game for delay, to say nothing of the obligation due the court when counsel makes representations to it, or the affront to the court when such representations are relied on by the court and then suddenly changed.
On June 3, 1953, the defendants categorically stated to the court that they did not want their chosen counsel of record -- Mr. Schlesinger -- to represent them as trial counsel. Thereupon the court cleared the way for the defendants to proceed in forma pauperis and offered to select and appoint competent legal counsel from the members of the bar in the Western District of Pennsylvania to represent the defendants for the balance of the trial. This offer was categorically and promptly refused. The court had already fixed June 16 as a deadline for the resumption of the trial -- a period of forty days from the time the court alerted defendants to arrange for substitute counsel and nineteen days after the actual withdrawal of Mr. Edises.
On June 12 the defendant Albertson telephoned chambers and requested permission to introduce 'their counsel' to the court. This permission was granted. Mr. Terris was introduced to the court, and, as stated, entered his special appearance and moved for mistrial. In these circumstances we were constrained to deny the motion.
The jury reconvened on June 16 as scheduled. Mr. Terris asked leave to enter his appearance generally and requested a continuance to October 1, 1953, to prepare for trial. The court refused to recess until October 1, but advised Mr. Terris he would be given one month to prepare for trial.
This was accepted under protest and Mr. Terris was admitted specially as trial counsel.
We are firmly convinced that the defendants would have been more than adequately and effectively represented and their rights fully protected had they agreed to permit their selected counsel of record -- Mr. Schlesinger -- or Mr. Powe, or both, to finish the trial for them.
We are also firmly convinced that events justified our decision to deny the motion for mistrial. Mr. Terris capably represented his clients and received the utmost cooperation and active assistance from Mr. Powe who, in effect, acted as co-counsel.
We were further fortified in our decision to deny the motion for mistrial by the fact that the defendants Nelson and Careathers were permitted to open and close to the jury. This was agreed to by Judge Stewart and by this court on the representation that no attorney could present the true aims and objectives of the Communist Party and the defendants to the jury.
At the time Mr. Edises was permitted to withdraw, the court was advised that only two witnesses remained to be called by defendants and that the Government had only a few questions to conclude the cross-examination of the witness Weissman. The two remaining witnesses were the defendant Albertson, who was represented by Mr. Powe, and a Benjamin J. Davis, who was brought to this district from the penitentiary in Terre Haute, Indiana, by way of habeas corpus proceedings initiated by the defendant Dolsen, also represented by Mr. Powe. With the exception of two witnesses from the Carnegie Library of Pittsburgh, whose testimony was of a routine nature and consumed less than an hour, Albertson and Davis were the last witnesses to testify on behalf of the defendants. Mr. Powe conducted the major portion of their interrogation.
In the circumstances, we believe that the withdrawal of Mr. Edises did not, ipso facto, compel the granting of a mistrial. We are of the opinion that the matter was one of discretion. In exercising our discretion we considered the complications in this case; the difficult and time-consuming task of getting the trial under way; the time, expense and difficulty in selecting a jury; the time already consumed in trial; the representation that Nelson and Careathers were not going to take the witness stand; the refusal of these defendants and the defendant Weissman to proceed with their counsel of record, or with Mr. Powe; their refusal to permit the court to appoint counsel; the intelligence and ability of defendants to inform new counsel of their desires, strategy and theories of defense;
the fact that Mr. Powe continued to act in a manner which indicated that he was protecting the interests of not only his clients but those represented by Mr. Edises as well; and the fact that the defendants Nelson and Careathers were permitted to open and close to the jury. After considering these factors, we were of the opinion that our discretion should be exercised in favor of continuing the trial.
Mr. Terris' participation in the trial indicated that we had not abused our discretion. He fully protected the rights of his clients and the fact that the defendants were convicted does not reflect on his conduct of the trial.
Interrogation of Jury by the Court.
The final matter on which we think reasons should be set forth concerns a motion for mistrial which was based on the alleged prejudice created by a newspaper article and the publicity attendant on a hearing conducted by the Senate Permanent Subcommittee on Internal Security headed by Senator Joseph R. McCarthy. This motion was filed on July 9, 1953. It concerned the publicity given to the testimony of one Joseph D. Mazzei, who testified before the Committee on June 18, 1953. Mr. Mazzei testified for the prosecution in this case.
The defendants urged that under the decision of Delaney v. United States, 1 Cir., 1952, 199 F.2d 107, we were compelled to declare a mistrial. Defendants brought Royal W. France, Esquire, before this court to appear specially and argue the motion. The legal argument centered around the factual issue of whether the jury had read or heard about the incident. Defendants urgently argued that the court was required to presume prejudice. We, however, are of the opinion that presumptions need not be indulged in if the facts are available.
We, therefore, interrogated each juror under oath and out of the presence of the others. In this manner it became abundantly clear that, with only two exceptions, the jurors had not read the article or heard anything about the matter raised by the defendants. The two who had any knowledge of the incident only heard the name Mazzei mentioned on the radio or saw his picture in the paper but could not remember what the incident was about.
From this examination it was clear that the publicity concerning Mr. Mazzei had not prejudiced the defendants, and in denying the motion, we found this to be the fact. Our interrogation refrained from disclosing the nature of the publicity, 18 and we told the members of the jury not to inquire into it.
The defendants' counsel both vigorously objected to the interrogation. They also urged even after the interrogation that the court had to presume prejudice. We think this argument is wholly unsound.
In the Delaney case the court presumed prejudice because there was no evidence to the contrary. In this case the evidence clearly shows that the jury was not aware of the alleged prejudicial matter. The interrogation further indicated that the jury was so assiduous in complying with our admonishment not to read about this case during the trial that they did not read or listen to matters related to the trial because of the identity of names.
If the interrogation had revealed any knowledge of the alleged incident and any resultant prejudice, we would have granted the motion. When such was not the case, the motion was denied.
We have attempted herein to set forth some of the factors which guided the court in deciding the issues. This is not intended as an all-inclusive opinion. Many of the matters raised during these proceedings were decided by Judge Stewart. His opinion in 1952, 13 F.R.D. 180, greatly reduced the burden on this court and we have adopted his rulings and reasoning as set forth therein. Many of the matters raised at trial were disposed of by written orders to which we attached memoranda setting forth our reasons.
Since the defendants have filed notice of appeals, we undertook to discuss the matters herein, not only because we think the parties are entitled to our reasons, but also because they may be of some benefit to the judges who will review the proceedings.