
On July 20, 1953, the trial was finally resumed and on August 12, 1953, the defendants rested. Summations in behalf of defendants were made by Messrs. Terris and Powe, of counsel, and by two defendants, Nelson and Careathers. On August 18, 1953, after the court's charge, the jury entered upon its deliberation and on August 20, the jury returned a verdict of guilty as to all five defendants.
Arguments on various motions were heard, including arguments for a new trial. The court denied the motions and on August 25 sentenced each defendant to five years in the federal penitentiary.
We, therefore, will limit our remarks to four matters which we believe merit discussion. They are as follows:
1. The method used by this court in selecting a jury.
2. The court's refusal of defendants' requests for the production of F.B.I. reports.
3. Denial by this court of a motion for mistrial because of the illness and withdrawal of defense counsel.
4. The interrogation by this court of the jury as to whether or not they had read the newspaper account of Joseph Mazzei's testimony before the Senate Permanent Subcommittee on Internal Security.
On November 12, 1952, Judge Stewart launched upon an extensive voir dire examination in which each juror was individually examined out of the presence of the other jurors. This examination continued through November 19, 1952. In this interim twenty jurors were examined. About 500 pages of transcript were taken.
After twenty jurors had been extensively interrogated, thirteen were excused for various reasons.
Some of the excused jurors had expressed normal and common prejudices against communism, and those who did not the defendants challenged for cause, assuming that they were either coached or uninformed. Mr. Swiss, Assistant United States Attorney, at this point injected a cogent remark. He stated at page 295 of the transcript that 'If a prospective Juror says that he has an opinion, then, of course, he is disqualified; if a prospective Juror says that he has formed no opinion, then, according to Mr. Edises (of defense counsel), the Juror shows a certain suspicious naivete, which implies a coaching * * *.'
It seemed to this court, after carefully reviewing the procedure followed by Judge Stewart, that to obtain a juror who would make the 'right' answers (from defendants' point of view) to the questions propounded, he or she would have to be a person who had lived in a vacuum, or was an imbecile, or a communist. The probing of the minds of the jurors as suggested by defense counsel would have required months of interrogation with comprehensive discourses on the various theories of communism, socialism and capitalism. At the end of interrogation of this ...