... and justice for all
Date: 2026-03-17T00:00:00+00:00
Keywords: Crime -- United States; Trials -- United States

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Title: ... and justice for all

Author: William M. Kunstler

Release date: March 17, 2026 [eBook #78229]

Language: English

Original publication: Dobbs Ferry, NY: Oceana Publications, 1963

Other information and formats: www.gutenberg.org/ebooks/78229

Credits: Alan, Tim Lindell and the Online Distributed Proofreading Team at https://www.pgdp.net (This book was produced from images made available by the HathiTrust Digital Library.)

*** START OF THE PROJECT GUTENBERG EBOOK ... AND JUSTICE FOR ALL ***

...AND JUSTICE FOR ALL

BY

WILLIAM M. KUNSTLER

1963

Oceana Publications, Inc.

Dobbs Ferry, N. Y.

© Copyright, 1963, by William M. Kunstler

All Rights Reserved

Library of Congress Catalog Card Number 62-11115

Manufactured in the United States of America

To

Michael J. Kunstler

Introduction

Years ago, when I tried to enlist the services of the great defender of the underdog, Clarence Darrow, against a free speech prosecution of some midwestern radicals, he refused, not because of lack of sympathy but, as he said, because it was hopeless. “You can’t get anybody off in these radical cases,” he said. “Whenever I get a case with anything radical in it I cut it out. I’m not taking any more of them. I am just defending murderers and other respectable criminals; sometimes I can get them off.”

What Darrow observed then is the theme of lawyer Kunstler’s selection of cases where justice might have yielded to community passion and prejudice. The cases are not exceptional: they are symptomatic. In the First World War, passion against dissenters rose so high that, in surveying the wreckage of the hundreds of federal prosecutions for anti-war utterances, the then Chief Justice of the United State Supreme Court, Charles Evans Hughes, was moved to wonder whether “American democracy could survive another great war, however victoriously waged.”

Half of the ten dramatic court cases skillfully analyzed by lawyer Kunstler for laymen are still for me vivid experiences in the struggles of the American Civil Liberties Union for fair trials against fear and prejudice. All but two of them occurred during the period of my active association with the Union from 1920 on. In some the Union was only indirectly involved; in others it directly took part, and in one, the trial of Scopes for teaching the theory of evolution, the Union initiated the prosecution and handled the defense.

This experience confirms the thesis underlying Mr. Kunstler’s selection of a few of the hundreds of cases he could have cited to show how difficult it is for juries and judges to rise above community fears to deal justly and fairly with unpopular or hated defendants. In most of the cases, “who you were, not what you did,” was on trial, what you represented as a threat to majority prejudice or dominant powers, not what you represented as a force of protest or progress with a claim on equal justice.

It is an old story forever new, and the lesson of history needs constant repetition for us in the United States in terms of our time. It was just such community hostility that condemned Socrates before the jury of Athenian citizens, and forced Pontius Pilate to turn over Jesus of Nazareth to the jury of priests. The witches of Salem were hung in a fury of community condemnation, with the blessing of clergy and officials. In our times, Mr. Kunstler could have brought to witness the hundreds of cases against members of the Industrial Workers of the World before and after World War I, condemned even before they were tried as destroyers of property and enemies of government. Or coming up to date, he could have cited dozens of prosecutions of Communists in which conviction was a foregone conclusion, whatever the charge.

His selection omits these cases in favor of more dramatic and better-known trials illustrating a larger variety of intolerances, racial, religious and political. Only four of the ten involve political radicals,—three of them the casualties of cold war fears for national security. All the defendants are long since dead or freed, with the sole exception of Morton Sobell, convicted with the executed Rosenbergs, now serving a savage thirty-year sentence. The stories are therefore history in the dark chapter of dubious trials, with no call to present action.

What lessons can be learned from the record? Mr. Kunstler offers a few in his preface. I would add one or two of my own.

The emphasis on due process of law as the basic guarantee of our liberties, so often voiced by courts and lawyers, and reasonably true in ordinary trials, is secondary where prejudice prevails. And prejudice is not confined to the fears of war-time, hot or cold, or to the racial conflicts dramatized by a case nationally or internationally famous, as most of these in this book were, but it exists in our courts every day all over the country. What Negro can be assured that he will get equal justice with a white man for the same offense? What Mexican-American in the Southwest? What Puerto Rican in our eastern cities? Is justice as equal in any court for the non-conformist and unpopular as for the regulars?

If our juries and judges are to approach the goal of even-handed justice, we need the restraints, as Mr. Kunstler suggests, of fewer trials by newspapers, more searching screening of juries, more resolute and independent judges, and public defenders, competent to counteract prejudice, for indigent defendants. I would not tamper with the jury system, imperfect as it is in rising above community prejudice; but skilled defense lawyers always know, when there is a choice, whether a judge or a jury is likely to assure a fairer trial.

Not all the cases Mr. Kunstler presents came out badly. Some had salutary effects, even striking. The impact of the Tennessee evolution case was so profound that, although anti-evolution laws were not repealed, they were nullified in practice. The resistance to the McCarthy inquisition, set forth in the Lamont case, combined with the Senator’s own excess of zeal, destroyed him as a political demagogue though the prejudice and fears he aroused continue, greatly diminished, under cold war pressures. The recent school prayer decision will doubtless do much to clarify the delicate relationship between church and state.

The short-range good won from the evils of most of these trials may be matched by their long-range effects if the lesson Mr. Kunstler impresses on us is learned in the administration of justice. But it is a hard task to guard against the prejudices and fears of an aroused community, as all history shows, and yet one which must be achieved if our professions of justice are to be vindicated.

Roger N. Baldwin
Founder of the American Civil
Liberties Union

New York, N. Y.
October 9, 1962

Preface

In 1953, Professor Edmund M. Morgan, of Vanderbilt University’s School of Law, in his introduction to a reprint of Felix Frankfurter’s The Case of Sacco and Vanzetti, wrote: “In times when the opinion of the community is shot through and through with deep-seated prejudices concerning race, social class, economic theories or political ideologies, a case in which either the issues or the parties involved touch these prejudices, arouses passions which becloud judgment and make impossible a fair consideration of the evidence.” Like Professor Morgan, I have always felt that “the fixed preconceptions of the community” can, in too many instances, contribute more to the outcome of criminal trials than the quantity or quality of the evidence. It was with this uncomfortable thought in mind that this book was conceived and written.

I do not claim that all the cases which appear in this collection bear out the truth of Morgan’s observation. But they do illustrate some of the difficulties that confront a defendant who is being tried in an environment that is, to say the least, hostile to him or his cause. This does not mean, of course, that his chance of a fair trial are hopeless. But it goes without saying that he must struggle against greater odds than those faced by others accused of crime who are more acceptable to the community.

Leo Frank, for example, was an outsider and a Jew charged with a particularly heinous crime. As the judge who presided at his trial so aptly put it, “If Christ and his angels came down here and showed this jury Frank was innocent, it would bring him in guilty.” The Scottsboro boys were southern Negroes accused of raping two white women. The fact that the complaining witnesses were tramps, the defendants young boys, and the evidence far from convincing, did not deter three successive juries from imposing the death penalty. Sacco and Vanzetti were immigrant Italians whose anarchistic views had made them anathema to a society which sought its salvation in Attorney General Mitchell Palmer and his pre-dawn raids. Mary Surratt, Alger Hiss, the Rosenbergs and Corliss Lamont were, in one way or another, enemies of the state, Tom Mooney an obstreperous labor agitator in an era of anti-unionism, John Thomas Scopes a threat to the Bible, and the five petitioners in the recent Herricks school prayer case against God.

In all but three of these cases (Mary Surratt was tried by a military commission, Corliss Lamont’s fate decided by a solitary judge and the school prayer petitioners were limited to a single-judge court) the defendants faced juries which were prepared to believe the worst of them before their trials began. Mrs. Surratt was judged by nine army officers wholly subservient to a vindictive, autocratic Secretary of War, and Dr. Lamont, although he was spared a jury trial by the dismissal of the indictment against him, would undoubtedy have been confronted by a panel not overly favorable to an acknowledged leftist who had defied a congressional investigating committee. But, whatever the mode of trial, or type of tribunal involved, the fundamental fact remains that all the pariahs had to run the gamut of a hostile climate of opinion which militated strongly against their chances of success.

The dilemma of the unpopular defendant (or plaintiff) has caused grave concern to those interested in the just administration of the law. Many solutions have been suggested. Some have urged that, as in Great Britain, the news media be forbidden to report any but the most rudimentary details of pending civil or criminal cases. Others have proposed that more frequent changes of venue be granted by the courts. Still others have questioned the validity of the jury system itself. It is my hope that the cases in this volume will illustrate the gravity of the situation and provoke some fruitful discussion of the problem. As Prof. Morgan points out, “the administration of justice, particularly in times of crisis, is one of the most important functions of government.” It deserves the immediate attention of us all.

William M. Kunstler

New York, N. Y.
September 15, 1962

“I PLEDGE ALLEGIANCE TO THE FLAG OF
THE UNITED STATES OF AMERICA AND TO
THE REPUBLIC FOR WHICH IT STANDS, ONE
NATION UNDER GOD, INDIVISIBLE WITH
LIBERTY AND JUSTICE FOR ALL.”

PLEDGE OF ALLEGIANCE TO THE FLAG

Table of Contents

| Introduction | VII
| Preface | XI

1.

She Helped to Kill a President
United States v. Surratt

1

2.

Atlanta’s Northern Jew
Georgia v. Frank

24

3.

In Union There is Death
California v. Mooney

37

4.

Anarchists With Bloody Hands
Massachusetts v. Sacco and Vanzetti

65

5.

He Defied the Bible
Tennessee v. Scopes

102

6.

Their Skin was Black
Alabama v. Patterson

120

7.

A Traitor from Harvard
United States v. Hiss

137

8.

They Gave the Bomb to Russia
United States v. Rosenberg

170

9.

Contempt by Silence
United States v. Lamont

194

10.

Five Against God
Engel v. Vitale

210

| Bibliography | 230
| Index | 232

1

She Helped to Kill a President

The United States
versus

Mary Eugenia Jenkins Surratt

A few minutes after eight o’clock on the morning of Palm Sunday, April 9, 1865, Robert E. Lee sat down at a field table and wrote a note to General Grant, requesting an interview “with reference to the surrender of this army.” That afternoon, at the McLean farmhouse on the edge of Appomattox village, the fifty-eight-year-old Lee turned over the Army of Northern Virginia to its embarrassed conqueror. The brief surrender document was written out in pencil by Grant at a table in the McLean living room and corrected by Lee who, resplendent in dress uniform sat across the room from the somewhat disheveled Union commander. At 3:45 p.m., the Confederate general signed his acceptance of Grant’s rather generous terms and went out to explain to his incredulous troops what he had done.

Even though Joe Johnston and Kirby Smith were still at large in the deep South, the Civil War was all but over. Two days after Appomattox, Grant and his wife arrived in Washington where the general was promptly lionized by a city gone wild after more than four nerve-wracking years of being a front line capital. In honor of the couple, Mrs. Lincoln had done her part by inviting them to a theatre party at Ford’s Opera House on the evening of Good Friday, April 14th. Our American Cousin, a new comedy with the incomparable Laura Keene, had been playing to enthusiastic audiences throughout the North and, although the President wasn’t particularly overjoyed at the prospect of sitting through a late-evening play, he knew better than to obstruct Mary’s plans. However, at the last moment the Grants begged off, primarily because the general had little stomach for what he termed “show business.”

At nine o’clock on Good Friday evening, coachman Francis Burns stopped the White House carriage in front of Ford’s between E and F on Tenth Street. Outside of the Lincolns, his only other passengers were Major Henry Reed Rathbone and Clara Harris, an engaged couple who were filling in for the Grants. When the quartet entered the Presidential box, Major Rathbone and Miss Harris took the two seats nearest the stage with their hosts sitting behind them. Lincoln sprawled in a haircloth rocking chair directly in front of a door that opened on a narrow hallway. Sometime during the afternoon, a small hole had been bored in the door, through which it was possible to observe the box’s occupants from the corridor.

Shortly after the Lincoln party had entered the box, John F. Parker, a perennially thirsty patrolman who had been assigned by the Metropolitan Police to guard the President, decided to leave his post in the hallway and look for a nearby bar. At 10:15, just as, on stage, Harry Hawk was referring to Mrs. Mountchessington as “you sockdologizing old mantrap,” actor John Wilkes Booth opened the now unguarded door and put a bullet into the head of the dozing man in the rocker. The rest was for the chroniclers—the leap to the stage, the broken shinbone, the mad dash across the Navy Yard Bridge, the frenzied manhunt through the woods and swamps of Northern Virginia, and the end of the trail in a burning barn on Garrett’s farm just south of Port Royal.

The self-styled avenger, who believed that “God ... made me the instrument of his punishment,” was destined to die just before sunrise on April 26th on the front porch of a Virginia tobacco farm. The cause of death—a bullet wound in the neck. Whether Booth shot himself, as Colonel Everton Conger, the leader of the cavalry patrol which had run him to earth, believed, or was killed by fanatical Sergeant Boston Corbett who claimed that God had been looking over his shoulder when he squeezed the trigger, didn’t change the essential fact that the assassin was as dead as he was ever going to be. The troopers who searched his body found a small diary and the daguerrotypes of five women in his pockets.

Seconds after Booth’s one-shot derringer had earned him a sizeable place in the history books, a wild-eyed young man on a bay horse pulled up in front of Secretary of State William H. Seward’s mansion on Lafayette Square. Pretending to be a messenger sent by Seward’s physician, he broke into the Secretary’s bedroom where he stabbed him three times. Only a steel frame which the victim had been wearing to support a fractured jaw saved him from death. The intruder then fought his way out of the house, seriously wounding four other people in the process, and rode off toward the east.

Meanwhile, four Pennsylvania artillerymen carried the President’s unconscious form across Tenth Street to William Peterson’s house. There he was placed on a walnut cot in the first floor bedroom of William Clark, one of Peterson’s boarders. He lingered during the night, but it was soon obvious to the six physicians in the room, who could do little more than remove the pressure-causing blood clots that continuously formed at the entrance to the wound, that their illustrious patient would never see another day. By dawn, his breath had become stertorous and labored and, at 7:22 a.m., Surgeon-General Joseph K. Barnes, recorded the last heartbeat. “Now,” Secretary of War Edwin M. Stanton was supposed to have said, as he closed the dead man’s eyes, “he belongs to the ages.”

Some four hours earlier, a Metropolitan Police squad, headed by a detective named Clarvoe, had arrived at a small boardinghouse at 541 H Street, which was owned by one Mary Eugenia Surratt, a widow who had come to Washington from Surrattville, Maryland, in the Spring of ’64. They were looking for Mrs. Surratt’s son, John, who, Clarvoe told her, had just murdered Secretary Seward. When Mrs. Surratt informed them that John had left for Canada when Richmond fell on April 3rd, the squad searched the eight-room brick building from cellar to attic. After ordering Louis J. Weichmann, one of Mrs. Surratt’s borders, to report to headquarters the next morning, the policemen left the house.

As soon as Lincoln died, Stanton, to whom one cause was as good as another so long as he remained primus motor, announced that he would not rest until he had found and prosecuted everybody who had anything to do with what his reward circulars referred to as “the stain of innocent blood.” Booth and David E. Herold, a slow-witted youth whose only redeeming feature was his devotion to the actor, had been identified as soon as they fled across the Navy Yard Bridge, minutes after the murder. Herold had been captured by Colonel Conger’s cavalry patrol just before it set fire to the barn in which the two men were hiding.

By that time, Stanton had rounded up seven other persons whom he accused of conspiring to kill the President. There was Lewis Payne, a Confederate deserter and the son of a Florida minister, who had created the havoc at the Seward house. Payne and George A. Atzerodt, a carriage-maker from Port Tobacco, had both boarded at Mrs. Surratt’s prior to the assassination. Atzerodt, who, with Herold’s help, was supposed to kill Vice-President Andrew Johnson at the Kirkwood House, had lost his nerve and spent the night of April 14th wandering aimlessly around the streets of Washington. He was finally captured on April 20th at his cousin’s farm in nearby Germantown. Payne was picked up when he showed up at the H Street boardinghouse at midnight on April 17th, with his head wrapped in a bloody shirtsleeve, just as Major H. W. Smith was in the process of arresting Mrs. Surratt.

Edward Spangler, the cantankerous stage carpenter at Ford’s had held Booth’s horse while the actor was about his murderous business in the President’s box. Samuel Arnold and Michael O’Laughlin, both of whom had known Booth since childhood, had been persuaded by him to help out in an abortive 1864 scheme to abduct Lincoln and hold him a hostage until the North came to terms with the Confederacy. After almost a year of fruitless discussions with Booth about ways and means, both men had withdrawn from the project. On the night of the President’s murder, O’Laughlin had been on a drinking bout in Washington with three friends while Arnold was working for a sutler at Fortress Monroe near Baltimore. Lastly, there was Dr. Samuel A. Mudd, the Maryland physician who had set the murderer’s broken leg the morning after the shooting.

By the end of April, Stanton had everybody he wanted. Herold was brought back to Washington on the same steamboat as his master’s blanket-wrapped corpse, and incarcerated with the other prisoners in the brigs of some gunboats moored near the Navy Yard. All that remained was the selection of a court. The Secretary of War was determined not to let his prizes enjoy the benefits of a civil trial and urged the new President to appoint a military commission to try them. Johnson agreed and, on May 1st, named a commission composed of seven generals and two colonels “for the trial of David E. Herold, George A. Atzerodt, Lewis Payne, Michael O’Laughlin, Edward Spangler, Samuel Arnold, Mary E. Surratt, Samuel A. Mudd ... implicated in the murder of the late President, Abraham Lincoln, and the attempted assassination of William H. Seward, Secretary of State, and in an alleged conspiracy to assassinate other officers of the Federal Government at Washington City.” The main charge—“maliciously, unlawfully, and traitorously murdering the said Abraham Lincoln, then President of the United States and Commander-in-Chief of the Army and Navy of the United States.”

As far as Mrs. Surratt was concerned, Brigadier-General Joseph Holt, the Judge Advocate General, didn’t mince words. She did, he said, “receive, entertain, harbor and conceal, aid and assist, the said John Wilkes Booth, David E. Herold, Lewis Payne, John H. Surratt, Michael O’Laughlin, George A. Atzerodt, Samuel Arnold and their confederates, with the knowledge of the murderous and traitorous conspiracy ... with intent to aid, abet and assist them in the execution thereof, and in escaping from justice after the murder of the said Abraham Lincoln, as aforesaid.” On March 10th, Mrs. Surratt and the seven other defendants pleaded, “Not Guilty.”

Their trial, which began officially at ten a.m. on May 10th, was held in a large room on the third floor of the Old Penitentiary. Several days earlier, the defendants had been transferred from their nautical prisons to cells in the same building where they were kept in solitary confinement. Even their guards were forbidden by Stanton to utter a word to them. Shortly after their arrival at the Penitentiary, the male prisoners’ heads were encased in heavy canvas sacks which were slit in the vicinity of their mouths. Payne’s attempted suicide by butting his head against his cell’s stone wall had alerted the Secretary of War to the possibility that some of his birds might succeed in beating their brains out before he could properly hang them. When General Hartranft, the Special Provost Marshal assigned to the commission, suggested the hoods, Stanton was quick to order them.

The trial had been scheduled to get underway on Tuesday, May 9th, but since the defendants all asked for time in which to find lawyers, General David Hunter, the President of the Commission, postponed it twenty-four hours. The next morning, Mrs. Surratt applied for permission, as Benn Pitman, the chief court stenographer recorded it, “to introduce Frederick Aiken, Esq. and John W. Clampitt, Esq., as her counsel, which applications were granted.” Dr. Mudd was the only other defendant to have drummed up a lawyer, and Hunter adjourned the Commission to the next day “to allow further time for the accused to secure the attendance of counsel.”

Aiken and Clampitt were two young attorneys who volunteered their services in Mary Eugenia’s behalf. Neither had had much experience in criminal trials and they were only too happy to welcome the assistance of Reverdy Johnson, the United States Senator from Maryland, who felt that the least he could do for an old constituent was to help her defend her life. On Saturday, his co-counsels introduced him to the Commission, only to find that one member—Brigadier-General T. M. Harris—objected to Johnson because he had publicly questioned the legality of the loyalty oath of 1862. When the Senator informed the Commission that he had merely expressed his opinion that the Maryland Constitutional Convention of 1864 did not have the authority to make the taking of such an oath a condition of voting on the new charter, Harris withdrew his objection.

As the prisoners filed into the courtroom, Pitman and his fellow reporters noticed that all except Mrs. Surratt and Dr. Mudd wore ten-inch manacle bars which prevented them from bringing their hands together. Mudd sported ordinary handcuffs while the feet of all the male defendants were shackled together with chains. With Atzerodt and the half-mad Payne, Stanton had taken the additional precaution of welding heavy weights to their steel anklets which made it impossible for them to walk without help from their guards.

The courtroom itself was a dimly lit room with only four small windows to illuminate its more than twelve hundred square feet. The prisoners’ dock consisted of a railed-off raised platform at the far end of the room. The defendants were separated from each other by blue-clad guards who sat between them. Mrs. Surratt’s seat was the last chair on the right side of the platform, just a few feet away from the door through which prisoners were brought from their cells every morning at precisely nine o’clock. There were two small field tables directly in front of the makeshift dock around which the seven defense attorneys sat. In the middle of the chamber were two long conference tables, one of which was occupied by the members of the Commission, with the other reserved for the official reporters. The witness stand was located in dead center between two of the three pillars that supported the room’s eleven-foot ceiling. The walls had been freshly white-washed and cocoa-nut matting had been spread over the stone floor.

As soon as all the defendants were represented by counsel, they were given permission to withdraw their “Not Guilty” pleas and attack the Commission’s jurisdiction. Each prisoner took the position that, since they were all civilians and there were appropriate Washington civil courts available to try them, the Military Commission did not have any power over them. The Judge Advocate answered this by claiming unequivocally that “this Commission has jurisdiction in the premises.” Hunter, who was very much Stanton’s man, went through the formality of clearing the courtroom, and then announced that the prisoners’ pleas were over-ruled. After a motion for separate trials had suffered the same fate, all of the defendants then reaffirmed their innocence.

As it put in its case against the eight defendants, the prosecution digressed for hours attempting to prove that Jefferson Davis and the other Confederate leaders had been responsible for Lincoln’s murder. In fact, Holt and his aides were determined to show that the assassination plot had been connected with Southern guerilla warfare in New York and Vermont as well as with the maltreatment of Union captives at Andersonville and other rebel prisons. Although, the evidence hardly supported their grandiose thesis, they succeeded in creating an illusion that the prisoners in the dock were part of a gigantic plot in which the President’s death was only one of many factors.

Late on the afternoon of May 13th, the Provost Marshal escorted Lou Weichmann to the tri-railed witness stand. Weichmann stated that he had first met John Surratt in the Fall of 1859 at St. Charles College in Maryland. Because of this friendship, he had moved to the H Street boarding house on November 1, 1864. He remembered that his landlady had requested him to visit John Wilkes Booth at the National Hotel twelve days before the President’s murder “and say that she wished to see him on ‘private business’.” Later that same evening, Booth had come to the house and closeted himself with Mrs. Surratt for more than an hour.

On April 11th, Mrs. Surratt had asked her boarder to see whether the actor would lend her his buggy for a trip to Surrattsville, which was some ten miles southeast of the capital. Booth informed Weichmann that he had just sold his vehicle, but gave him ten dollars “that I might hire one.” Weichmann had rented a surrey at Howard’s Stables and then driven Mrs. Surratt to Surrattsville “for the purpose of seeing Mr. Nothey, who owed her some money.” The couple had returned to Washington late that afternoon.

After lunch on Good Friday, Mrs. Surratt had again asked Weichmann to drive her into the country because, she told him, she had received a letter “in regard to that money Mr. Nothey owed her.” She had given him a ten-dollar bill with which to hire another rig. “We took with us only two packages; one was a package of papers about her property at Surrattsville; and another package done up in paper, about six inches, I should think in diameter. It looked to me like perhaps two or three saucers wrapped up. This package was deposited in the bottom of the buggy and taken out by Mrs. Surratt when we arrived at Surrattsville.” As soon as they reached Lloyd’s tavern at 4:30, Lou had headed for the taproom while his passenger went into the parlor. When he called for her at six o’clock, he had noticed that Booth was with her and that the two were in deep conversation.

Before John Surratt left Washington early in April, Booth had been a frequent visitor at 541 H Street. Whenever he called, he had always asked for young Surratt or his mother. “Sometimes,” Weichmann recalled, “when engaged in general conversations, Booth would say, ‘John, can you go upstairs and spare me a word?’ They would then go upstairs and engage in private conversation which would sometime last two or three hours. The same thing would sometimes occur with Mrs. Surratt.”

The witness had first seen Lewis Payne at the boardinghouse early in March. The defendant, who had been introduced to Weichmann as Wood, had arrived with no luggage and remained overnight. The next morning, Payne had taken the early train to Baltimore. He had returned three weeks later, this time dressed as a Baptist preacher, and said that he had just finished a seven-day term in a Baltimore prison but that the experience had taught him a lesson. “He had taken the oath of allegiance, and was now going to become a good and loyal citizen.”

From the first time he saw Payne, he was convinced that the latter was up to no good. One day, he had found a black false mustache “of medium size” on the table in his room. “When I found it, I thought it rather queer that a Baptist preacher should use a mustache. I took it and locked it up because I did not care to have a false mustache lying round on my table.” Later, he used to entertain his fellow clerks in the office of the Commissary-General of Prisoners with “a pair of spectacles and the mustache.”

One evening, he had returned to the house to find Payne and Johnny Surratt “playing with bowie knives” in his room. He also saw two Navy revolvers and four sets of new spurs on the bed. Just after the assassination, the Metropolitan Police had found one of these spurs in Atzerodt’s room at the Kirkwood House. Weichmann had seen Atzerodt, whom the ladies at Mrs. Surratt’s called Port Tobacco, “at the house, ten or fifteen times.” Like Booth, the carriage-maker had always asked for John Surratt or his mother.

Although Weichmann had never seen Arnold or McLaughlin before, he had met Dr. Mudd walking with Booth on Seventh Street on January 15, 1865. The actor had invited him to join them for a glass of wine in his room at the National. There, Booth and Mudd had had a private conversation in the hallway, a discussion which Weichmann was told had to do with the contemplated purchase of the physician’s farm by Booth. “Dr. Mudd apologized to me for his private conversation and stated ... that Booth wished to purchase his farm, but that he did not care about selling it, as Booth was not willing to give him enough.” It was after this meeting, that Booth had begun to show up frequently at the boardinghouse.

Herold had been at H Street once. But Weichmann had also seen him at Surrattsville in the summer of 1863. The only other time that he had met him was in March of ’65 when Booth, who was playing the part of Pescara in The Apostate, had given Surratt and himself two complimentary tickets. On the way to the theatre, the two young men had met Atzerodt and Herold, who were also going to the play. After the final curtain, the witness “found Atzerodt and Herold in the restaurant adjoining the theatre, talking very confidentially to Booth.” When the Judge Advocate asked him to identify Herold, Weichmann pointed to the defendant. Benn Pitman, using his brother’s new shorthand system, noted that Herold “smiled and nodded in recognition.”

Senator Johnson took over the brunt of the cross-examination. Weichmann admitted that Mrs. Surratt, whom he had met through her son, was a “member of the Catholic Church and a regular attendant upon its services.” In fact, he had usually accompanied her to church on Sunday mornings. Yes, he was on friendly terms with her son, John, who had never intimated to him that there was a plot afoot to kill the President. The only thing young Surratt had told him about Booth was that he hoped to go on the stage with him in Richmond after the war.

No, there was nothing suspicious about Mrs. Surratt’s April 11th visit to Surrattsville. A John Nothey had owed her $479.00 for more than thirteen years and she had decided to see him personally about it. She had met Nothey early that afternoon in the parlor of a tavern she had leased to a retired Washington policeman by the name of John M. Lloyd, for fifty dollars a month, just before she moved to the H Street house in the Spring of ’64. Her second visit, three days later, had been motivated by a letter she had received from George H. Calvert, Jr., “urging the settlement of the claim of my late father’s estate.” When her husband died in 1862, he had still owed Calvert Senior part of the purchase price of the Maryland property.

When Johnson sat down, young Clampitt took over. He wanted to know whether Weichmann had heard Booth or Mudd discuss anything subversive when he saw them at the National Hotel in January. The witness had not. As for the ten dollars which Booth had given him to hire a buggy for Mrs. Surratt, “I thought at the time that it was nothing more than an act of friendship. I said to Booth, ‘I am come with an order for that buggy that Mrs. Surratt asked you for last evening.’ He said, ‘I have sold my buggy, but here are ten dollars, and you go and hire one.’” No, he had never told Mary Eugenia about that. A few minutes later, he told Aiken that he had written a letter for his landlady to Mr. Nothey, threatening him with a law suit if he did not pay what he owed her at once. He remembered that he had helped her to calculate the interest on “the sum of $479 for thirteen years.”

When Weichmann stepped down late in the afternoon, Hunter adjourned for the day. Since the next day—May 14th—was a Sunday, the commission did not reconvene until the fifteenth. The first witness called on Monday was Mrs. Surratt’s tenant, John M. Lloyd. He recalled that Herold, Atzerodt and John Surratt had come to his house some five or six weeks before the assassination. They had brought with them “two carbines with ammunition ... a rope from sixteen to twenty feet in length, and a monkey wrench.” Surratt had asked him to hide these articles and even showed him a secret hiding place “underneath the joists of the second floor of the main buildings.” On April 11th, he had met Mrs. Surratt on the road at Uniontown. “When she first broached the subject to me about the articles at my place, I did not know what she had reference to. Then she came out plainer, and asked me about the ‘shooting irons.’... Her language was indistinct, as if she wanted to draw my attention to something, so no one else would understand. Finally, she came out bolder with it, and said that they would be wanted soon.”

Three days later, when he returned from watching a trial in Marlboro, he had found Mrs. Surratt in his backyard. “She met me by the wood-pile as I drove in with some fish and oysters in my buggy. She told me to have those shooting irons ready that night, there would be some parties who would call for them. She gave me something wrapped in a piece of paper which I took upstairs, and found to be a fieldglass. She told me to get two bottles of whiskey ready, and that these things were to be called for that night.”

At midnight, Herold had woken him up and said, “Lloyd for God’s sake, make haste and get those things.” The tavern owner had immediately gone to the place where he had hidden the carbines and given them to Herold. For some reason, he did not turn over the rope and the monkey wrench. Herold had taken the bottle of whiskey which Lloyd gave him and offered it to a man who was sitting on a light-colored horse in front of the tavern. In the bright moonlight, the tavern keeper had watched this man, who “was a stranger to me,” put the bottle to his lips and drink deeply. The two men had stayed for only five minutes before riding off in the direction of Tee Bee, a hamlet a few miles to the south. Just as they were about to leave, the man who was with Herold had said, “I will tell you some news, if you want to hear it. I am pretty certain that we have assassinated the President and Secretary Seward.” As they rode off, only Herold took a carbine with him. The other man “said he could not take his because his leg was broken.”

Whether it was the unseasonably hot weather or a monumental case of stage fright, Lloyd had wilted fast as the long morning wore on. By the time the prosecution let him go, he was on the verge of collapse. As Colonel John A. Bingham, Holt’s chief assistant, put him through his paces, the ex-policeman’s back country drawl frequently became so low that even the members of the Commission who were sitting directly in front of him had difficulty in hearing him. Both Aiken and Clampitt were constantly imploring Hunter to instruct the whispering witness to raise his voice, requests that the presiding officer consistently ignored.

On cross-examination, Aiken couldn’t shake Lloyd’s story. But he did get him to admit that there might have been a witness present at the April 14th conversation with Mrs. Surratt about the “shooting irons.”

Q. Are you positive again that Mrs. Surratt told you at that time that the shooting irons would be called for that night?

A. I am very positive.

Q. Was there any other persons present during the interview?

A. Mrs. Offutt, my sister-in-law, was, I believe, in the yard; but whether she heard the conversation or not I do not know.

But he couldn’t remember whether or not he had told “these circumstances” to Mrs. Offutt.

As for the package which Mrs. Surratt had brought to the tavern with her on Tuesday, the 11th, he had taken it upstairs at once.

Q. Did you undo it immediately when you got upstairs?

A. As soon as I got upstairs, I saw what it was.

Q. Did you lay the package down and leave it anywhere before you went upstairs?

A. No, sir.

He was sure that he had told Mrs. Offutt, shortly after Mrs. Surratt had started back to Washington, “that it was a fieldglass she had brought.”

He had gone to bed early on Good Friday because “I was right smart in liquor that afternoon and after night I got more so.” He had been sleeping soundly when Booth and Herold arrived. As soon as they had ridden off, Lloyd went back to bed. When he awoke the next morning, his yard was being picked over by Union soldiers who had traced Booth and Herold there. He was asked whether he “had seen two men pass that way in the morning.” He had replied that he had not. “That is the only thing I blame myself,” he remorsefully told the Commission. “If I had given the information they asked of me, I should have been perfectly easy regarding it. That is the only thing I am sorry I did not do.” In fact, it was not until the middle of the next week that he had decided to tell Captain George Cottingham, who had locked him in Roby’s Post Office in Surrattsville for safekeeping, that Booth and Herold had been at the tavern at midnight on April 14th.

As Lloyd rushed out of the hearing room, obviously destined for the first bar he could find, Holt recalled Weichmann. Outside of some elaboration of his previous testimony about the strange goings-on at chez Surratt, he contributed nothing further to the case against Mary Eugenia. He conceded that he had not heard the conversation between his landlady and Lloyd at Uniontown. It seemed that “Mrs. Surratt leaned sideways in the buggy and whispered, as it were, in Mr. Lloyd’s ear.” When Aiken asked him why he hadn’t told somebody about the suspicious circumstances at the house on H Street, he insisted that “my suspicions were not of a fixed or definite character.” Besides, when he had tried to tell Captain Gleason of the War Department about some peculiar remarks he had heard Booth utter about kidnapping the President, the officer had “laughed and hooted at the idea.”

After Lloyd was brought back to explain that he now wasn’t sure where he had taken the package which Mrs. Surratt had brought to the tavern on Friday, April 14th, Emma Offutt took the stand. She had been in the carriage with Lloyd when they had met Mrs. Surratt near Uniontown three days before the assassination. No, she hadn’t heard a word of the conversation because her brother-in-law had gotten out of the buggy to talk to Mrs. Surratt and “I was some distance off.” As far as Good Friday was concerned, she hadn’t heard anything that was said between Lloyd and Mary Eugenia in the tavern’s backyard. Mrs. Offutt had spoken to Mrs. Surratt shortly after the latter’s arrival that afternoon but she “gave me no charge in reference to her business, only concerning her farm, and she gave me no packages.”

Major H. W. Smith had been in charge of the troops who had arrested Mrs. Surratt on the night of April 17th. “While we were there, Payne came to the house. I questioned him in regard to his occupation, and what business he had at the house that time of night. He stated that he was a laborer, and had come there to dig a gutter at the request of Mrs. Surratt.” Major Smith had asked Mrs. Surratt, who was sitting in the parlor, whether she had hired Payne. She had stepped out into the vestibule and, from a distance of three feet, taken a long look at the man. “Before God, sir,” she had told Smith, “I do not know this man, and have never seen him, and I did not hire him to dig a gutter for me.”

When Holt showed the witness a brown and white coat, he promptly identified it as the coat that Payne had been wearing that April night. Ten minutes later, when William E. Doster, Payne’s attorney, asked him whether he was sure that the brown and white coat had been worn by the defendant, he repeated that “I am certain that this is the coat.” Seconds after the words had left his mouth, Major Smith was busy eating them. Doster shoved a drab-gray coat under his nose and asked him whether he didn’t want to change his mind. He did. “The coat now shown me is the one worn by Payne on the night of his arrest,” he conceded. It was very difficult, he explained, in the poor light of Mrs. Surratt’s vestibule to tell one coat from another. But now he was certain that “the coat just shown me is the one.”

Both Smith and R. C. Morgan, who had been sent to H Street to superintend “the seizing of papers”, had found photographs of such Confederate leaders as Beauregard, Jefferson Davis and Alexander H. Stephens. Lieutenant John W. Dempsey, the officer in charge of the search party, had turned up a rotogravure of John Wilkes Booth hidden behind a small framed lithograph entitled Morning, Noon and Night which hung in Mrs. Surratt’s first floor bedroom. But Captain W. M. Wermerskirch, Smith’s executive officer, swore that he had also seen a photograph of Union General George McClellan in the parlor.

Weichmann had testified that the H Street boardinghouse had been a beehive of activity during March and early April of ’65. On May 22nd, Holt called Honora Fitzpatrick, one of Mrs. Surratt’s more attractive boarders. Miss Fitzpatrick was a very definite young lady. “During the month of March last,” she said, “I saw John Wilkes Booth and John H. Surratt there.” Payne and Atzerodt had also dropped in but only once or twice. Early in March, Payne and Surratt had taken her to a performance at Ford’s Theatre. “I do not know what box we occupied, but I think it was an upper box. John Wilkes Booth came into the box while we were there.”

On May 23rd, the Judge Advocate called it a day and Messrs. Johnson, Aiken and Clampitt began their labors on behalf of Mrs. Surratt. Their first witness was George Cottingham, the special officer who had arrested John Lloyd on April 15th. For two solid days, he had urged his prisoner to tell what he knew about Booth and Herold. Finally, Lloyd had broken down and sobbed, “O, my God, if I was to make a confession, they would murder me.” When Cottingham had asked him who had designs on his life, he was informed that it was “these parties that are in this conspiracy.”

Then the dam had burst. The conscience-stricken Lloyd had told Cottingham everything. “He stated to me that Mrs. Surratt had come down to his place on Friday between 4 and 5 o’clock; that she told him to have the fire-arms ready; that two men would call for them at 12 o’clock....” The two men had turned out to be Booth and Herold, who showed up at midnight and picked up a carbine and some whiskey. As he had unburdened himself to Cottingham, he began to cry out, “O, Mrs. Surratt, that vile woman, she has ruined me! I am to be shot! I am to be shot!”

Cottingham had obviously caught the defense by surprise. Aiken had interviewed him in the bar of the Metropolitan Hotel on May 20th and, at that time, Cottingham had told the lawyer that Lloyd had not mentioned Mrs. Surratt. But, he insisted, “I had an object in that answer. He wanted to pick facts out of me in the case, but that is not my business; I am an officer and I did not want to let him know anything either way. I wanted to come here to the Court and state everything that I knew.”

Q. Did I ask you if Mr. Lloyd, in his confession, said anything at all in reference to Mrs. Surratt?

A. That question you put to me, and I answered; I said, “No.”

Q. That Mr. Lloyd did not say so?

A. I did say so. I do not deny that.

Q. Then you gave me to understand, and you are ready now to swear to it, that you told me a lie?

A. Undoubtedly, I told you a lie there; for I thought you had no business to ask me.

Q. No business! As my witness, had I not a right to have the truth from you?

A. I told you you might call me into court; and I state here that I did lie to you; but when put on my oath, I will tell the truth.

The fact that the Commissioners of Prince George’s County had offered a $2000.00 reward for information leading to the arrest of “anybody connected with the assassination” had had absolutely nothing to do with this fine distinction!

At this juncture, the defense introduced two letters which it claimed would satisfactorily explain Mrs. Surratt’s April 14th trip to Surrattsville. The first was signed by George H. Calvert, Jr., and was dated April 12th. When Mr. Calvert took the stand, he identified his letter which insisted that Mary Eugenia “pay the balance remaining due on the land purchased by your late husband.” The second communication, which had been written by the defendant to John Nothey from Surrattsville on April 14th, demanded that he settle his debt to her “within the next ten days” or she would “settle with Mr. Calvert and bring suit against you immediately.” B. F. Gwynn, who had read this note to the illiterate Mr. Nothey, said he had received it from Mrs. Surratt at the tavern on the afternoon of the 14th.

Lloyd had previously testified that he had been “right smart in liquor” on that fateful Good Friday. The defense team saw nothing to be lost by exploiting this admission to the fullest. Gwynn had seen him on the Marlboro road at 4:30 that afternoon and “he had been drinking right smartly.” Joe Nott, the bartender at Lloyd’s tavern, claimed that his employer “had been drinking a good deal; nearly every day and night, too, he was pretty tight. At times, he had the appearance of an insane man from drink.” As far as the 14th was concerned, “he was pretty tight that evening.”

Zad Jenkins, Mrs. Surratt’s brother, thought that Lloyd “was very much intoxicated at the time.” Richard Sweeney, who had run into the tavern owner on the Marlboro road, remembered that “he was considerably under the influence of liquor and he drank on the road.” James Lusby had ridden back to Surrattsville with him, and said he was “very drunk on that occasion.” Mrs. Offutt thought that her brother-in-law was “very much in liquor, more so than I have ever seen him in my life.” So much so, in fact, that he had become deathly ill shortly after returning from Marlboro and had to lie down. But Lloyd was evidently a man of great recuperative powers, because she had seen him heading back to the barroom a few minutes later.

As the trial dragged on, it was obvious that the Judge Advocate was relying heavily on Mrs. Surratt’s refusal (as he called it) to recognize Payne in the vestibule of her house on the night of April 17th. But Zad Jenkins swore that her “eyesight is defective,” while her daughter, Anna, testified that “my mother’s eyesight is very bad, and she has often failed to recognize her friends.” It was only her vanity, Anna said, that kept her from wearing glasses. Honora Fitzpatrick, who shared Mrs. Surratt’s room, said that her landlady had “complained that she could not read or sew at night, on account of her sight. I have known of her passing her friend, Mrs. Kirby, on the same side of the street, and not seeing her at all.” Honora had also been unable to identify Payne that night until “the skull-cap was taken off his head.” Mrs. Eliza Holahan, another boarder, knew that “Mrs. Surratt’s eyesight was defective.” Anna Ward, an old friend, stated that the defendant had frequently “failed to recognize me on the street”

The rest of the case for Mrs. Surratt consisted of evidence of her good character and loyalty to the Union. Anna Ward knew her as “a perfect lady and a Christian,” while four Catholic priests attested to her religious devotion. Her brother recalled that she frequently gave “milk, tea and such refreshments as she had in her house to Union troops when they were passing.” Rachel Semus, whom, Pitman noted, was “colored”, had been the Surratt cook for six years. She remembered that her employer had “fed Union soldiers at her house, sometimes a good many of them; and I know that she always tried to do the best for them that she could, because I always cooked for them.” Rev. E. F. Wiget, the president of Gonzaga College, had “always heard everyone speak very highly of her character.” John and Bill Hoxton, Surrattsville neighbors, had “never heard her utter a disloyal word.”

On June 13th, the defense suddenly recalled Mrs. Offutt. As she took the stand, Aiken told the Commission “that at the time Mrs. Offutt gave her testimony before, she came here very unwell. If I have been correctly informed, she had been suffering severely from sickness, and had taken considerable laudanum. Her mind was considerably confused at the time, and she now wished to correct her testimony in an important particular.” Colonel Bingham was on his feet in a flash.

Q. Is it something you swore to here in court?

A. Of course, I took the oath when I appeared here.

Q. Do you want to correct anything you have sworn to here in court?

A. Yes, sir, I should like to do so.

There wasn’t much Bingham could do with an obviously determined lady, and he sat down as abruptly as he had gotten up.

Mrs. Offutt reminded Hunter and his colleagues that when she had testified on May 17th, the Judge Advocate had asked her whether Mrs. Surratt had handed her a package at Lloyd’s tavern on April 14th, and her answer had been “No.” Now, she remembered that “she did hand me a package and said she requested to leave it there.” Later on, she had seen it “lying on the sofa in the parlor.” After Mrs. Surratt had left for Washington, the witness had noticed that Lloyd went into the parlor and “had a package in his hand.” She thought that “after the package was handed to me, it might have been taken by Mrs. Surratt and handed to Lloyd, but I did not see her give it to him.”

As Clampitt reminded the Commission, “Mr. Lloyd, under oath, swore that he received a package from Mrs. Surratt. We wish to show that a package was received of Mrs. Surratt by Mrs. Offutt. We wish to show in this connection that it was the same package that Mr. Lloyd swore to. If we can show that this was the identical package that Mr. Lloyd swore to receiving, we can show that his testimony is not worth the snap of a finger.” But Mrs. Offutt did not know what was in the package; all she remembered was that Mrs. Surratt had given it to her around 5:30 that afternoon and she had “laid it down” on the parlor sofa. She had no idea of what had happened to it after that, except that she had seen a package in her brother-in-law’s hands when he entered the house a few minutes later.

When the defense rested on June 13th, the government trotted out John Ryan, Frank Smith, James P. Young and P. T. Ransford, all of whom swore that Lou Weichmann, its witness-in-chief, was a very trustworthy fellow indeed. But only one—Young—had known him for any length of time. John T. Holohan, who had occupied a second-floor room at Mrs. Surratt’s in early 1865, swore that he had never heard anyone mention his landlady’s bad eyesight. With the testimony of six Prince George’s County neighbors that Zad Jenkins was, among other things, “one of the most disloyal men in the country,” the prosecution had shot its wad as far as Mrs. Surratt was concerned.

The closing arguments began on June 16th and continued for twelve days. While they droned on, John Clampitt tried to introduce the joint affidavit of Louis Carland and John P. Brophy, two friends of Weichmann, who swore that he had told them that he had perjured himself during the trial. He, and not Mrs. Surratt, had suggested that he try to borrow Booth’s buggy for the April 11th trip to Surrattsville. He had also informed Carland and Brophy that he had told a fellow clerk in the War Department all about the kidnap plot as early as February, and that Stanton had forced him to testify against Mrs. Surratt despite the fact that Lou thought she was innocent. But he had played along with the Secretary of War because “I didn’t want to hang.”

But Holt wasn’t going to let a piece of notarized paper spring Mary Eugenia. He rejected it as hearsay and, when Clampitt offered to produce Brophy in person, the Judge Advocate thumbed down his request on the ground that it was too late to call another witness. But on June 27th, eleven days after the prosecution had closed its case, Holt called one John Cantlin to testify to an anonymous advertisement printed in the Selma (Alabama) Dispatch on December 1, 1864, offering to kill Lincoln, Seward, and Johnson, for one million dollars. Brophy felt so strongly about the rejection of his affidavit that he tried to see Andrew Johnson about it but the President was incommunicado as far as the trial was concerned.

In his closing argument, Reverdy Johnson pointed out that the Military Commission lacked the power to try Mrs. Surratt. “As counsel for one of the parties,” he told its members, “I should esteem myself dishonored if I attempted to rescue my client from a proper trial for the offense charged against her, by denying the jurisdiction of the Commission, upon grounds that I did not conscientiously believe to be sound. And, in what I have done, I have not more had in view the defense of Mrs. Surratt, than of the Constitution and the laws. In my view, in this respect, her cause is the cause of every citizen. And let it not be supposed that I am seeking to secure impunity to any one who may have been guilty of the horrid crimes of the night of the 14th of April. Over these, the civil courts of this District have ample jurisdiction, and will faithfully exercise it if the cases are remitted to them, and guilt is legally established, and will surely award the punishment known to the laws.”

Johnson left it to his youthful associates to discuss the substantive case against Mrs. Surratt and young Aiken did his best. What had “two months of patient and unwearying investigation, and the most thorough search for evidence that was probably ever made” developed insofar as his client was concerned? Only that she knew Booth (and who in Washington did not?), that she had taken a message to Lloyd (so had a hundred others), and that she had failed to recognize Payne (bad eyes in a dim light). The chief witnesses against her—the unreliable Weichmann and the drunken Lloyd—were both trying to save their own skins. He ended in a blaze of rhetoric, asking the Commission’s members to disregard “suspicion fastened and fed upon the facts of acquaintance and mere fortuitous intercourse with that man in whose name so many miseries gather, the assassinator of the President.”

Colonel Bingham, who summed up for the prosecution, ended his two-day presentation with the observation that Mrs. Surratt was “as surely in the conspiracy to murder the President as was John Wilkes Booth himself.” After all, wasn’t her house the headquarters of the conspirators? And didn’t she deliver a fieldglass to Lloyd and instruct him to have the carbines ready? Would an innocent woman fail to recognize a man who had been her boarder? If she wasn’t involved in the plot against the President, why did Booth always ask for her when he visited H Street? As far as the Special Judge Advocate was concerned, the questions answered themselves.

When he sat down late in the afternoon of June 28th, the court was cleared for the last time and the Commission began its deliberation. It took only minutes for it to decide that Payne, Herold and Atzerodt should hang. Dr. Mudd, Mike O’Laughlin and Sam Arnold were sentenced to “hard labor for life,” while Ed Spangler drew six years. But the Commission couldn’t make up its collective mind about Mrs. Surratt. On its first ballot, only four of its members voted to execute her. The other five could not be convinced that the evidence had disclosed that she was guilty of anything more than running a boardinghouse that catered to a mighty strange lot of roomers.

But two days of Washington’s heat did what all of the Judge Advocate’s arguments had failed to accomplish. At noon, on June 30th, the five recalcitrants voted that “the said Mary E. Surratt be hanged by the neck until she be dead, at such time and place as the President of the United States shall direct.” However, they insisted on appending a petition for commutation of the “sentence of death ... to imprisonment for life” to the record of the case which Holt was to submit to Johnson. On July 5th, the President formally approved the Commission’s sentences and ordered that Herold, Atzerodt, Payne and Mrs. Surratt be executed “on the seventh day of July, 1865, between the hours of ten o’clock a.m. and two o’clock p.m. of that day.” Whether he ever saw the recommendation for mercy or not, no one could say.

But Clampitt and Aiken weren’t ready to call it quits yet. At two o’clock on the morning of July 7th, the two young men persuaded Andrew Wylie, one of the Justices of the Supreme Court of the District of Columbia, to issue a writ of habeas corpus on the ground that prosecution by the Military Commission had deprived Mary Eugenia of her right to trial by jury. Major General W. S. Hancock, the commander of the Middle Military District, was ordered “to produce ... the body of your said petitioner” at ten o’clock the next morning. But Stanton had an ace up his sleeve. When Hancock, accompanied by Attorney General James Speed, walked into Judge Wylie’s courtroom, almost two hours after the time specified in the writ, he did not have Mrs. Surratt with him. What he did have was a message from the President, declaring that “I do hereby especially suspend this writ.” Judge Wylie had no choice—he yielded to the suspension.

The scaffold had been built in the courtyard of the Old Penitentiary Building. Just as General Hancock was presenting Johnson’s suspension order to Judge Wylie, Captain Christian Rath, the officer in charge of the execution, approved the drop. Four graves had been dug to the left of the gallows near the prison wall. At the side of each one was a pine box containing glass bottles in which the name of each defendant had been placed. Shortly before two o’clock, Mrs. Surratt, despite Payne’s last minute statement that she “was innocent of the murder of the President,” was led from her cell. Accompanied by two priests, she climbed the fifteen steps to the gallow’s platform where she sat in an armchair while an officer read the sentences aloud. Five minutes later, with her hands tied behind her back and her face covered by a white hood, she dropped into eternity.

On July 15th, the four surviving defendants, who had begun serving their terms in the Albany Penitentiary, were re-sentenced to “hard labor in the military prison at Dry Tortugas, Florida.” In 1867, O’Laughlin died of yellow fever, but Mudd was pardoned in 1868, and Spangler and Arnold one year later. In 1867, John Harrison Surratt, whom spectator Walt Whitman described as “very young ... with sharp eyes,” was tried by a Washington civil court for his part in the conspiracy. The jury voted eight-to-four for acquittal and the government decided to call it a day and dropped the charges against him. By this time, everyone knew that Stanton had suppressed Booth’s captured diary which contained an entry for April 14th, clearly indicating that it had not been until that very day that the actor had decided to kill rather than kidnap the President. Mary Eugenia had never had even a fighting chance.

2

Atlanta’s Northern Jew

The State of Georgia
versus

Leo M. Frank

The southern Negro stands halfway between slavery and freedom. On one hand, he is his own man, able to own property, to be compensated for his labor and even, in some areas, to vote. On the other, he must endure many forms of segregation, perform his community’s less desirable chores, and suffer whatever slings and arrows his white neighbors choose to send his way. But occasionally he finds himself an honest-to-goodness hero. This metamorphosis occurs whenever he mounts the witness stand to testify against another Negro whom, for one reason or another, the state wants to put out of the way. In Atlanta, in 1913, it didn’t seem to make much difference that the victim was a twenty-nine-year-old northern Jew.

After he graduated from Cornell, Brooklyn-born Leo M. Frank married a Georgia girl. With her parents’ help, he was able to buy a small interest in the National Pencil Factory, a medium-size enterprise which operated out of a four-story building on South Forsyth Street in Atlanta. National employed more than one hundred employees, most of whom were women, and Frank, who was also its production superintendent, directly supervised their work from his tiny second-floor front office.

The factory building was a narrow rectangular structure which ran 150 feet back from South Forsyth Street to a small alley. The entrance to the plant was through an enclosed hallway on the first floor. An elevator shaft was located in this hallway near the foot of a glass-enclosed stairwell. Behind this shaft there was a hatchway which opened into the basement. Outside of a boiler and some lockers for Negro employees, the cellar was empty.

The stairs led up to the building’s second floor where Frank’s small cubicle was located. His office opened into a large room where most of the plant’s clerical help worked. At the very rear of the building was National’s metal room where tips were attached to the ends of completed pencils. The metal room, which was separated from the rest of the second floor by a wooden partition, was entered by means of a double glass door. The actual manufacturing of lead pencils was performed on the third and fourth floors.

National’s employees were normally paid at noon on Saturday. However, Saturday, April 26, 1913, was a holiday—Confederate Memorial Day—and Frank had met his payroll the day before. But some of the girls who worked in the metal room had been laid off the preceding Monday because the plant had run out of pencil tips. Some of them decided to take advantage of the holiday and pick up the few dollars owed them for their single day’s work. One girl, fourteen-year-old Mary Phagan, who lived in an Atlanta suburb, decided to kill two birds with one stone—she would pick up her pay at the plant and then take in the parade which was scheduled to start at two p.m.

Mary ate an early lunch of cabbage and wheat bread and left her house at 11:45. She boarded a street car which let her off at the corner of Broad and Hunter Streets, just a block away from the pencil factory. She arrived at National shortly after noon and went immediately to Frank’s office where she received a pay envelope containing $1.25. She asked the superintendent whether a new supply of metal had arrived and, when he said “No,” she left the office, and he listened to her footsteps as she went down the stairs to the first floor. Only one other person was ever to see her alive again.

Fifteen hours later, Newt Lee, the factory’s night watchman, was making his rounds through the darkened building. In the cellar, near the back of the building, he found the body of Mary Phagan. The girl had been strangled and it appeared that she had probably been raped. Although no spermatozoa were found on her body or her clothes, the epithelium of the walls of the vagina was torn and bruised and her underwear, which was ripped, was spotted with blood. From the condition of her clothes, it was obvious that whoever had killed the girl had dragged her body along the cellar floor. There was a deep cut on her head and numerous bruises on her arms and legs.

Newt Lee was a Negro which was enough to make him a prime suspect. He was immediately arrested and thrown into the Fulton County Jail, and it seemed that the Atlanta police had more than enough to mark the case solved. But because somebody thought that Frank had appeared unduly nervous when he was informed of Mary’s death, the police decided to book him, too. Frank proved anything but an uncooperative prisoner. He hired private detectives to assist the Atlanta constabulary in its efforts to find the girl’s murderer, and persuaded his captors to allow him to spend some time alone with Lee in his cell in order to induce him to talk.

But the night watchman stuck to his plea of innocence and was soon released while his employer was held for the action of the grand jury. A garrulous prostitute informed the police that Frank had telephoned her the night before the murder and pleaded for a room. He had told her that it was a matter of “life and death.” She also swore that, on the day after Mary’s body was found, he had offered her a large sum of money to leave town. Although she later repudiated her entire story and disappeared, the damage was done and Frank, who was referred to by a local magazine as “this filthy, perverted Jew of New York,” was indicted on May 24, 1913, for Mary’s murder.

When the dead girl’s body was found, two notes, scribbled on sheets of paper ripped from a scratch pad, were discovered on the floor near her. Written in pidgin English, they claimed that “a long tall negro” had been making love to Mary and that “i write while play with me.” According to the author “he said he wood love me, laid down, play like the night witch did it, but that long tall negro did buy his self.”

The police were convinced that Frank had written the notes in an attempt to throw the blame on Lee. This theory was somewhat shaken when, on the Thursday after the murder, a Negro porter named Jim Conley was discovered scrubbing a bloodstained shirt in the factory’s basement sink. Conley, who was later described as a “low squatty Negro with a gingercake complexion,” was picked up and lodged in the county lockup where he languished for almost three weeks. However, when he finally convinced the police that he could not write, he was given back his shirt and released.

Then Harry Scott, a Pinkerton operative engaged by the pencil factory to solve the crime, discovered that Conley was much more literate than he had let on. Now thoroughly frightened, the porter was returned to jail where he poured out a tale of sex and murder that was sure to find ready listeners. He said that on April 26th he had stood watch for Frank, who habitually used the factory as seraglio, when the superintendent had assaulted and killed Mary Phagan. Then, after helping his employer hide the body in the basement, he had written the two notes which had been found near her corpse. In all, he told the investigators from the Solicitor General’s office four different versions of this story. As each one was investigated and found untenable, Conley assured his avid audience that “Sure, I lied but I swear to God I am telling the truth this time.” The following July, he was to tell a fifth story on the truth of which a man’s life was to depend.

Although Frank testified before the coroner’s jury and claimed that he neither knew Mary Phagan nor had killed her, he was swiftly indicted for her murder and his trial began on July 28, 1913, in the Fulton County Courthouse before Superior Court Judge L. S. Roan and an all-male jury. By the time the trial got under way, all Atlanta had prejudged the “Jew of New York” and the newspapers were off and running on an orgy of sensationalism that was not to die down until Leo Frank had become the symbol of the Gate City’s greatest shame.

Conley was, by all odds, the prosecution’s most important witness. Ordinarily, the testimony of a Negro who “always seemed to be kind of nervous or half drunk” wouldn’t have carried much weight in a Georgia court. But what Arthur Garfield Hays referred to as “counter-prejudices” were at work. To the rednecks, a Jew from Brooklyn was even worse than a “no-account nigger” and Conley’s audience was sublimely ready to believe every word he uttered.

He told a fantastic story. Frank had come to him early on the morning of April 26th and said: “I want you to watch for me like you have been doing the rest of the Saturdays.” According to Conley, for more than two years he had been picking up a little extra change by acting as Frank’s lookout while the superintendent was enjoying himself with various women in his office. “I always stayed on the first floor ... and watch for Mr. Frank, while he and a young lady would be upon the second floor chatting.”

On this particular Saturday, the witness had been given very precise instructions as to the afternoon’s activities. “Now, there will be a young lady here after a while,” Frank had told him, “and me and her are going to chat a little.” When the girl arrived, the superintendent would “stomp like I did before” and Conley was to shut the door that led to second floor. “Now, when I whistle, I will be through, so you can go and unlock the door and come upstairs to my office like you were going to borrow some money from me and that will give the young lady time to get out.”

Shortly after noon, he swore, he had seen Mary Phagan climbing up the steps to the superintendent’s office. He had heard her footsteps approaching Frank’s cubicle and then the sound of two people walking toward the metal room. A few minutes later, there was a scream, followed by the sound of someone running from the metal room to the front of the building. At that moment, another young lady had entered the building, walked up the stairway to the second floor and immediately come down and left the factory. How she had opened the locked door was anybody’s guess.

Apparently, Conley was used to an occasional scream or two emanating from the second floor on Saturday afternoons because he promptly went to sleep. “Next thing I knew, Mr. Frank was up over my head stomping, and then I went and locked the door ... and the next thing I heard Mr. Frank whistling. When I heard him whistle, I went and unlocked the door just like he said and went on up the steps. Mr. Frank was standing up there at the top of the steps, shivering and trembling and rubbing his hands like this. He had a little rope in his hand, a long, wide, piece of cord. His eyes were wide and they looked right funny. He looked funny out of his eyes. His face was red.”

After Frank had composed himself, he told the porter that there had been a little trouble upstairs. “I wanted to be with the little girl,” he had said, “and she refused me, and I struck her, and I guess I struck her too hard, and she fell and hit her head against something, and I don’t know how bad she got hurt. Of course, you know that I ain’t built like other men.”

The two men had then gone upstairs to the metal room where Conley had picked up the dead girl’s body and carried it to the elevator. He had taken it to the basement where it was placed on a trash heap near the rear of the building. Then, Frank had ordered him to write the two notes which were eventually found near the corpse. The porter insisted that the defendant had dictated the notes to him and had promised him $200.00 for his help in covering up the crime. Frank’s bank balance on the day before this grandiose offer was exactly sixteen dollars.

After Conley had graphically described the murder itself, Hugh M. Dorsey, the Solicitor General of Georgia, made him recount what he had witnessed on other Saturdays when he claimed Frank was entertaining some of the easier ladies of Atlanta in his upstairs lovenest. He remembered one girl in particular, a Daisy Hopkins, who had been a steady visitor to the second-floor playroom. Just before Thanksgiving of 1912, he had inadvertently wandered into the superintendent’s office where he saw Daisy “sitting down in a chair and she had her clothes up to here, and he was down on his knees and she had her hands on Mr. Frank and I found them in that position.” When the couple left the office, they found the inquisitive porter waiting in the anteroom.

Q. What was said when they saw you?

A. When Mr. Frank came out of the office, Mr. Frank was hollering, “Yes, that is right, that is right;” and he said, “That is all right, it will be easy to fix it that way.”

According to Conley, the defendant was equally at home in other parts of the factory. “I have seen him another time,” he said, “There in the packing room with a young lady lying on the table.”

Q. How was the woman on the table?

A. Well, she was on the edge of the table when I saw her.

Before he left the stand, the witness, who proudly described himself, in Frank’s words, as “the best nigger I ever saw,” had titillated the spectators with a running account of two years as a peeping Tom in the pencil factory. What went on during those languorous Saturday afternoons was enough to shock a satyr. “Why,” Conley said, about Frank, “I have seen him in a position I haven’t seen any other man that has got children.”

But Frank wasn’t the only one whom Conley had observed making hay in what must have been the most sybaritic factory in Georgia—or anywhere else, for that matter. Once, Frank and his paramour of the moment had been joined by a Mr. Dalton and another lady. They had told the porter to “go down and see nobody don’t come up and you will have a chance to make some money.” Dalton, who was to return to the plant on many future occasions, usually took his playmates down to the basement. From his first-floor observation post, Conley was able to watch both the stairs leading to Frank’s office and the hatchway to the cellar. He evidently proved to be sharp of eye for, until the death of Mary Phagan, no one in Atlanta knew that more was being made at National than pencils. For his services, he received from twenty-five cents to one dollar a sortie. Although Dalton later testified that he had found the factory a convenient place in which to make love, he denied that he had ever seen Frank similarly occupied.

According to Frank, Mary Phagan had arrived in his office at 12:12 p.m. that Saturday. Another metal room worker, Monteen Stover, who had also gone to the factory to pick up her pay, said that she had been in the plant from 12:05 to 12:10. Since Conley had sworn that Miss Stover had entered the building after the dead girl, then Mary must have entered the plant before 12:05. However, Frank’s stenographer had taken the last of his dictation at 12:02, at which time she went home. Thus, it was clear that the only time in which the superintendent could have been alone with Mary was between 12:02 and 12:05. Lemmie Quinn, the factory foreman, had seen him in his office at 12:20 when, Quinn testified, he had exhibited no sign of nervousness.

According to its schedule, the English Avenue car on which Mary had taken her last ride was due to arrive at the corner of Broad and Marietta Streets at 12:07½ p.m. Mathas, its motorman, was certain that “we were on schedule.” He also believed that “we got to Broad and Hunter about 12:10.” It was at the latter crossing that Mary had left the street car and gone directly to the factory which was only a block away.

Hollis, the conductor, was just as definite. “We ran on schedule that day,” he testified. “We got to Broad and Marietta 7½ minutes after 12, schedule time ... it takes 2½ minutes to run from Broad and Marietta to Broad and Hunter. I have timed the car again and again since then.” Occasionally, a car would run ahead of schedule but “hardly ever.” He insisted that it was “against the rules of the company to get to the city ahead of time.”

The division superintendent backed up the motorman and the conductor as far as the schedules went. However, he remembered that the men frequently came in ahead of time. Just a week before the trial, he had suspended a motorman for arriving a few minutes before his scheduled time. Sometimes, one car would “cut off” another which was ahead of it and come in much too early. On one occasion, he had seen one car cut off another which was scheduled to arrive at Broad and Marietta at 12:05.

In rebuttal, the prosecution put one of the line’s inspectors on the stand. He had never heard of a 12:07½ time for reaching Broad and Marietta; as he remembered it, the schedule called for a 12:07 arrival at that crossing. On one occasion, he had seen Mathas cut off the car in front of him. The men liked to come in ahead of schedule “on relief time, for supper and dinner.” In fact, the crew on Mary’s car had been relieved for lunch just after it arrived in the center of the city after dropping her off at Broad and Hunter.

At 12:50 that day, Frank had announced to several people in the factory that he was going home for lunch. Three employees had seen him leave the building ten minutes later and a dozen witnesses passed him as he walked home where he arrived at 1:20. Yet Conley had said that it had been 12:56 when he had seen Frank at the head of the stairs with a piece of rope in his hand. He had also testified that the two notes had been written after one o’clock and that Frank was still in the building when the porter left at 1:30.

Conley had stated that Mary’s body had been taken to the basement in the electric elevator that serviced the building. But two factory employees who had been working on the fourth floor that afternoon had not heard the whirring noise that always accompanied its operation. More important, a pile of trash that Conley himself had observed at the bottom of the elevator shaft on Saturday morning was not crushed by the descending car.

The porter had also insisted that Mary had been killed in the metal room. However, no blood was found anywhere on the second floor or in the elevator cab. But in the basement, Atlanta police had found blood scattered on the floor, the walls and the inner door that led to the alley in back of the plant. Incidentally, the hasp of the outer door had been pried off with an iron bar.

Frank’s attorneys were convinced that Conley, who was on a holiday toot, had attacked Mary and killed her. It was their opinion that the cinders which were found all over her clothes indicated that Mary had put up quite a battle for her life in the cellar and that it had taken the drunken porter some time to kill her. After her death, he had suddenly come to his senses and decided to write notes putting the blame on a “long, sleam tall negro.” Since he was a stocky, light-colored Negro, this description would, he had thought, prevent suspicion from falling on him. His last precautionary effort had been to wash his bloodstained shirt in the basement sink on the Thursday after the murder.

In addition to trying to prove that Frank was a sexual deviate, the prosecution was determined to show that he had had his eyes on Mary for a long time. W. E. Turner, a boy who worked as a messenger at National, said that “I saw Leo Frank talking to Mary Phagan on the second floor about the middle of March.... There was nobody else in the room then. She was going to work when he stopped her. She told him she had to go to work. He told her that he was the superintendent of the factory and that he wanted to talk to her ... she backed off, and he went on towards her, talking to her. The last thing I heard him say was he wanted to talk to her.” At this point, Turner had left the floor and had seen and heard nothing else.

Dewie Howell, a girl who had once labored in the metal room with Mary, had been found by the prosecution in Cincinnati’s Home of the Good Shepherd. Miss Howell had worked at the pencil factory during February and March of 1913. She had “seen Mr. Frank hold his hand on Mary’s shoulder. He would stand pretty close to Mary when he talked to her. He would lean over in her face.” Irene Jackson, another National employee, had seen him open the door of the girls’ dressing room one afternoon and stare inside.

After Frank had been arrested, four policemen came to the jail with Conley in tow and insisted on seeing the defendant. Frank had refused to talk to them because his lawyer wasn’t to be present at the conference. Dorsey took great pleasure in pointing out that it had been one of the private investigators hired by the factory at Frank’s request who had suggested that Conley be taken to the superintendent’s cell in an effort to shake the truth out of the porter. He was later to tell the jury that Frank had not been so coy at the time he had requested permission to visit Newt Lee’s cell when the night watchman was still under suspicion.

Since the time of Mary’s visit to the factory was crucial to both the state’s and the defendant’s cases, each side tried to show by the condition of the food in her stomach how many minutes had elapsed between her 11:30 lunch and the time she died. Dr. H. F. Harris, Dorsey’s medical expert, was the secretary of the Georgia Board of Health while Dr. W. F. Westmoreland, who testified for the defense, was its former president. Harris thought that the girl had eaten her cabbage and wheat bread “perhaps three quarters of an hour or half an hour or forty minutes, or something like that, before death occurred.” Westmoreland estimated that death had occurred nearer to one o’clock. Both physicians had previously been involved in an altercation provoked by charges of professional misconduct being filed against Harris by Westmoreland. The former was subsequently cleared and his accuser forced to resign as president of the Board of Health. There was bad blood all around and the two physicians effectively neutralized each other.

When the defense took over, it tried to dispel the aura of sexual degeneracy that the Solicitor General had so painstakingly developed. A reward of $5000.00, offered by William J. Burns to anyone who could turn up a single immoral act in Frank’s past life, went begging. Even the Atlanta police, who could hardly be classed as impartial observers, were unable to locate any evidence in Brooklyn or Ithaca that in any way implicated the defendant. So clean was his record that Chief Beavers did an about-face and insisted that the police had never claimed that he was a degenerate. But if Atlanta officialdom had changed its mind, the man in the street still saw Frank as the anti-Christ.

Dorsey, who was later to refer to the sodomy trial of Oscar Wilde in his summation, had also introduced testimony that Mrs. Frank had never visited her husband in jail. What could be clearer evidence that he was guilty of murdering what Tom Watson’s The Jeffersonian referred to as “our little girl—ours by the Eternal God!” To rebut these inferences, the defense put witness after witness on the stand to testify to Frank’s good character. But Judge Roan consistently permitted Dorsey to undermine the effect of their testimony. The cross-examination of Mary Pirk, a National worker, was typical.

Q. You never heard of a single thing immoral during the five years?

A. Yes, sir, that’s true.

Q. You never knew of his being guilty of a thing that was immoral during the five years—is that true?

A. Yes, sir.

Q. You never heard a single soul during that time discuss it?

A. No, sir.

Q. You never heard of his going in the dressing room there of the girls?

A. No, sir.

Q. You never heard of his slapping them as he would go by?

A. No, sir.

The trial was destined to last for a month. As it wore on, popular feeling against Frank grew by leaps and bounds. In its last week, the Solicitor General was carried down the steps of the courthouse at the end of each day on the shoulders of a surging crowd that shouted, “Hurrah for Dorsey.” On August 23rd, when one of Frank’s character witnesses was on the stand, the spectators began to laugh and it took all of Judge Roan’s courtroom savvy to quiet them down. An hour later, a claque in the rear of the room began to applaud exchanges of causticities between Dorsey and various defense lawyers. Again, Judge Roan stepped into the breech and restored some sort of order. But apparently he was at the end of his resources because he promptly called in the police and the Fifth Georgia Regiment to keep the restive audience under wraps.

On August 25, 1913, the trial’s last day, the courthouse was ringed by thousands of people who shouted such pleasantries as “Hang the Jew or we will hang you!” into the Pryor Avenue windows of the first-floor courtroom. As the Atlanta Constitution described it, “A veritable honeycomb of humanity spread over the section ... Men and women clung to the walls of buildings and stood in doorways. Windows were crowded with women and girls and children. It was as though a street audience had gathered to watch an eventful procession.”

The situation grew so bad that Roan cleared the courtroom when the jury announced that it had decided on a verdict. The cheering from the outside reached such a crescendo that it was almost impossible to hear the foreman inform the judge that he and his colleagues had found Leo Frank guilty of murder in the first degree. When a court bailiff leaned out of a window and shouted the word “guilty,” a reporter noted that “a combined shout ... rose to the sky. Pandemonium reigned. Hats went into the air. Women wept and shouted by turns ... Few will live to see another such demonstration.”

Judge Roan, who had previously said that “if Christ and his angels came down here and showed this jury Frank was innocent, it would bring him in guilty,” denied his attorneys’ motion for a new trial despite the fact that he publicly acknowledged that he did not know “this morning whether Leo Frank is innocent or guilty.” The next day, Frank was sentenced to be hanged in the courtyard of the “common jail of Fulton County.” Before Roan went through the dreary formalities that marked the first step in taking a man’s life, he afforded the slender, dark-haired defendant an opportunity to make a last statement. Frank, in a voice that was all but drowned out by the clamor outside the courtroom, swore that “I am innocent of little Mary Phagan’s death, and have no knowledge of how it occurred....”

On February 17, 1914, the Supreme Court of Georgia affirmed the death sentence. Ten months later, the United States Supreme Court refused to intervene although Mr. Justice Holmes was moved to state that “I very seriously doubt if the petitioner has had due process of law ... because of the trial taking place in the presence of a hostile demonstration and seemingly dangerous crowd.” It looked very much as if Leo Frank would never live to see his thirty-first year.

But on June 30, 1915, Governor John H. Slaton, with rare courage, sacrificed his political career and commuted Frank’s sentence to life imprisonment. Unfortunately, his beau geste was an empty one because, several months later, a mob broke into the prison hospital where Frank was recovering from an attack by a fellow prisoner who, in a frenzy of self-righteousness, had cut his throat, rushed him back to Atlanta, and hanged him from a tree that grew in front of Mary Phagan’s house. After the jury’s verdict, the defendant had asked a reporter, “Can it be that the law, and our system of its administration, is so inexorable that truth and innocence may never be heard after once the die is cast? Is the door forever closed and the way barred?” His swinging body was the answer.

3

In Union There is Death

The State of California
versus

Thomas J. Mooney

Saturday, July 22, 1916, was a day that San Francisco would long remember. Its Chamber of Commerce, anticipating early American entrance into World War I, had organized a Preparedness Day parade which was scheduled to kick off at 1:30 p.m. The two-mile line of march extended from the Ferry end of Market Street to the Civic Center, and every organization in the Bay area that could muster a column of fours was to be represented. Market Street had been closed to all traffic shortly before the parade started and an enormous crowd lined both sides of the route. The various units had assembled in the Embarcadero at noon and marched westward to the music of more bands than San Francisco had ever heard at one time. At 2:06 p.m., as the Spanish-American War veterans stepped smartly out of Steuart Street to join the parade, an enormous explosion shattered the air. When the smoke cleared, the police found eight mutilated corpses lying in the street.

It was soon clear that a bomb had gone off on the westerly sidewalk of Steuart Street, some seventeen feet in from Market Street. Captain Duncan Matheson of the San Francisco Police, who was on duty nearby, ordered Lieutenant Stephen Bunner to take care of the wounded while he kept the parade moving. As soon as the dead and injured had been taken away, Bunner ordered the sidewalks washed with fire hoses. He later stated that he “was satisfied that all the evidence had been collected by the detectives and the persons around before I ordered the sidewalks washed.”

About an hour and a half later, District Attorney Charles M. Fickert, accompanied by a San Francisco banker named Frederick H. Colburn, arrived at the scene. Colburn found some “nickel flattened bullets and a ragged piece of pipe, one or two .32 cartridge shells, rim fire,” on the sidewalk. A remarkably curious man, he then asked for a sledge hammer and “broke a strip three or four inches wide around the little hole in the sidewalk where the concrete was shattered.” Some more cartridges and several jagged pieces of iron were found in the hole. Colburn then pushed in some loosened bricks in the adjoining wall and discovered a few more scraps of metal lodged behind them.

After clearing Market Street for the 42nd Division which had come over from Oakland to join the parade, Captain Matheson returned to Steuart Street, only to find that Bunner had washed the sidewalk clean. The police officer walked over the explosion area and found a bloody strip of iron, a narrow piece of metal with several nails in it, fifteen exploded .32-caliber shells, three .22-caliber bullets, and some fibre strands which he thought looked like “imitation leather.” He then returned to Market Street where he “stayed until all the parade had cleared about 4:30, and then walked back to the scene of the explosion.”

In his absence, Fickert and Colburn had arrived and the latter had enlarged the break in the sidewalk. Matheson was extremely angry that no efforts had been made to guard the explosion area and he ordered Steuart Street roped off. He also set up a police detail to keep the souvenir hunters from removing any evidence that had not yet been picked over. The detectives who had swarmed over the area minutes after the explosion had taken no measurements of the size of the hole in the sidewalk and had made no record of the positions of the victims’ bodies.

That evening, Martin Swanson, a former Pinkerton operative who was employed by the Public Utilities Protective Bureau, strolled into Fickert’s office and nonchalantly remarked that he knew who was responsible for the tragedy. He named two coast labor leaders—Warren K. Billings and Thomas J. Mooney—as the ones who had planted the bomb. They had been assisted, he said, by Israel Weinberg, a cab driver, Edward D. Nolan, the President-elect of Machinists’ Lodge 68, and Mooney’s wife, Rena. Swanson was evidently quite persuasive because Fickert immediately put him on the payroll, and picked up Billings, Weinberg and Nolan four days later. The Mooneys were on vacation in Montesano, Washington, when they read that they were being sought as suspects in the bomb case. After Mooney had wired Chief of Police White that “this attempt to incriminate me in connection with bomb outrage is one of the most dastardly pieces of work ever attempted,” the couple took the first train back to San Francisco. They were arrested on July 27th, by policemen who boarded their coach at Guerneyville.

This wasn’t the first time that Swanson had used Mooney’s name in vain. Three years earlier, when the linemen of the Pacific Gas & Electric Company in neighboring Contra Costa County had gone on strike, the detective had been hired to find out who was dynamiting the utility’s property. He had accused Mooney, who was leading the strike, of possessing explosives, and the union organizer was tried three times before he was eventually acquitted. Swanson had been more successful with Billings who was sentenced to two years at Folsom Penitentiary for carrying dynamite.

On June 10, 1916, Mooney, as a representative of the Amalgamated Association of Street and Electric Railway Employees of America, called an organization meeting of the carmen of the United Railroads, San Francisco’s trolley lines, at Woodsman’s Hall. Early the next morning, three of the carrier’s transmission towers near San Bruno were slightly damaged by dynamite. According to Weinberg and Billings, Swanson went all out to pin this bombing on Mooney. On July 17th, he hailed Weinberg’s taxi and offered the cabbie $5000.00 to swear that he had driven Mooney to San Bruno after the meeting at Woodsman’s Hall. When he repeated the offer two days later, Weinberg told him that he had no information to sell.

On July 18th, Swanson met Billings at the office of the Pacific Gas & Electric Company, where the latter had gone to pay a bill. The detective promised him a machinist’s job with the utility as well as five thousand dollars if he would help connect Mooney with the San Bruno explosion. Billings was as uncooperative as Weinberg had been, and Swanson soon gave him up as a bad job. He later admitted that he had spoken to both men about Mooney’s part in the bombing of the transmission towers, but denied that he had offered any money to either one.

When Billings, Weinberg, Nolan and the Mooneys were arrested, they were held incommunicado until the Grand Jury met on the evening of August 1. Meanwhile, San Francisco was staging mass meetings at which speaker after speaker urged that all radicals, anarchists and liberals be run out of town. The Law and Order Committee of the Chamber of Commerce raised more than $400,000 for the avowed purpose of ridding the city of its “anarchistic” elements. All of the newspapers embarked on an orgy of speculation, openly inspired by the District Attorney’s office, in which no effort was made to separate fact from fancy. As far as the Examiner, the Call, the Chronicle and the Bulletin were concerned, Fickert had an open-and-shut case against all the suspects, and it made little difference what they printed under their banner headlines.

The first witness before the Grand Jury was Henry Kneese, the City Marshal of South San Francisco, who said that he had found a suitcase containing forty sticks of dynamite on the state highway leading to San Bruno on June 10th. Apparently, Fickert wasn’t above some titillating irrelevancies to soften up a jury. Kneese was followed by Dr. David E. Stafford, the physician who had performed the autopsies on Hetta Knapp and the seven other persons killed in the July 22nd blast. Dr. Stafford stated that he had removed small pieces of .22- and .32-caliber shells and particles of iron pipe from their bodies. After Will George M. Hon, the foreman of the Cadillac Garage, testified that, when Billings was discharged from his mechanic’s job in June, he had owned a brown suitcase, Captain Matheson and Lieutenant Bunner described the scene at Steuart and Market Streets following the blast

Earl R. Moore, a policeman, was the first witness to place any of the defendants on Market Street before the explosion. He had been ordered to clear the parade route of all traffic. Shortly after one p.m., he had noticed an old Ford jitney with a broken horn and a torn rear cushion parked in front of 721 Market Street, a two-story building directly across the street from the offices of the Preparedness Day Parade Committee. While he was standing near the automobile, waiting for its owner to show up, he had observed a man loitering on the sidewalk a few feet away. When Moore asked him if he knew who owned the vehicle, the man had answered, “Oh, he’ll be here in a minute.” The policeman “went on down toward 4th Street and I came back in about ten minutes again and the machine was gone.” Four days later, he identified Billings as the man who had spoken to him that afternoon.

Herbert C. Wade, the principal of a Hawaiian school, had been in no mood to watch the Preparedness Day Parade. Bothered by a bad toothache, he had been heading for his dentist’s office in 721 Market Street. As he walked toward the entrance to the building, Billings passed him “and went up the steps into the dental office. He had a suitcase or something of the sort with him.” A few minutes later, the witness saw a man and woman but he was unable to say that they had been Mr. and Mrs. Mooney. “It was somewhere around one o’clock when I saw Billings,” he told the jurors, “ten minutes to one or ten minutes after.”

The dentist’s receptionist, Estelle G. Smith, had been waiting for the parade to start when Billings entered the office. He had a suitcase in his hand and told her that he was a motion picture cameraman for the San Francisco Chronicle. When he asked for permission to photograph the parade from the roof, she told him that he would have to wait until the dentist returned from lunch. Because she thought he was “sick from the heat,” she had decided to let him go up to the roof at once. She had asked a friend, Louis Rominger to “Please show this man to the roof” while she returned to the window to watch the parade, which had just started. When Mayor Rolph passed by in the street below, she had waved a towel at him and shouted, “Hello, Mayor Rolph!” According to photographs taken by the International Film Company, the Mayor had passed 721 Market Street at 1:50 P.M.

At “half after one or so,” a tall “very repulsive looking man, long mustache,” who looked like “a Russian Jew,” burst into the dental office and attempted to push by Miss Smith who was standing in front of the stairway. When she threatened to call the police, a woman ran up the first-floor steps and persuaded the man to leave the building. Five minutes later, a “very agitated” Billings came down from the roof and, after thanking the receptionist for her kindness, hurriedly departed. She was sure that the woman had been Rena Mooney.

Alice Kidwell, Miss Smith’s mother, had been seated at the window in the dentist’s reception room when she saw the Mooneys talking to two men on the sidewalk outside the building. Mrs. Mooney left the group for a moment and, when she returned, “I saw her with her hand waving it up this way, beckoning to someone on the roof.” A few minutes later, the young man who had been taking pictures on the roof left the building. Mrs. Kidwell remembered saying, “Good gracious, he couldn’t have taken very many because he was up there just a short time.” She last saw the Mooneys walking west on Market Street.

A tramp waiter by the name of John McDonald was the only witness before the Grand Jury who testified to seeing both Mooney and Billings at Steuart and Market Streets. He had been standing on the east side of Steuart, some fifteen feet south of Market, when he noticed a “young fellow coming down carrying a grip in his hand.” Because the man appeared so nervous, McDonald kept his eye on him as he walked down Steuart Street. Just before he reached the corner, he “transferred the suitcase over to his left hand and set it down near the wall.” Then, the young man walked to a saloon at the comer of Steuart and Market where he was joined by another man who had been inside. He identified the youth who had been carrying the suitcase as Billings and the man who had emerged from the bar as Mooney.

McDonald watched the two men talk together for a few minutes and then he saw Mooney take out a pocket watch and check it with the clock in the Ferry Building tower. Seconds later, Billings “took a cut right through the parade toward the other side of Market Street as though he were going back to the Ferry Building.” After waiting a few minutes, Mooney also crossed Market Street “as though he was going across to Drum Street,” one block west of the Embarcadero. By this time, the witness had lost interest in both men and decided to walk up Market Street. He had reached the Alameda Cafe, some 150 feet from where he had been standing, when the explosion occurred.

Mrs. Mooney, who was known professionally as Rena Herman, had been teaching music in a fifth-floor studio in the Eilers Building at 975 Market Street for almost eight years. On the day of the parade, she had watched the spectacle from the roof of her building with her husband and two relatives. When they arrived on the roof, “the parade hadn’t started then. Everybody was yelling it was starting. We hurried to get up there. We didn’t leave the roof until after the parade passed.” Neither she nor Tom had been at 721 Market Street on July 22nd; in fact, they hadn’t left the Eilers Building until five o’clock that evening.

Although Mooney, Billings and Nolan refused to testify because they had not been permitted to talk to their lawyers, Weinberg stated that “I am willing to answer every question you wish to ask me.” He denied that his taxi had been parked in front of 721 Market Street on the afternoon of the explosion or that he had been in the vicinity of Steuart and Market around two o’clock. Although he swore that his jitney was in perfect working condition, he admitted that “the machine in the back is torn, the thread.” At one p.m. on the 22nd, he was driving a passenger to Fillmore and Sutter. Then he had gone to the office of the gas company and paid his bill which was two months overdue. Because the parade was disrupting all traffic, he had decided to call it a day and go home. “I went to the butcher shop,” he said, “and got some meat and went home about three or a little after three.” He had remained home until “five or a little after.”

When Mooney was arrested on the San Francisco train, the police who searched him found the key to Nolan’s basement apartment at 82 Angelica Street in his pocket. Officer Peter J. Hughes, who had been a member of the squad which ransacked the apartment, testified that he had found plaster of Paris, a box containing saltpetre and another bag that contained what “looked like black powder.” A motorcycle belonging to Mooney, twenty pounds of epsom salts, a bag of flour, and a small quantity of flashlight powder were also uncovered. According to Hughes, “We asked him [Nolan] several times before we went down in the basement if there was anything in the basement. He said ‘no.’”

On August 2nd, the Grand Jury returned a true bill, charging all five suspects with the murders of the eight people who had been killed in the explosion. Fickert, whose first act after having been elected District Attorney in 1909 had been to obtain the dismissal of graft indictments against officers of the United Railroads, looked forward to the Mooney trial with a relish that was undisguisable. However, he decided that it might be more expedient to try second offender Billings first and the latter’s trial began on September 11, 1916, in the Superior Court of San Francisco, before Judge Frank H. Dunne.

The prosecution called most of the witnesses who had testified before the Grand Jury. McDonald repeated his story of seeing Billings at Steuart and Market just before the explosion. “As near as I can remember it must have been eight or ten minutes to two when I first discovered him.” After describing the meeting of Billings and Mooney in front of the saloon, the witness said that he “went down to the restaurant on the Embarcadero, 34 was the number, and got a glass of buttermilk.” It was while he was there and not, as he had told the Grand Jury, in front of the Alameda Cafe, that the explosion took place. Also, he now said that he had lost both men in the crowd after their meeting at the corner of Market and Steuart.

Fickert had found a new witness to support McDonald’s story. John M. Crowley was an automobile mechanic who worked on the corner of Steuart and Mission. He was positive that he had seen Billings at 1:55, “standing about three feet from where I was.” He saw him again at the same place immediately after the explosion and he remembered that the defendant had refused to take off his hat when the band was playing “The Colors.” But he was certain that Billings had not been carrying anything in his hands at either time.

Estelle Smith and Herbert Wade swore that they had seen Billings at 721 Market Street at approximately one p.m. on July 22nd. Peter Vidovich, an eccentric patient who had decided not to wait for the tardy dentist, was just descending the steps to the street when he saw Billings struggling up the narrow stairway with a suitcase. “I backed up and stood behind the banister on the top of the stairway and give him a chance to come up.” The suitcase was, he remembered, “kind of pale color like, rather deeper that the ordinary suitcase ... pale color of chocolate or wine color. It was a kind of funny suitcase, it was kind of different.”

Mellie Edeau and her daughter, Sadie, had come from Oakland to see the parade. Although neither woman had been called before the Grand Jury, they both swore that they had seen Billings on the roof of 721 Market Street. Shortly before one p.m., they had been standing in front of the Kamm Building which was next door to 721. Sadie Edeau testified that “when I first saw Billings he was on the roof of 721 Market, leaning over the edge of the building. He had a suitcase in his hand.” Her mother said she had noticed him “on top of the roof ... with a suitcase and he was talking to someone on the street below him.”

According to four employees of Uhl Brothers, there had been a cameraman with a suitcase on the roof of 721 Market Street on Parade Day. Alphonse De Caccia had seen a young man with “a kodak, a kodak grip—a black grip about two feet long and a foot wide” sitting in a corner. This man, he said, had been there when DeCaccia left “about 4:15.” Tracy F. Barrett had observed a “man sitting in the west corner [with a] camera very similar to a newspaper reporter’s camera,” while William B. Crump was sure that this man was still there at “about ten minutes after two” when the witness left the roof. Henry Pincus had seen a man “sitting on the firewall” when he arrived on the roof just as Crump was leaving.

On the day of the blast, Billings had left his house at 1:30 p.m. As he headed for Market and Kearney, he had noticed “a large battleship gray Hudson automobile” on Union Square Avenue. He ended up at Market and Sixth where he “bought an extra with an account of the explosion.” Then he had helped a friend of his who was running a jitney bus between the Ferry and uptown. At no time during the day had he been “at Steuart and Market or 721 Market. I didn’t see Mrs. Kidwell, Estelle Smith, or Rominger, and I had no suitcase.”

On September 23rd, the young machinist was convicted of murder in the first degree, but the jury fixed his punishment at life imprisonment. Now, with Billings on his way back to Folsom, Fickert could concentrate on the man whom he had once described as “a direct action anarchist.” On January 3, 1917, Mooney’s trial began before Judge Franklin A. Griffin and twelve Bay area citizens. Fickert, who had let one of his assistants handle the Billings prosecution, had had enough of the sidelines and showed up with Edward A. Cunha and James M. Brennan, two stalwarts from his office. Mooney was defended by W. Bourke Cockran, Maxwell McNutt and John Lawlor. It took two weeks to select a jury from the 177 talesman who were called and sworn and it was not until January 18th that Ed Cunha was able to begin the state’s campaign to convince Foreman William V. MacNevin and his eleven San Francisco County colleagues that the bombing had been the opening gambit in a Wobbly-inspired campaign to overthrow the State of California.

After six physicians had testified to the wounds and causes of death, Fickert called a whole battery of witnesses who described the cartridges, pieces of metal, ball-bearings and bits of imitation leather that were scattered all over the area after the explosion. Then Frederick H. Colburn, Captain Matheson and Lieutenant Bunner were put through their paces as to what they had seen and done after the blast. With these preliminaries behind him, Fickert finally got around to his star witness, talkative John McDonald, who had already told the Grand Jury and the Billings panel that he had seen Mooney and Billings at the corner of Market and Steuart Streets just before the bomb went off.

McDonald had been found wandering around the Hall of Justice two days after the explosion, claiming that he had seen the men who planted the lethal suitcase. Prior to his sudden prominence, he had been a waiter at a number of cheap San Francisco restaurants. Just a week before the parade, he had been released from the hospital where he had spent several months recuperating from a serious stomach operation. The doctors had told him that he would not be able to work for some time and he had just about run through his meager savings when he walked into Fickert’s office with his story. By July 24th, rewards totalling more than $14,000.00 had been reported by the Chronicle “for the arrest and conviction of the criminals who perpetrated the bomb outrage on Saturday.”

It had been “about 1:40” when the witness arrived at the corner of Steuart and Market. He had gone to Steuart Street “because I thought there would not be such a crowd there.” After watching the parade for a few minutes, he had “moved up ten or fifteen feet on Steuart.” When he first saw Billings, the machinist was coming down Steuart Street from the direction of Mission Street. He had had a suitcase in his hand.

Q. Would you describe more in detail to the jury his actions when you saw him coming walking along Steuart Street with a suitcase?

A. Well, he was carrying the suitcase, and his head was working on a pivot, and he looked all excited as if he was worrying about something. That is what called my attention to him first.

Q. You at that time then noticed the cellar doors, the iron doors there?

A. Yes.

Q. Did he put the suitcase down before he got to the iron doors or afterwards?

A. No, before he got to the iron doors.

Q. He put it against the wall?

A. Let it down by the side of the wall.

Then he had watched Billings walk to the saloon at the corner of Steuart and Market where, just as he pushed the swinging door open, “right on the second, that man there, Mooney, he came out of the saloon.” As the two men were talking, Mooney kept checking his watch with the clock on the Ferry Building on the Embarcadero Plaza. When the brief conversation ended, Billings “started out in the crowd and I lost sight of him and my attention was drawn to this other man.”

Q. Thomas J. Mooney?

A. Yes.

Q. What did he do?

A. He took his watch out again and looked down toward the dock in the Ferry building and after he put his watch back in his pocket he drew his shoulders up and put his hand to his face like he was studying and looked alongside the building.

Q. What did he do?

A. He turned around and went through the crowd and I lost sight of him.

McDonald described the suitcase as being “kind of jersey, brownish color,” nineteen inches long, fourteen inches deep and seven inches thick. He was “just as positive as I am sitting in this chair” that Billings and Mooney were the men he had watched that July day. As far as the time was concerned, he thought that he had seen Billings walking up Steuart Street “about five minutes” after he himself had arrived at the corner at 1:40.

Cockran, who had been thumbing through the transcript of McDonald’s testimony at the Billings trial, could hardly wait for Cunha to finish with the witness. He didn’t waste any time getting down to bedrock.

Q. Didn’t you say at the Billings trial that when you saw Billings place that suitcase there it was about two o’clock?

A. Yes, but Mr. Cockran—

Q. Explain your answer. I understood you to say at the last trial ... it was two o’clock, and now you want to add something to your testimony. Am I right?

A. I know that is also the way I also testified in Judge—

Q. Can’t you answer that? Did you say at the last trial it was two o’clock when you saw Billings place that suitcase near those trap doors?

A. Yes, but I also said in Judge Dunne’s court it was eight or ten minutes of two when Billings came at the time with the suitcase.

Q. You repeat now it was eight to ten minutes of two and it wasn’t two o’clock when he put it down?

A. No, sir, I don’t say it was two o’clock when he put it down.

Q. You said it then, didn’t you?

A. Yes.

After Cockran had brought out that it would have been difficult for McDonald, who was standing more than one hundred feet away, to see the five-foot-four Billings through the crowd, the defense attorney came back to the all-important time element.

Q. Wasn’t the parade between you and Billings?

A. They were standing 50 feet off or more on Steuart Street.

Q. They were on the move at the time?

A. No, sir.

Q. Do you mean to say they were not moving at two?

A. I wasn’t there at two.

Q. Where were you at two?

A. Down towards the Alameda Cafe on Market Street or close to it.

Q. Then you were not there looking at him place it there at about two o’clock?

A. I mean about as near as I can tell to two o’clock.

Q. You don’t want to qualify it now?

A. I don’t change it.

In his testimony before the Grand Jury, McDonald had said that, after losing sight of Mooney, he had “started down Market Street and I got as far as the Alameda Cafe when the explosion occurred.” He had repeated this statement, almost word for word, at the Billings trial. Cockran decided to put the question to him once more.

Q. How far did you get when the explosion occurred?

A. Well, I had been standing down in front of the Alameda Cafe looking at the parade go by, and the parade had gone by, and I still stood there awhile and I seen the people pushing up toward Steuart and Market and I thought they were, that it was the units coming out of Steuart Street, and I was standing in front of the Alameda Cafe when the explosion occurred. When I did hear the report, I thought it was a signal for the units to come out of Steuart Street.

If McDonald could be believed (and it was obvious that Cockran was not prepared to accept this thesis), he had walked some 150 feet up Market Street after watching the Mooney-Billings tableau before he heard the blast. Since he had testified that he had first seen Billings at “eight or ten minutes to two,” some “25 to 50 feet” away from the corner, that the machinist had placed the suitcase against the building wall “about two o’clock,” and that he himself had started up Market Street in the direction of the cafe before two, it had taken him more than six minutes to cover the half-block. But the witness had an answer for this: “... when I started down Market I just took my time and walked along slowly. I didn’t walk any faster than a snail crawls almost. It took me a little time to get down to the coffee house.” Didn’t Mr. Cockran realize that he was still a very weak man?

McDonald was followed on the stand by Frank C. Oxman, a cattle dealer from Durkee, Oregon, who had replaced the syphilitic, wife-beating Crowley as a corroborative witness. It seems that he, too, had been on the corner of Market and Steuart Streets just before the explosion. He had pulled into town from Portland “between 12 and 1 o’clock,” and checked into the Terminal Hotel which was directly across Market Street from the Alameda Cafe. Then “I went to two or three restaurants and they were crowded and I couldn’t get a seat and I went over and bought some fruit and was at the corner of the street and was expecting to cross the street when the automobile drove up.”

Q. Where did it come from?

A. I call it down Market Street. It was going toward the Ferry Building.

Q. What was it attracted your attention to that machine?

A. This defendant was in the front seat holding a suitcase on the outside with his hands, on the running board.

Q. The defendant on trial, Thomas J. Mooney?

A. Yes.

He described the car as “an old Ford” and identified Israel Weinberg as its driver. He had seen Mrs. Mooney and Billings, whom he depicted as “the little auburn-haired boy,” in the vehicle’s rear seat. When Weinberg stopped the car near the saloon at the corner of Market and Steuart, “the little auburn-haired boy jumped out of the hind seat, very excitedly and very rapidly, and took the suitcase from the other gentleman that was holding it on the front of the machine.” Another man, who had been sitting in the Ford’s back seat, a man who “had a stubby mustache and looked like a working man,” got out of the car and relieved Billings of the suitcase. Then the two men had walked rapidly down Steuart Street just beyond some metal cellar stairs where Billings “took the suitcase from the other man and ... set it down by some doors.”

While all this was going on, Mooney had left the car and was standing on the curb, “right out near where I was,” watching Billings and his mustached companion walk down Steuart Street.

Q. Then what happened?

A. Then they came on back where Mr. Mooney was standing near the post and seemed to be looking for somebody, I don’t know—I think they went in the door of the building there, I won’t be sure whether all of them or not, and directly came out.

Oxman was near enough to hear Mooney tell Billings, “Give it to him and let him go; we must get away from here; the bulls will be after us.” The latter then handed something “to the other gentleman that carried the suitcase part of the way.”

Q. What happened?

A. He went across the street ... the other gentleman, I don’t know who he was.

After another brief conversation between Mooney and Billings, the machinist “went first toward the car and Mr. Mooney looked at his watch and looked at his watch and looked at the tower clock also at the same time. He glanced over to where the suitcase was after Mr. Billings left him and then he proceeded to go to the car also.” When he last saw the Ford, it had “turned into Steuart and went up Steuart.”

Oxman was certain that all of this had taken place at least twenty minutes before the explosion because he had returned to the hotel to wait for a telephone call.

Q. Now, when you got over to the hotel, did you notice anything about the time?

A. Yes.

Q. What would you say the time was when you arrived there?

A. It was 15 minutes to two o’clock.

Q. Around fifteen minutes to two?

A. Yes, because my telephone call was at two o’clock.

When Cockran took over, he wanted to know why Oxman had been so intensely interested in three men and a suitcase with a mammoth parade going by right under his nose. The witness had a ready answer to this oblique reflection on his credibility. “I thought these people were a set of thieves,” he said. “I took more than one glance at them. I thought they had stolen this suitcase and were caching it out, that was the reason I took close observation of them.” Besides, despite the fact that the cattleman weighed two hundred pounds, “Billings pushed me out of the way so he could go past.” A fat man would remember a thing like that.

Why hadn’t he reported the incident to the police when “he had noticed a mounted policeman there very close just before that?” He didn’t want to become involved. “Although I thought these men were thieves, I didn’t call a policeman, I didn’t look for one.” But he did jot down the license number of the Ford jitney—No. 5187—on the back of a Western Union envelope with the notation, “Think stolen grip. S. F. July 22.”

Thirteen-year-old Jimmy McDougall had been a flag boy with the First California Volunteers that afternoon. His unit formed in Steuart Street and had just turned the corner into Market Street when the bomb exploded. While he was waiting for the Volunteers to join the parade, Jimmy remembered seeing a light-brown leather suitcase “sitting where the hole was afterwards.” He had first seen the suitcase, which was about fifty-one inches long, ten inches wide, and a little more than fourteen inches high, “about ten minutes before I started to march.” But he hadn’t noticed any of the defendants in the area.

Before turning to les dames Edeau, Fickert called Detective John A. Dolan who had “arrived at the scene of the explosion about five minutes after it.” Like the other gendarmes who had preceded him on the stand, he described the positions of the bodies, the condition of the sidewalk, and the various pieces of metal that littered the area. When Fickert turned the witness over to him, Cockran saw a neat opportunity to put a small spike in Oxman’s story. He asked Dolan whether he had noticed any cars on Market Street after the parade had started. The detective, who had been assigned to look out for pickpockets on the sidewalks, said that he had seen no automobiles along the line of march and that he knew there was a general order excluding them from the area.

Sadie Edeau and her mother had both testified in the Billings trial. Although the two women swore that they had observed Billings on the roof of 721 Market Street, neither one had mentioned seeing any of the other defendants. Now Miss Edeau said that, shortly after witnessing Billings on the roof, “I saw Thomas J. Mooney and Mrs. Mooney ... coming down from the way of 721 Market Street.” When Billings came out of 721, she had watched him talking to Patrolman Moore. “I next saw Billings meet Mooney in the center of the sidewalk a little past the entrance to the Kamm Building a little further out on Market Street.” When she last saw the trio, they “all started down to the Ferry.” A few minutes earlier, she had seen Weinberg enter a “five-seated Ford” which had been parked on Market Street, facing downtown, and “drive down toward Third Street.” All of this had occurred “between half past one and twenty minutes to two.”

Cockran was beside himself when he took the witness over.

Q. Now, Miss Edeau, will you tell us why you didn’t mention Mr. Mooney and Mrs. Mooney and Israel Weinberg and the Kamm Building and that automobile ... at any time during the trial of the Billings case?

A. Yes, I was never asked anything about them on the witness chair.

Q. Were you asked what you saw that day?

A. I was only asked what I saw Billings do.

In fact, she hadn’t even told Draper H. Hand, the detective who had interviewed her in Fickert’s office before the Billings trial, all that she had seen because she “wanted to stay out of the affair.” But she insisted that she had revealed to him “about seeing the jitney and seeing the officer honk that horn.”

However, there was someone in whom Miss Edeau had confided before going to the police. She had spoken to Professor H. C. Migram, an elder in her church. But, while she had told him “more than I told Mr. Hand,” she was obviously not a lady who liked to reveal all at one sitting.

Q. Did you tell him everything you saw?

A. I didn’t tell him everything we saw.

Q. He told you to come over to the District Attorney and tell him everything you saw?

A. Certainly.

Q. And as I understand you, you didn’t tell him everything you saw, some of it you reserved until today?

A. Yes.

Q. Why didn’t you?

A. Because I didn’t feel like doing it.

Q. You didn’t feel like telling the whole truth?

You wanted to tell as much as you wanted?

A. The reason why I didn’t tell it was because I didn’t want to get into it.

Q. But you were in it!

A. We need not have gotten into it if we didn’t want to be truthful.

Q. But the elder advised you to go and tell the District Attorney everything you know?

A. Yes.

Q. And you went over and didn’t tell him all that you knew?

A. I think we did.

Cockran was muttering to himself when he sat down.

Mellie Edeau not only vigorously confirmed her daughter’s version, but insisted that they neither knew of any reward nor were “after the reward.” “Such a thing as that would not appeal to me,” she told Cockran. After Patrolman Moore, Peter Vidovich and Herbert C. Wade had repeated the testimony they had given in the Billings trial, Fickert called T. K. Stateler, a Civil War veteran who, like young Jimmy McDougall, had also seen “a suitcase at the place where I afterwards saw the indentation on the sidewalk.” Stateler, who didn’t have the stamina he had had at Gettysburg, had tired on his walk from his office to his unit’s assembly point in Steuart Street. “I looked for something to sit down on,” he said, “and I saw the suitcase. It was in the shade and it occurred to me to sit on it.” But a solid belief in private property had won out and he had decided to rest his G. A. R. bones on a nearby fence instead. As for the suitcase, “it looked like an old one, dark tan I should say.”

Fickert closed out his case with a lecture on the detonation of dynamite by Arthur H. Crane, an explosives expert, and the testimony of the officers who had arrested Billings and Weinberg. Lieutenant Bunner had picked up Billings at the Lane Hospital on July 26th. Later that day, he had searched the suspect’s home at 2410 Mission Street where he had uncovered a can of .22-caliber cartridges, a loaded .32-caliber pistol, a .22-caliber rifle, and ten ball bearings. Detective Hand had apprehended Weinberg in the famous Ford jitney that same day at the corner of Golden Gate Avenue and Market Street. Sergeant William R. Proll, accompanied by two policemen and the ubiquitous Martin Swanson, had ransacked the Mooney studio in the Eilers Building on July 26th. They had found “fifteen .32-caliber cartridges ... also three steel-jacketed bullets ... nine .38-caliber cartridges,” as well as an Iver Johnson pistol. On Tuesday, January 30th, twelve days after Cunha had arisen to address the newly impanelled jury, he informed Judge Griffin that “the State rests, your Honor.” Now it was Mooney’s turn.

Fickert’s case depended on convincing the jury that the cause of the blast was a time-bomb concealed in a suitcase which Mooney and Billings had planted at Steuart and Market Streets. Yet, there were witnesses who had seen an object falling from a roof just before the explosion occurred. Dr. Mora J. Moss, a physician who was marching with the Sons of the American Revolution, happened to look toward a building on the southwest corner and “saw a black object falling through the air.” When he noticed it, it was between twelve and fifteen inches from the ground. “It disappeared,” he testified, “behind the people standing on the sidewalk and a violent explosion immediately followed.” At the time, he was sure that it was a signal bomb to start the parade and had been dropped from the Ferry Building.

Fannie Dahl, Charles F. Hollfender, Louis Eris, and Maud Masterson, all of whom had been standing in the crowd on Market Street, also had seen “a dark object” flashing by. Dr. Moss had described it as “a foot to fourteen inches in length and three and a half to four inches in diameter.” Eris thought that “it seemed to be cylindrical in shape and about a foot across.” To Mrs. Masterson it resembled “an object like a balloon falling.” Janice Compton, who had a sixth-floor room in the Terminal Hotel, had been watching the parade from her window when she “saw a man crawl along the cornice of the building then being demolished just east of the saloon, walk across the roof of the southwest corner building and lean over the cornice and return, and in a second the explosion occurred.”

Thomas U. Doidge, who worked for the Fine Arts Engraving Company, said that he had been standing near the trolley pole in front of 721 Market Street, waiting for the parade. After the street had been cleared of all traffic, a car drove up and parked so close to him that he had to step aside so that its driver could get out. A few minutes later, Patrolman Moore had walked over and asked Doidge, “Is this your car?” When the witness answered, “No, sir, the driver has gone in the building here,” Moore “took hold of the horn and honked four or five times.” Shortly after the policeman had continued on his beat, the driver came out of 721, entered his car and turned left into O’Farrell Street. Doidge had not noticed any “suitcase or anything else in his hand.”

On the afternoon of July 22nd, Wade Hamilton, an employee of the Eilers Music Company, had been photographing the parade with a small Brownie folding camera from the roof of 925 Market Street. Four of his pictures were taken from the rear of the roof and, when he developed them, he noticed that the Mooneys were included in a group of persons standing within camera range. A large jeweler’s clock on the opposite sidewalk also showed up in the photographs. When the defense attorneys asked Hamilton to let them see prints of the films, he refused and immediately turned them over to Fickert. At the Billings trial, blurred prints, which failed to show the clock in the background, were furnished to the defense and introduced in evidence.

Now, Maxwell McNutt, who had taken over for Cockran, was determined to force the prosecution to come across with Hamilton’s negatives. He asked Griffin to order the Police Department to “produce the films referred to by this witness.” Cunha gave him a bit of a fight.

MR. CUNHA: I believe they are in the possession of Mr. Blum, the police photographer.

MR. McNUTT: We will ask that they be brought here before the witness leaves the stand.

THE COURT: Yes, send for them.

MR. CUNHA: It is Mr. McNutt’s business not ours, to send for them.

MR. McNUTT: I have no control over Mr. Blum. Go and get Mr. Blum and tell him to deliver the films which were delivered to him a week after the day of the Preparedness Day Parade.

Cunha, after reminding McNutt that he “had copies of those at the last trial,” gave in meekly. When the films were brought into the courtroom, Hamilton identified them as those he had taken on July 22nd.

Theodore Kytka, a photography expert for the United States Government, had made enlargements of Hamilton’s pictures. They clearly showed that the Mooneys had been on the Eilers Building roof at 2:01 p.m. and 2:04 p.m. on the day of the parade. Since the Eilers Building was more than a mile away from the corner of Market and Steuart, it was difficult to see how Mooney could have been in two places at approximately the same time unless one was prepared to accept a theory later advanced by Mrs. Edeau that a person’s “astral” and “physical” bodies can be separated at will.

John C. Lawlor, another Eilers Music Company employee, had gone to the roof with his wife “about a quarter to two, ten minutes to two, something like that.” He had seen Rena Mooney there “about ten minutes to two.” However, in the Billings trial, he had testified that “I first went up about ten minutes to two and that I remained there about ten minutes and started to go down the street and had an engagement and met Mrs. Mooney coming on the roof alone.” His wife, Gertrude, remembered that Mooney had also been on the roof “but I can’t say what time it was.” Mr. and Mrs. Mario Cresafulli had seen the couple there at 1:50 p.m. as had Mrs. Julia de Lorenzo.

Before the Mooneys had gone to the roof, they had been in their fifth-floor studio-apartment. Benjamin Kirsch, who had his tailor shop in Room 503 of the Eilers Building, had seen Rena Mooney “going down to the mezzanine floor with a sheet of music in her hand” between one and 1:30 p.m. Harry Rosenblatt, Mrs. Kirsch’s brother, arrived at the shop “between one and half past” and met the Mooneys there as did Sam Green, a family friend. Nicholas Hugh Treanor went to Mrs. Mooney’s studio on the morning of July 22nd and did not leave until 12:30. Rebecca Cutler, a violin pupil, said that she had come for a lesson that morning but that she couldn’t remember “what time of day it was.”

Rena Mooney testified that she had seen three of her pupils on the morning of the parade. Camille Leger had arrived first, only to announce that “she would rather not take her lesson that week because she had been on vacation and had not practiced.” Mrs. Mooney told the girl not to give it a second thought since the cancellation “was just as well for me as I was going on a vacation myself.” She had decided to purchase some underwear at Schwartz & Goodman’s on Fifth Street and the girl accompanied her to the elevator. While she was out, Rena stopped in the Clarion and bought a shirt and a tie for her husband.

After Rebecca Cutler’s violin lesson, the Mooneys decided to go up to the roof to see the parade because a huge flag on the front of the building had blocked all their windows. Martha Timberlake, Mrs. Mooney’s cousin, and Belle Hammersburg, her sister, went to the roof with the couple and stayed there until the parade ended. Hilbert Roberts, a fourteen-year-old pupil of Mrs. Mooney’s, “saw her on Parade Day on top of the Eilers Building while the parade was going on,” but didn’t know what time it had been.

When Mooney took the stand, he confirmed his wife’s account of their activities on July 22nd. He had left the apartment for breakfast at Hoffman’s Restaurant at 9:30 that morning and returned an hour later. He recalled that Rebecca Cutler had left his wife’s studio “in the neighborhood of 1 or 1:15.” A few minutes later, Mrs. Hammersburg and Mrs. Timberlake arrived and, at approximately 1:30, the quartet went up to the roof. “We did not leave the roof,” he testified, “until the last section had passed.” Like his wife, he denied being either at Steuart and Market Streets or 721 Market Street at any time during the day.

Israel Weinberg, a Russian-born ex-journeyman carpenter who had turned to hacking early in 1915, had met Mrs. Mooney when a Mrs. Strager (his wife remembered the name as Trager) recommended her as a music teacher for his son. Until he was arrested, he had never met Nolan or Billings. At 2:05 on July 22nd, he had been paying a bill at the gas company office on Grant Avenue. Then, after buying some chops and a loaf of bread, he went home and had his lunch. At 4:45, he had driven to the Ferry and “kept working until ten o’clock that night.” When it came to denials, he was just as definite as the Mooneys. “I did not drive a jitney on parade day up to 721 Market Street or to Steuart and Market or carry as passengers Mooney, Billings, Mrs. Mooney and a man with a stubby mustache.”

Weinberg insisted that he had picked up two men at 29th and Valencia who ordered him to take them to the 12:20 Ferry. Although he told them that “I guess I can make it,” he had arrived five minutes too late. Then, the cabbie picked up two more passengers on E Street who were destined for Fillmore and Sutter. When the cab reached Golden Gate Avenue and Jones Street, Weinberg said, “I saw a jitney driver I know, Simon Statler.” Later a Simon L. Sutter testified that “I saw Israel Weinberg driving around Golden Gate Avenue and Jones St. between 12:30 and around 1 p.m. or probably a little after. I don’t know the exact time. It was in the early afternoon.” Esther Caplan, who ran a misfit clothing store at 1269 Golden Gate Avenue, had seen Weinberg “between half past one and two on Saturday” when he had stopped in for a few minutes to read her a letter from his wife, who had gone east for the summer. David J. Smith, an old friend, had met him on Golden Gate between Webster and Fillmore “about a quarter to two.” Weinberg was on the sidewalk, walking toward his cab, when Smith, who was accompanied by Leon Carasso, a life insurance agent, had hailed him.

On February 9, 1917, the jury returned a verdict, finding Mooney guilty of murder in the first degree. Cockran immediately moved for a new trial on the ground that the verdict was against the weight of the evidence, but Judge Griffin decided to let things stand as they were. On February 24th, he sentenced the defendant to be “hanged by the neck until you be dead.” If this wasn’t the end of the road for the thirty-year-old ex-moulder, it was as reasonable and uncomfortable a facsimile as a union man could ask for.

But there was more to come. On April 11th, the San Francisco Bulletin published photostatic reproductions of a series of letters between Oxman and one F. E. Rigall, the proprietor of a pool hall in Grayville, Illinois. In the early morning hours of December 14, 1916, the Oregon cattle dealer had written an urgent—and misspelled—note on the stationery of the Hotel Terminal to his old friend, urging him to “cum to San Frisco as a expurt witness in a very important case.” He promised him “mileage and all that a witness can draw probly 100 in the clear.” Oxman closed with the plaintive plea that “I need a witness.” Two days later, Rigall wired: “Will come. Wire transportation and expenses.”

Oxman answered him at once. “Your Telegram Received,” he wrote, “I will wire you Transportation in Plenty of time.” But there was one condition. “You will only hafto say you saw me on July 22 in San Frisco and that will be easey dun.” In the meantime, he advised his friend that “the silent Road is the one and say nothing to any Body the fewer People no it the Better.” On Christmas day, Oxman informed Rigall’s mother that he was “sending Ed transportation tomorrow.” Perhaps, he would be able to use her, too, as “a Extry witness” might come in very handy.

Rigall arrived in San Francisco on January 6, 1917, and registered at the Terminal Hotel as “L. O. Charles.” He was given Room 437. Four days later, the register was changed to show that 487 was now occupied by an “F. E. Rigall, Evansville.” On January 17th, at the request of “Mr. C. M. Fickert,” a card was issued to an “F. E. Rigall” by the Olympic Club of San Francisco, extending to him “the privileges of the club for a period of two weeks.” Apparently, nothing was too good for “a Extry witness.”

But Rigall was destined never to see action in the Mooney trial for the simple reason that he had never been in San Francisco before in his life. On February 12, 1917, three days after Mooney’s conviction, he sent Cunha a congratulatory wire but warned him that “my evidence will get party new trial.” The Assistant District Attorney replied by return telegram that he was “astonished at your suggestion that you have testimony to help defendant,” and exhorted Rigall to “wire me collect all details at once.” There was no answer from Grayville.

On February 13th, Charlotte La Posee gave the defense attorneys an affidavit in which she swore that she had seen Oxman watching the parade near the entrance to the Phelan Building, more than a mile from Steuart and Market, at the exact time when, according to his testimony, he had observed Mooney and Billings planting the lethal suitcase. According to the Examiner, Fickert was “undisturbed” at this revelation because “John Regal, an Oregon business man, was a companion of Oxman the day of the Preparedness Parade and could corroborate the testimony of the cattle man.” The reason “Regal” hadn’t been called at the trial was “because of domestic difficulties.”

Rigall got around to putting his story in writing on April 22nd when he signed an affidavit in which he claimed that Oxman, with Fickert’s help, had tried to get him to say that he had seen Mooney at the corner of Market and Steuart on Parade Day. For this, he was to receive $250.00 from Oxman and a liberal share of the reward money. But his conscience had gotten the better of him and he had left San Francisco on January 26, 1917, without testifying. When he returned home to Grayville, he had told the story to Mayor Claude O. Ellis, who had persuaded him to return to California and prevent “the God damndest frame-up that you ever heard of.”

Six days earlier, Estelle Smith, the dental assistant who had testified that Billings and his famous suitcase had been on the roof of 721 Market Street on the day of the explosion, had admitted that Oxman had tried to bribe her to identify Weinberg as well. “Wouldn’t you testify,” he had asked her, “that you saw him for a check in four or five figures?” To her question, “Who sent you to me, Fickert?,” he had replied, “No, not Fickert, but men higher up than Fickert.” When she had told the District Attorney of this offer, she was informed that the cattleman was “a queer old duck.”

On April 30, 1917, Oxman was indicted for subornation of perjury. One month later, Rena Mooney was brought to trial and acquitted on July 25th. Fickert managed to keep her in jail on the other seven indictments until March 30, 1918 when she was released in five thousand dollars bail. On November 27th, Weinberg also was acquitted but it was not until March 22, 1918, that he was admitted to bail. Nolan, with Captain Matheson’s help, walked out of prison shortly after the Oxman exposures and was never tried.

In the Weinberg trial, eighteen police officers who had been stationed in the vicinity of Steuart and Market on July 22nd testified that they had seen no jitney in that area between 1:30 and 2:06 p.m. Inspector William H. Smith and Captain Walter J. Peterson of the Oakland Police Department both said that Mrs. Edeau had first told them that she and her daughter had seen two middle-aged men “carrying a black suitcase with white metal trimmings at Steuart and Market Streets.” When Mrs. Edeau was taken to City Prison to identify Mooney and Billings, she had told Inspector Smith, “I have never seen either of these men in my life before.” In any event, it had been her “physical” body at Steuart and Market, she had informed the startled officer, because her “astral” body was standing on the sidewalk in front of the Kamm Building watching Billings leaning over the roof of 721 Market Street. Two years later, her physical hand was to write for the rewards her astral eyes had earned.

Although Oxman was acquitted of subornation of perjury, Woodrow Wilson appointed a Mediation Commission to make an investigation into the Mooney case. On January 16, 1918, the Commission informed the President that, while it was not in a position to determine the defendant’s guilt or innocence, it did feel that “a solid basis exists for the feeling that an injustice was done ... and that an irreparable injustice would be committed to allow such conviction to proceed to execution.” On the strength of this report, Wilson persuaded Governor William D. Stephens to commute Mooney’s sentence to life imprisonment.

Because California law did not permit the granting of a new trial on the basis of evidence that was not in the original record, it became impossible, notwithstanding Judge Griffin’s earnest attempts, to give Mooney another hearing. Both the trial judge and the Supreme Court of California were powerless to act despite that fact that, in May of 1921, Mr. and Mrs. Earl Hatcher of Woodland, California, told a Grand Jury investigating Oxman’s possible perjury at the Mooney trial that the cattleman did not board the San Francisco train until 2:15 p.m., nine minutes after the bomb had exploded some ninety miles to the southwest. When Griffin reminded Governor Stephens that Mooney had been condemned upon evidence “concerning the truth of which, there had arisen a very grave doubt,” he had made the understatement of the century.

But there were still more surprises in the offing. Alice Kidwell, Estelle Smith’s mother, who had testified before the Grand Jury that she saw Mooney waiting for Billings outside of 721 Market Street, had written a letter on February 2, 1917, to her husband, who was then serving a term for forgery in Folsom Penitentiary. In it, she told him that “the authorities are going to let you out and maybe in a few days. Captain Matheson and the District Attorney went to see two of the Board this A.M. and will see the others at Sac. I know I am needed for authorities and they are helping me by getting you out.”

Fickert’s largesse was impressive. Before Estelle Smith had retired to the safety of a dentist’s office, she had been a San Francisco prostitute with a long arrest record. In addition, she and James L. Murphy, an uncle, had been indicted in 1913 for the murder of a boarder at the rooming house in which they were then living. Estelle was never tried but her uncle was convicted and sentenced to twelve years in the penitentiary. Coincidentally, Uncle Jim was released on April 10, 1917, forty-five days after Mooney’s sentence. In 1929, Miss Smith gave Fremont Older, then the editor of the San Francisco Call, a sworn statement in which she admitted she and the Edeaus had been carefully coached by Fickert’s men.

On February 7, 1921, John McDonald, the only key witness besides the Edeaus to testify in all four trials, executed a startling affidavit in New York City. In it, he stated that, while he had seen a man “lay down a suitcase” on Steuart Street, he had never seen that man again. But the District Attorney had wanted more out of him than this. “I think I talked to Fickert every day for weeks about the case. He kept saying to me every time I came, always using hard names against Mooney and Billings, ‘Those are the men you saw there that day.’ Up to this time I had never told Fickert that I could not have identified these men if they had not been pointed out to me, and I could not do so.” Just before the trial, Fickert told him that “there is a reward of $17,500 for the conviction of these people, and when I put them away, I will see that you get the biggest slice of the reward.” For a man who hadn’t worked in months, the temptation was just too much.

For some weeks prior to July 22nd, more than two hundred hand-printed post cards had been mailed to various sponsors of the parade. These cards warned their recipients that, because of their “extreme activity in promoting and glorifying militarism ... the extermination of you and your evil class, is going to be the sole and patriotic duty of the Employees Liberty League.” Although many detectives thought that there was a connection between the cards and the explosion, Fickert had dropped any further investigation along this line when handwriting experts advised him that neither Mooney nor Billings could have written them. But in 1930, Alonzo A. Smith swore that his brother, Louis, had told him before he died that he had been hired to throw a time bomb from the top of Market Street building during the Preparedness Day Parade. Dora E. Monroe said that Louis had once stated that “it was me that threw the bomb ... which Tom Mooney was convicted for.” It was to be dropped into a certain car in the parade and Smith had received a two-thousand-dollar advance with eight thousand more promised for results. But he had lost his nerve and thrown the bomb too early.

The rest of the story consisted of one application after another by Mooney for a pardon. Although his petitions were supported, at one time or another, by Captain Matheson, Detective Hand, Matthew Brady, Fickert’s successor, Judge Griffin, and nine of the ten living Mooney jurors, four California governors in a row—Richardson, Young, Merriam and Rolph—refused to free him. Even a daring attempt by the defendant in 1933 “to risk my neck” by insisting on being tried on one of the other murder indictments, came a cropper when the district attorney informed Judge Louis H. Ward that “the evidence in this case is insufficient ... the State asks for an instructed verdict and rests.”

It was not until January of 1939 that Governor Culbert L. Olson ended more than twenty-three years of imprisonment by granting Mooney an unconditional pardon. But for San Quentin Convict Number 31921, it all came much too late. The fifty-six-year-old man, who returned to San Francisco to find his countrymen on the brink of another war, had only three more years to live. The spirit that, as late as 1932, had been “aflame with furious indignation,” had burned itself out in a dungeon.

4

Anarchists With Bloody Hands

The Commonwealth of Massachusetts
versus

Bartolomeo Vanzetti and Nicola Sacco

Thursday, April 15, 1920, dawned bright and windy in South Braintree, Massachusetts, a manufacturing town some twenty miles south of Boston. Shortly after nine that morning, Shelley A. Neal, the local American Express agent, waited at the New Haven railroad station for the delivery of a $15,776.51 payroll. The money was consigned to Slater & Morrill, Inc., one of South Braintree’s two shoe companies.

The cash arrived on the Boston train at about 9:10, and Neal took it to his office on the first floor of Hampton House, a four-story frame building on Railroad Avenue, a few feet from its intersection with Pearl Street, South Braintree’s main thoroughfare. Slater & Morrill occupied the top three floors of Hampton House, with its business office on the second floor. After he had sorted and counted the money, Neal left his office and walked down Railroad Avenue to the shoe company’s main entrance in the center of the rectangular building. As he locked his door, he saw that the hands on his office clock stood at exactly 9:30. He was a rapid walker and had almost arrived at the double-doored entrance before he noticed, with some apprehension, that a large, newly varnished black automobile with its motor running was parked alongside the curb.

When Neal passed the car, he saw that its driver, a light-haired man with an emaciated, jaundiced face, was watching him intently. As he entered Hampton House, he observed that the man got into the car and drove slowly up Railroad Avenue. Neal followed the vehicle with his eyes and thought that he could glimpse another man sitting in its rear seat. Although he later admitted that he had considered the driver’s conduct extremely suspicious, the agent did not report the incident to anyone at Slater & Morrill.

The company’s paymistress receipted for the money and began at once to fill the pay envelopes. When she had finished, the grey-colored packets were stacked in two large tin flats. Thursday was payday at the factory, and the boxes were scheduled to be picked up at three o’clock that afternoon by Frederick A. Parmenter, Slater & Morrill’s acting paymaster.

The car that had aroused Neal’s suspicions was apparently seen in other parts of South Braintree that morning. At 10:30, Harry E. Dolbeare, a piano repairman, was walking on Hancock Street when he noticed what he later described as “a carload of foreigners” in a large black sedan turning into Hancock Street from Holbrook Avenue. In the back of the car, he saw a man with “a very heavy mustache ... leaning forward as though he was talking to either the driver or the other person in front of the car.” In all, there were four men in the car who appeared to him to be “a tough looking bunch.”

A little after 11:30, Mrs. Lola R. Andrews, an unemployed practical nurse, arrived in South Braintree with Mrs. Julia Campbell, an elderly friend. Both women were seeking work and applied first at Slater & Morrill’s Factory No. 2, a four-story frame building which was located about an eighth of a mile east of Hampton House on Pearl Street. As the women entered the factory, Mrs. Andrews noticed a large black car parked in front of it. She saw a swarthy man, dressed in dark clothing, bending over the hood. In the back seat, she observed a thin, emaciated looking man with what she later depicted as “a light complexion.”

There were no jobs open at Slater & Morrill and, when Mrs. Andrews left the building some fifteen minutes later, she saw that the swarthy man was now lying on the ground with his head and shoulders under the front part of the vehicle. The sickly looking man, who had been sitting in the rear seat, was outside, leaning against the back of the car. Mrs. Andrews asked the man under the car if he could direct her to the Rice & Hutchins factory. At the sound of her voice, he got to his feet and pointed to the five-story brick building which was some 120 feet west of Factory No. 2.

Earlier that day, John M. Faulkner, a Cohasset pattern maker who was bound for the post hospital at the Watertown Arsenal to be treated for an infected hand, had boarded the 9:20 train to Boston. He was sitting in the second seat on the left hand side of the smoker. As the train came into East Weymouth, the passenger sitting on his right asked him if the stop was East Braintree. As Faulkner remembered it, “he said, ‘the man behind me wants to know if it is East Braintree.’” The pattern maker had then looked at the other man who was sitting in a single seat near the lavatory. “He looked like a foreigner, with a black mustache, and cheek bones.” The “foreigner” wore a felt hat and was dressed in “kind of old clothes.” Faulkner had watched him leave the train, carrying a leather bag, when the local pulled into East Braintree shortly after ten o’clock.

At 11:30, William S. Tracy, a real estate broker, had driven by South Braintree Square. He “saw two men standing with their back to the window of that [drug]store, the window nearest the corner of Pearl Street.” Some ten minutes later, he returned to the Square and noticed that the two strangers were still there. “The man nearest the drugstore was the shorter of the two and the other fellow ... the shorter man of the two, he stood erect, and their general appearance was that they were dressed respectably and looked as if they might have been waiting for a car.” What had attracted his attention to the men, whom he thought were Italians, was the fact that “no one was allowed to lean up against that building.”

Just after noon, one William J. Heron, a railroad detective, saw two strange men loitering near the station restroom. “One of them was about 5 feet 6 inches, weighed about 145 pounds, Italian. The other fellow was about 5 feet 11; I should say, weighed about 160. They were smoking cigarettes, one of them.” He had observed them closely because he considered it unusual for them to be there with no train due for some time, and “they acted kind of funny to me, nervous....” Heron had come to South Braintree to look for a lost boy whom he had found in the station and taken into the ticket office. When he emerged, a few minutes later, “the two men were gone.”

Shortly before three o’clock, Parmenter and Alessandro Berardelli, a guard, arrived at the paymistress’ office on the second floor of Hampton House. They signed for the payroll and each man took one of the tin boxes containing the pay envelopes. Mark Carrigan, a shoe cutter, who worked on the third floor of Hampton House, watched the two men leave the building. They crossed Railroad Avenue, passed to the right of the New Haven station, talked briefly with James E. Bostock, a Slater & Morrill millwright, and then started up Pearl Street toward Factory No. 2.

A few minutes earlier, Bostock had noticed two foreign looking strangers—he later said he thought they were Italian fruit peddlers—leaning against a fence near a water tank on the north side of Pearl Street, but he did not mention them to Parmenter or Berardelli. His conversation with the paymaster and the guard was brief—he remembered only that Parmenter had ordered him to “go into the other factory and fix the pulley on the motor” and that he had answered that he couldn’t do the job that afternoon because he was “going to get this quarter past three car to Brockton.”

Albert Frantello, a former Slater & Morrill employee, also saw the two strangers who had attracted Bostock’s attention, and remembered that “the one that was nearest me had on a black cap, dark suit, dirty front on him, looked like a jersey, dark complexion and needed a shave, and he was a stocky build. The other fellow, he was light complexioned. He had on a cap; dark suit. He was about as tall as the other fellow, about the same height, only he was slimmer, kind of pale looking, and his hair was light. It was not as dark as the other fellow’s. I would say he was slimmer than the other fellow. He was not stocky build.” The first man had been wearing “a dark cap ... pulled down just like any ordinary fellow would have his cap on, just resting on his forehead.” The two men had been having an argument and Frantello overheard the stocky one berate his companion “in the American language.”

After his brief conversation with Parmenter and Berardelli, Bostock hurried on toward Hampton House. He had only gone a few steps when he was startled to hear a fusillade of shots behind him. He turned and saw the guard lying on the ground and a man standing over him with a smoking pistol in his hand. As he later testified, “... he stood over him. He shot, I should say, he shot at Berardelli probably four or five times. He stood guard over him.” Parmenter had dropped his box when he was hit by the first bullet and managed to run across Pearl Street, closely pursued by a second man who shot him in the back just as the pair reached an excavation for a new restaurant on the north side of the street.

According to Bostock, both bandits “was dressed in sort of dark clothes, with ... dark caps ... they appeared to be foreigners.” As for their physical appearance, “they was fellows of medium build ... smooth face, dark complected.” When one of the gunmen fired two shots at him, the millwright jumped behind the wooden fence where he had first noticed them just before meeting Parmenter and Berardelli. He had started to run back toward the railroad crossing when a black seven-passenger Buick drove slowly down the street, picked up the two gunmen and their loot, and then proceeded down Pearl Street toward the railroad crossing. The millwright ducked behind the water tank as the car shot by him. It was so close to him that “if I laid out at arm’s length I could have touched the spokes of the car as it passed me.” He saw four men inside, one of whom was firing at the excited crowd which was rapidly collecting around the bodies of the paymaster and the guard.

When the shooting started, Lewis L. Wade, a sole leather cutter who doubled in brass as an auto mechanic for Slater & Morrill, was filling Mr. Slater’s car with gasoline from a pump located in a little concrete shed in front of Factory No. 2. He saw Parmenter run across the street and disappear from view behind “a dirt truck.” A short, bareheaded man who “needed a shave” was standing over Berardelli, pumping bullets into the fallen guard. “And the next thing that I saw was a car come up Pearl Street, and stop—well, it didn’t exactly stop. I wouldn’t say for sure whether it stopped or not. And there was a man at the wheel ... he was a pale-faced man, a man, I should judge ... about probably 30 or 35. He looked to me like a man that had sickness or he was sick.”

As soon as the car had passed him, Wade ran into the factory office and called in the first alarm to the Braintree police. When he returned, he “went to where Berardelli lay and he was not dead then. He was breathing, and when he breathed the blood would come up and down on his face.” Across the street, the mechanic noticed that James E. McGlone, a teamster who was transporting stone from the restaurant excavation, was struggling to keep his frightened team from stampeding. McGlone later described the killers as “dark-skinned Italians” while Hans Behrsin, Mr. Slater’s chauffeur, who had been crouched behind the gasoline shed during the shooting, thought they had been “light complexioned boys.”

Mrs. Barbara Liscomb, who had been looking out on Pearl Street from a third-floor window squarely in the middle of the Rice & Hutchins building, said she saw “two men lying on the ground and one man, a short dark man, standing on the ground facing me with his head up, holding a revolver in his hands.” She was only at the window “about two seconds,” having collapsed when the man waved the gun at her, and she did not see the automobile traveling down Pearl Street. As she later put it, “I sort of fainted away.”

Mary E. Splaine, a Slater & Morrill bookkeeper, was working in her corner office on the second floor of Hampton House that afternoon. Just after three o’clock, she had watched Parmenter and Berardelli walk up Pearl Street toward Factory No. 2, and had returned to her desk when they passed out of her line of vision. When she heard the shots, which she first thought were automobile backfires, she returned to the windows which opened on Pearl Street. She saw a black automobile driving slowly in the direction of the railroad tracks. It crossed the tracks and, as it passed under her window, she saw one of its passengers leaning out of the car, a man she later described as “an active looking man.”

Miss Splaine did not see the actual shooting but twenty-two-year-old Lewis Pelser, a Rice & Hutchins employee, claimed that he did. He was working on the main floor of the factory building when he heard the first shots. He had rushed to the window, looked out and, as he put it, “I seen this fellow shoot this fellow. It was the last shot. He put four bullets into him.” The killer “had wavy hair pushed back, very strong hair, wiry hair, very dark.” Pelser also jotted down the license number of the car, noticing as he did so that the rear window of the vehicle had been removed and that a rifle or shotgun barrel protruded from this opening. Edgar C. Langlois, his foreman, had watched the shooting from the floor above Pelser. According to him, the murderers had been “stout ... thick-chested young men.”

Winifred H. Pierce, a Slater & Morrill shoemaker, had run to a window on the Pearl Street side of Hampton House as soon as the gunplay started. He saw two men in a black car, one of whom was climbing into the front seat from the rear. Lawrence D. Ferguson, a co-worker who was standing next to Pierce at the window, corroborated his story. But Daniel J. O’Neil, a South Braintree school boy, had a different version. According to him, the man in the car’s back seat had “walked along [its] running board and before the car had got over the other side of the crossing that man was sitting in the front seat.” The man he had seen “was a man [with] dark hair, cleanly shaven, broad shoulders light complexion.... He wore a blue suit and no hat ... of
and his hair was thick but light and combed back straight over his head.”

As Parmenter and Berardelli walked up Pearl Street toward Factory No. 2, they had been followed by Roy E. Gould, a razor sharpening paste peddler, who hoped to sell his product to the Slater & Morrill employees after they were paid. He was running in order to get to the factory before the paymaster did, so that he could set up his display stand. Before he could catch up with the two men, the hold-up occurred. As the Buick passed within ten feet of him on its way toward the railroad crossing, one of the gunmen fired at him, the bullet piercing the pocket of his overcoat without injuring him. Gould gave his name to a Braintree policeman and indicated that he would be available for questioning if needed. His observations apparently failed to titillate the police and he was never questioned by them.

Frank J. Burke, an itinerant glassblower who had arrived in South Braintree at 2:30 that afternoon to give a demonstration of his art at a local school, claimed that the hold-up car had passed within ten feet of him after the shooting. When he first saw it, the sedan was moving slowly down Pearl Street toward the railroad crossing. He watched two men jump on the running board and climb into the back seat. As the car approached the crossing, one of these men crawled into the front seat next to the driver. Seconds later, Burke heard a gunshot in the car, and the man who had climbed over into the front seat pointed a revolver at him and shouted, “Get out of the way, you son of a bitch!” He saw “a dark man with a short cropped mustache” in the rear of the car.

Mark Carrigan watched the car drive over the Pearl Street crossing but it was going too fast for him to recognize anyone in it. One of its occupants, “had black hair and looked, possibly, like an Italian.” Louis De Beradinis, who owned a shoe repair shop at the corner of Railroad Avenue and Pearl Street, noticed a man with a gun standing on the vehicle’s running board. “This man pointed a revolver to my face” and had “a long face, and awful white, and light hair combed in the back. It was a thin fellow I saw.”

Carlos E. Goodridge, a Victrola salesman, who was whiling away a slow day in Magazu’s poolroom which was a block west of Hampton House on the north side of Pearl Street, rushed out when he heard the excitement. He saw the black sedan cross the New Haven tracks and watched, with idle curiosity, as it approached Magazu’s. Suddenly, he noticed that one of its occupants—“a dark complexioned fellow, with dark hair, a peculiar face that came down pointed”—was pointing a gun at him, and he jumped back into the poolroom and hid under one of the tables.

Michael Levangie, the gate tender at the Pearl Street crossing, had lowered his gates for an approaching train when the Buick came toward him. He was startled to see that one of the passengers in the car was pointing a revolver at his head. He was ordered by this man to raise his gates. He remembered that the person who shouted at him spoke with a decided foreign accent although it was Burke’s recollection that the man who had ordered him out of the way had used good English. As Levangie later testified, “I looked back at the train to see if I had a chance to let them go. I saw that there was a chance to let them go and I let them, and I put my gates back where they belonged.” He was able to describe only one of the vehicle’s occupants, the driver, who, he said, was “a dark complected man with cheek bones sticking out, black hair, heavy brown mustache, slouch hat and army coat.”

The Buick continued down Pearl Street and turned left on Hancock Street. As it crossed the New Haven tracks, it was seen by eight railroad workers, most of whom described the driver as “kind of light-complexioned” and the man sitting alongside of him on the front seat as “big and dark.” Shelley Neal saw it make the turn when he ran out of his office upon hearing the shots. As it passed the drug store on the corner of Pearl and Hancock, its passengers scattered rubber-headed tacks along the road. It took more than a week before South Braintree could count a day without at least one blowout on Hancock Street. Daniel Buckley, a railroad employee, was the last person in South Braintree to see the car as it headed out of town on South Street.

Several people remembered spotting it later that afternoon as it headed south through Randolph, Canton, Stoughton, Brockton and West Bridgewater. At four, sixteen-year-old Julie Kelliher, a student at Brockton’s Hancock School, saw a black sedan hurtling through that town at such a high rate of speed that she reported it to the police. It was next seen by Austin Reed, the gate tender at the Matfield Crossing just outside of West Bridgewater, at 4:15. Reed waved his warning sign at the oncoming automobile because a train was expected momentarily. One of the men in the car pointed his finger at the startled gate tender and snarled, “What to hell you hold us up for?” The man he saw was “a dark complected man, kind of hollow cheeks, with high cheek bones, had a stubby mustache. His hair was black.”

Meanwhile, back in South Braintree, the horror-struck bystanders, who had been scattered momentarily by some shots from the rear window of the disappearing Buick, regathered around the two wounded men. Berardelli was lying in the street with his head next to the curbing. He was almost dead. According to Jim Bostock, the first man to reach him, “he laid in a kind of crouched position and I helped lay him down and every time he breathed, blood flowed and was coming out of his mouth.” The two men were taken to the home of Horace A. Colbert, a railroad tower man who lived just east of the restaurant excavation, where Berardelli died. Parmenter lived until five o’clock the next morning.

Fred L. Loring, a Slater & Morrill shoe worker, noticed a cap with earlaps near Berardelli’s body, which he picked up and turned over to his superintendent. The next day, the latter gave the cap to Jeremiah F. Gallivan, Braintree’s police chief, who kept it under the seat of his car for ten days before delivering it to Brockton’s Captain John Scott. The only other evidence found at the scene were some empty cartridges which littered Pearl Street. Berardelli’s Harrington & Richardson revolver, which he had been carrying that day, was missing.

Two days later, the Buick was discovered by two horsemen in Bridgewater’s Manley Woods, some five miles west of the Matfield Crossing. Leading away from the abandoned vehicle were the tiretracks of a smaller car. Although the black sedan’s license tags had been removed, plates with the number which Louis Pelser had jotted down two days before had been pilfered from another car early in 1920. The Buick itself had been reported as stolen by its owner, a Dr. Francis J. Murphy, on November 23, 1919. The isinglass rear window was pushed out and there was a bullet hole in the car’s right rear interior. It was later identified by almost every eyewitness as similar to the one they had seen on the day of the robbery.

Bridgewater’s Police Chief Michael E. Stewart was convinced that the crime had been committed by a resident Italian who owned a car. Mike Boda, who boarded with a radical named Coacci in a shack near the Manley Woods, was interviewed by Stewart three days after the South Braintree murders. He told the police officer that his car, a small Overland, was stored in Simon Johnson’s garage in West Bridgewater. Stewart called on Johnson and told him to notify the police if anyone called for Boda’s car.

On the evening of May 5th, Nicola Sacco, a Stoughton shoe worker, Bartolomeo Vanzetti, a Plymouth fish peddler, Boda, and a mutual friend named Ricardo Orciani, started out from the former’s house for West Bridgewater to pick up the Overland. Sacco and Vanzetti took the trolley while the other two men rode on Orciani’s motorcycle. When Boda and Orciani arrived at the garage, they found it locked. They then walked over to Johnson’s house where they were soon joined by Sacco and Vanzetti. Boda rang the bell and, when the garage owner’s wife opened the door, told her that he had come for the Overland. While the four men waited, Mrs. Johnson went over to a neighbor’s house and telephoned to Chief Stewart. Meanwhile her husband had convinced Boda that, since the Overland did not have 1920 plates, it would be better to leave it in the garage. Boda apparently took his advice and drove off on the motorcycle with Orciani.

Sacco and Vanzetti left the Johnson house and boarded the North Elm Street trolley for Brockton. When the car was passing through the Campello section of Brockton, it was boarded by a policeman who immediately arrested the two men. The officer found a .38-caliber Harrington & Richardson revolver (which was not Berardelli’s) and some shotgun shells in Vanzetti’s coat pocket. Sacco denied that he was carrying a gun and “a slight going over” did not reveal any weapon on his person. Later that evening, at the Brockton police station, “an automatic .32 Colt revolver” was found in his belt as well as thirty-two cartridges of various makes.

Four weeks later, Vanzetti was indicted for an attempted holdup that had taken place at Bridgewater on the morning of December 24, 1919, in which several “foreigners” had tried to hijack a truck containing the payroll of the White Shoe Company. According to eyewitnesses, two men had parked their automobile so that it blocked off Broad Street, the road leading to the shoe company. Guards in the payroll truck had fired at the holdup men who had retreated to their car and driven away. One of the thwarted bandits, who was armed with a shotgun, had discharged his weapon harmlessly at the guards before turning tail.

The trial of this indictment began at Plymouth on June 22, 1920, before Judge Webster Thayer and a jury of twelve men, one of whom was the foreman at the Plymouth Cordage Company from which Vanzetti had been discharged in 1916 for participating in a strike. The charges against the fish peddler were assault with intent to rob and assault with intent to murder. Sacco was not indicted because the records of the 3-K Shoe Factory in Stoughton indicated that he had been at work on the day of the crime.

Frederick G. Katzmann, the District Attorney of Suffolk and Plymouth Counties, took the position that the 1920 Buick which had been found in the Manley Woods on April 17th had also been used in the Bridgewater assault. He had three witnesses—the two guards who had been in the payroll truck and a shoe company employee—who identified Vanzetti as the man who had fired the shotgun. A Mrs. Georgina F. Brooks, who had been walking near the Bridgewater railroad station, said that she had seen Vanzetti driving an automobile in the vicinity just after the shooting. Maynard Freeman Shaw, a newsboy, swore that he had seen the defendant that morning running up Broad Street with a gun in his hand. He knew he “was a foreigner, I could tell by the way he ran.” Most of the witnesses described the bandits’ automobile as a “dark touring car.”

The prosecution rested on June 28th and Vanzetti’s attorneys, J. P. Vahey and J. M. Graham, put sixteen Italians on the stand to prove that the defendant had an alibi for the day of the crime. His landlady said that she had seen Vanzetti preparing his fish on the evening of December 23rd and that she had awakened him early the next morning. Other Plymouth residents swore that they had purchased eels from him during the day. John DiCarli bought some shortly after seven a.m. and Mrs. Terese Malaquci an hour later. Between nine and ten, Beltrando Brini, a thirteen-year-old boy who worked for Vanzetti, delivered some fish to Mrs. Adeladi Bonjionanni and to her neighbor, Mrs. Margaretta Fiochi. All told, some seven people testified that Vanzetti or young Brini had filled orders for them on the morning of the twenty-fourth. Upon the recommendation of his lawyers, who were afraid that his radical opinions and activities would be brought out, Vanzetti did not take the stand.

The jury retired at 10:50 on the morning of July 1st and returned a verdict of guilty on both assault charges a little more than five hours later. In the middle of August, Judge Thayer sentenced the defendant to twelve to fifteen years in prison. As the verdicts were announced, Vanzetti turned to his many friends in the courtroom and said, “Corragio.” Although a notice of appeal was duly filed with the Supreme Judicial Court, it was never perfected because of the subsequent murder conviction.

On September 11th, both Sacco and Vanzetti were indicted for the South Braintree murders by “beating and shooting ... against the peace of said Commonwealth.” However, it was not until May 31, 1921 that their joint trial began in Dedham, a Boston suburb, before the ubiquitous Judge Thayer. It took more than four days and seven hundred Norfolk County veniremen before George A. Gerard, the last juror, was sworn in at 1:35 a.m. on June 9th. Thayer appointed Walter R. Ripley, a stock-keeper and former Quincy police chief, as foreman and it was at last time for Katzmann to put in his case against the two immigrant defendants.

After Vanzetti’s conviction on the assault charges, the Sacco-Vanzetti Defense Committee, headed by Aldino Felicani, the editor of La Notizia, an Italian-language newspaper, retained Frederick H. Moore and William J. Callahan, for Sacco, and two brothers, Jeremiah J. and Thomas F. McAnarney, for Vanzetti. Moore, a member of the California Bar, was named chief counsel for both men despite strenuous pre-trial efforts by Mrs. Sacco to have him withdraw in favor of William G. Thompson, a Boston attorney. The Commonwealth was again represented by Mr. Katzmann who was aided by Assistant District Attorney Harold P. Williams.

After the physicians who had conducted the autopsies on the two murdered men had described their wounds and identified the bullets taken from their bodies, Shelley Neal told the jury about the black sedan he had seen in South Braintree on the day of the crime. He was positive that it was the same car that had been found in the Manley Woods two days later. But, outside of remembering that there had been a slender man with light hair standing next to the Buick when he had seen it parked in front of Hampton House on the morning of the holdup, he was unable to describe any of the vehicle’s occupants.

Neal wasn’t the only prosecution witness who couldn’t identify the defendants. Hans Behrsin, Mr. Slater’s chauffeur, had observed two “light complexioned fellows” sitting on the fence near Rice & Hutchins just before the shooting. But he was unable to describe them with any certainty because “they were all covered up.” After the murders, he had seen the Buick heading for the Pearl Street crossing. When it passed him, “the back curtains were drawn and flopping around back and forth, and I think there were about five of them in there ... and as that passed me by there was some one on the back there beckoning with a gun or shotgun.” Because he hadn’t gotten a good look at any of the men in the car, he couldn’t say that Sacco or Vanzetti had been riding in it.

Jim Bostock had been taken to see the defendants shortly after their arrest and asked whether they were the men he had seen on Pearl Street that afternoon. Like Behrsin, he “could not tell whether or not they was, no, sir.” Lewis Wade could not “say for sure” if Sacco was the man who had shot Berardelli. Even though he had told Katzmann at the Brockton Police Station that the defendant was the man he had seen, he now thought he had been “a little mite mistaken.” The reason he was no longer sure of his identification was that just before the trial he had seen a man in a barber shop who resembled the murderer.

Foreman Langlois, who had watched two “young men” firing at the guard and the paymaster, remembered only that they had been “short and dark complexioned, curly or wavy hair, about five feet, eight or nine inches, about 140 or 145 pounds.” He was sure that he could not identify either man if he saw them again. Mark Carrigan had seen the car race over the crossing but had not been able to recognize anyone in it because it had been going so fast. Louis DeBeradinis, the proprietor of a shoe repair shop at the corner of Railroad Avenue and Pearl Street, had been frightened by a man with “a long face ... and light hair” who had leaned out of the car and pointed a gun at him. Although, he thought that dark-haired Sacco looked like the man with the gun, he insisted that the latter had been “a light-haired man.”

But Katzmann was not wanting for more definite eyewitnesses. He had five who claimed to have seen Vanzetti near South Braintree on April 15th. John Faulkner said he had observed him, bushy mustache and all, on the Boston train that morning. But he was unable to remember anything about the man sitting to his immediate right who had asked him, supposedly at Vanzetti’s request, whether the next station was East Braintree. He admitted that he had seen a picture of the defendant in a newspaper before he was taken to the jail to identify him. The conductor on the train later testified that he, too, had seen such a man get off at East Braintree on several occasions long after April 15th, but he was certain that he was not Vanzetti.

Harry Dolbeare, the piano tuner, who swore that he had noticed Vanzetti among a group of “foreigners” sitting in the back of a car before noon on the day of the shootings, couldn’t identify any of the other men. Although gate tender Levangie was sure that Vanzetti was the “dark complected man” who had frightened him with a pistol at the Pearl Street crossing, he couldn’t remember whether Mr. McAnarney had visited him at his shanty barely two weeks before the trial started. Alexander G. Victorson, the railroad’s freight clerk, later testified that Levangie had said, minutes after the shooting, that he didn’t think he could identify the men he had seen in the car as it sped over the tracks.

An hour later, the gate tender told Henry McCarthy, a locomotive fireman, that he had “ducked in the shanty” when he saw the guns pointed at him. “I asked him if he knew them,” McCarthy said, “He said no, he did not. I asked him if he would know them again if he saw them. He said ‘No,’ he said all he could see was the gun and he ducked.” Shortly afterward, Levangie informed Timothy J. Collins, a Boston Globe reporter, that he had not seen anyone in the car, while, at 4:30, he told Slater & Morrill’s Edward Carter that its driver had been “a light-haired man.”

Austin T. Reed, the gate tender at the Matfield Crossing in West Bridgewater, identified Vanzetti as the man sitting next to the driver of a “five-passenger car” which had roared toward his intersection at 4:15. The automobile had screeched to a stop when Reed lowered his gates because of an approaching train. When the train had passed, the car crossed the tracks and pulled up alongside Reed’s shanty. Vanzetti, he said, had shouted, “What to hell did you hold us up for?” in “English that was unmistakable and clear.” The vehicle then drove off to the east, circled around, and finally recrossed the tracks, disappearing in the direction of West Bridgewater. Like Faulkner, Reed had gone voluntarily to Brockton and “asked to see the two defendants that were there.” He had listened to Vanzetti speak to an officer at the police station in “the same gruff tone that he used in speaking to me.”

Austin C. Cole was the conductor of the street car on which Sacco and Vanzetti were arrested. He was sure that they were the same two men he had seen on his car on either April 14th or 15th. According to him, they had boarded the trolley at Sunset Avenue, some two miles from West Bridgewater’s Elm Square. He particularly remembered Vanzetti because he had first thought that the latter was a friend of his named Tony. When the defense showed him a side view photograph of one Joseph Scavitto, a man who bore a striking resemblance to Vanzetti, the witness was unable to say that it was a picture of the man who had boarded his car because he had never seen his profile.

The prosecution had seven witnesses who identified Sacco. Lola Andrews insisted that he was the man she had seen working under the car near Slater & Morrill Factory No. 2. When Katzmann asked her to look around the courtroom, she pointed to the steel cage in which both defendants were seated and said, “That man there.” Sacco sprang to his feet and shouted, “I am the man? Do you mean me? Take a good look!” Yes, she was sure that the man who had just yelled at her was the same dark man who had told her how to get to Rice & Hutchins.

Mrs. Andrews claimed that she had picked out Sacco in the Dedham Jail in February. After she had been taken through the prison, she had accidentally seen the defendant in one of the cells. She couldn’t remember whether he had been alone or not but she had watched him for at least fifteen minutes. No one had told her to look into that particular room. “The room I was in,” she said, “was—I don’t know just how to explain it, but it had kind of an opening back here, like there was a room underneath that you could look from the room I am in down into this room underneath.”

When Mr. Moore showed her some snapshots and asked her whether she had looked at them before at his request, she stated that “I don’t recognize any of those photographs at all.” The next day, Mrs. Andrews collapsed on the stand when Mr. McAnarney tried to pin her down as to just what pictures she had seen. Later in the trial, Mrs. Campbell, who had accompanied Mrs. Andrews to South Braintree on April 15th, swore that the man under the car had “never looked up at all” and that neither she nor her friend had spoken to him.

But Mrs. Campbell wasn’t the only witness to contradict the practical nurse. George W. Fay, a Quincy policeman, said that she had told him in February that she had not seen any man’s face that day. She had also told Alfred N. LaBreque, the secretary of the Quincy Chamber of Commerce, the same thing. Harry Kurlansky, a tailor whose shop was near Mrs. Andrew’s house, remembered a conversation he had had with her when she returned from the Dedham Jail. “The Government took me down and want me to recognize those men,” she had complained to him, “and I don’t know a thing about them. I have never seen them and I can’t recognize them.” A former landlady, who readily admitted that she didn’t like her and “wouldn’t have her in my house again,” said that she had a “bad name” in the community.

Real estate broker Tracy, who had told the police that he had seen Sacco standing near a Pearl Street drugstore at noon on the day of the murders, had identified him in jail ten months later. However, he was not prepared now to say that he was “positively” the man. “To the best of my opinion he is the man,” he testified. While he was “quite sure” that he was right, he was willing to “suppose the best of people could make a mistake.”

Q. Then you feel you could not be mistaken in the identity of this man?

A. I said I would not positively say he was the man; but I wouldn’t positively say so.

William J. Heron, the railroad detective, claimed that he had seen Sacco handcuffed to a policeman near the Quincy Courthouse some six weeks after having observed him in the South Braintree station. He was “pretty sure” that the defendant was the same “nervous Italian” he had watched in the waiting room. He readily admitted that he had refused to talk to defense investigators when they came to see him before trial. His reluctance, he said, had been due to the fact that he didn’t want to become involved. Besides he didn’t think that his information would be helpful to the defense. McAnarney’s face purpled with anger.

Q. You took it on yourself to determine the fact that your evidence would hurt these defendants, didn’t you? Did you?

A. Yes, sir.

The man whom Lewis Pelser had seen shoot Berardelli had been wearing a “dark green pair of pants and an army shirt, tucked up.” He would not swear that Sacco was the gunman but insisted that “he is the dead image of the man I seen.” He had written down the Buick’s license number but he had not seen anyone in the car. “I was too anxious to get away,” he said, “I was kind of scared myself.”

When Moore took over, he asked the witness whether he had been interviewed by a Mr. Reid on March 26th. Yes, he had, but he hadn’t told him everything he knew because “I didn’t know him well enough.” He admitted that he had told the investigator that he hadn’t seen the murderer because he had ducked under his workbench when the shooting started. But he insisted that he “didn’t exactly lie to Mr. Reid.” In fact, he hadn’t even told the District Attorney what he had seen that day until he took the stand. Moore’s voice was heavy with disbelief.

Q. You never talked to a living soul and told them what you intended to say on the witness stand today, and told them the truth, until you got on the witness stand.

A. Yes, sir.

Later, William Brenner, Peter McCullum and Dominic Constantino, who had been working with Pelser on the first floor of the Rice & Hutchins factory, testified for the defense that they had not seen the latter at the window when the shooting took place. According to the three men, everyone on the first floor had ducked under his bench when the gunshots had shattered the air. Constantino was sure that Pelser had not stood up until after the murders had occurred. He remembered that Pelser had told him that he had not been able to see any of the killers.

Mary Splaine, the Slater & Morrill bookkeeper, who had picked Sacco out in the Brockton police station as the man she had seen leaning out of the Buick just after it roared across the Pearl Street crossing, identified him again. “He was a man,” she claimed, “that I should say was slightly taller than I am ... he was an active-looking man. I noted particularly the left hand was a good-sized hand, a hand that denoted strength.... He had a gray, what I thought was a shirt ... and the face was what we could call clear-cut, clean-cut face. The forehead was high. The hair was brushed back and it was between, I should think, two inches and two and one-half inches in length and had dark eyebrows, but the complexion was a white, peculiar white that looked greenish.” Evidently, years of poring over account books hadn’t interfered with the witness’ eyesight because this detailed observation had been the result of a three-second glance “from a distance of from 60 to 80 feet.”

When Moore reminded her that, at the preliminary examination at Quincy, she had said that she was not sure that Sacco was the man she had seen, Miss Splaine denied that she had ever made that statement. The next day, however, she indicated that perhaps she had indeed said that.

Q. Do you wish to change any part of your testimony that you made yesterday?

A. Yes, sir.

Q. What part of your testimony would you like to change at the present time?

A. That question and answer where you asked me if I possibly identified the man, and in Quincy I said I didn’t feel I would positively identify him. I said I didn’t say that yesterday, but on reflection that was the answer in Quincy.

In addition, she admitted that, after the shooting, she had identified a photograph which the police had shown her as the man she had observed leaning out of the car. She later learned that the man in the photograph had been in New York’s Sing Sing Prison on April 15th.

When Mr. McAnarney took over from Moore, he asked the witness whether she was sure that she had had enough time on the day of the murders to get a good look at the defendant. “Yes, sir, I think I did,” was her answer. The lawyer shook his head. Hadn’t she testified in Quincy that “I don’t think my opportunity afforded me the right to say he is the man.”? Yes, she had made that statement. But now, she was “positive he is the man, certain he is the man. I admit the possibility of an error, but I am certain I am not making a mistake.” McAnarney pressed her.

Q. What did you mean when you said you didn’t have sufficient opportunity to observe him?

A. Well, he was passing on the street.

Q. That is the only opportunity you had?

A. Yes, sir.

Q. You have had no other opportunity but that fleeting glance?

A. The remembrance of that.

She hadn’t seen Sacco since the Quincy hearing on May 26, 1920, but, even without “any further examination of him,” she had changed her mind and now believed that he was the man.

Frances J. Devlin, another Slater & Morrill bookkeeper, who worked in the same room with Miss Splaine, had seen a man in the back of the Buick fire into the crowd that had developed around Parmenter and Berardelli. “He was a dark man,” she recalled, “and his forehead, the hair seemed to grow away from the temples, and it was brown-black and he had clear features, rather clear features, and rather good looking, and he had a white complexion and a fairly thick-set man, I should say.” She had identified Sacco at the Brockton Police Station as looking “very much like the man that stood up in the back seat shooting.” She was far more definite when Katzmann asked her to look around the courtroom and “see if you see that man.” She pointed to the steel cage in which the two defendants were sitting and said, “The man on the inner side as you go out.”

Q. The man who is smiling?

A. Yes, sir.

Q. That man you know is Sacco?

A. Yes, sir.

No, there had never been any doubt in her mind “at any time” that the defendant was the man she had seen.

Yet, a year earlier she had testified in Quincy that she couldn’t say “positively” that Sacco was the gunman she had witnessed. But she had a ready answer for the seeming conflict in her testimony. “At the time there I had in my own mind that he was the man, but on account of the immensity of the crime and everything, I hated to say right out and out. I knew he was the man and still I didn’t want to say knowing as I knew it would be a deliberate lie, according to my own mind, but still I hated to say right out and out, so I just put it that way.” She had also sworn in Quincy that short, stocky Sacco was “a man who seemed as though he was a big man to me.”

Victrola salesman Carlos E. Goodridge was certain that Sacco was the man who had waved a gun at him when the black Buick raced by Magazu’s pool parlor on lower Pearl Street. He remembered the defendant as “a dark complexioned fellow with dark hair and he had ... a kind of peculiar face, that came down pointed.” When McAnarney tried to find out whether Goodridge wasn’t having his own problems with the law, Judge Thayer intervened. “You can’t attack any witness’ credibility,” he observed, “except by showing a record of conviction.” The jury was never to learn that the salesman had recently pleaded guilty to larceny and had been placed on probation.

Goodridge’s testimony conflicted sharply with that of Harry Arrogani, a South Braintree barber. Five or six days after the murders, Goodridge had told the barber that he had seen “a man in the car but if I have got to say who the man was, I can’t say.” Peter Magazu, the owner of the pool room, said that Goodridge had described the man who had pointed the gun at him as a “young man with light hair, light complexion.” Andrew Manganio, Goodridge’s sales manager, later testified that his pool-playing employee had refused to identify the defendants in jail because he had been so frightened by the gun that “he could not possibly remember the faces.”

Drs. George B. Magrath and Nathaniel S. Hunting had conducted the autopsies on the two murdered men. Four bullets were found in Berardelli’s body and two in Parmenter’s. As each bullet was removed, the physicians had scratched a Roman numeral in its base. The one which had caused Berardelli’s death, a .32-caliber Winchester, was marked No. III. At the trial, Captain William H. Proctor, the ballistics expert for the Massachusetts State Police, testified that all but the No. III shell had been fired through a Savage automatic pistol.

When Sacco was searched at the Brockton police station, a “.32 Colt automatic,” which was to become Katzmann’s Exhibit 28, was found in his belt. Proctor said that he had conducted tests on the fatal bullet and the defendant’s gun. As a result of his investigation, he was prepared to say that No. III was “consistent with being fired by that pistol.” As for the other five bullets, his opinion was that they had not been fired from Sacco’s Colt.

Captain Proctor’s opinion was shared by Charles Van Amburgh, an assistant in the ballistics department of the Remington Arms Company. He also had examined the fatal bullet and Sacco’s pistol.

Q. Have you formed an opinion ... as to whether or not No. III bullet was fired from that particular Colt automatic?

A. I have an opinion.

Q. And what is your opinion?

A. I am inclined to believe that it was fired, No. III bullet was fired, from this Colt automatic pistol.

He had reached this conclusion after comparing the No. III bullet with six test shots which he and Captain Proctor had fired into oiled sawdust at Lowell, Massachusetts. “My measurement of rifling marks on No. III bullet as compared with the width of the impressions which I have taken of No. III or of this particular barrel,” he explained, “together with the measurements of the width or dimension of rifling marks in bullets recovered ... in Lowell, inclines me to the belief.” In addition, he had observed marks on No. III which he thought were caused by pitting in the groove of Sacco’s Colt.

James E. Burns, an expert marksman who had been employed by the United States Cartridge Company for more than thirty years, contradicted the prosecution’s experts. He, too, had examined the fatal bullet, and he was convinced that it had not been fired from Sacco’s gun.

Q. ... on what do you base that opinion?

A. On the 11 bullets that I examined that were fired from the Sacco gun. It doesn’t compare with them at all.

The Colt’s barrel had shown “a clean-cut lead all the way through.” There wasn’t a particle of doubt in his mind that No. III had not been fired “from a gun that had a clean lead.”

J. Henry Fitzgerald, the director of the testing room at the Colt Firearms Company, agreed with Burns that No. III “was not fired from the pistol given to me as Exhibit 28.” He had examined three bullets which had been fired by Mr. Van Amburgh at Lowell and, “the land marks of the No. III bullet do not correspond, in my best judgment, to bullets I have seen fired from this pistol.” Like Burns, he had been unable to find any distinctive pittings in the groove of Sacco’s gun.

The cap which Fred L. Loring had found lying near Berardelli’s body had been turned over to Thomas F. Fraher, Slater & Morrill’s superintendent. Katzmann called George T. Kelley, Sacco’s foreman at the 3-K Shoe Factory, who testified that the defendant often wore a cap to work. “There were times that he wore a cap,” Kelley said, “There was other times he wore a hat.” As to the former, he could remember only that it had been “a dark cap ... of a salt and pepper design.” He was unable to recall whether the cap he had seen hanging on a nail near Sacco’s workbench had earlaps or not.

When the defense objected to the introduction of the cap on the ground that it had not been sufficiently identified as belonging to Sacco, Judge Thayer ordered Mr. Williams to ask Kelley whether “that cap ... is like the one that was worn by the defendant Sacco?” “In color only.” the witness replied.

THAYER: That is not responsive to the question. I wish you would answer it, if you can.

KELLEY: I can’t answer it when I don’t know right down in my heart that that is the cap.

THAYER: In its general appearance, is it the same?

KELLEY: Yes, sir.

Thayer promptly admitted the cap into evidence as the Commonwealth’s Exhibit 29.

After Sacco’s arrest, Lieutenant Daniel T. Guerin had visited his home and found another cap in the kitchen. Later in the trial, when Kelley was recalled as a witness for the defense, he was shown this second cap. He said that he thought that the cap the policeman had found looked more like the one he had seen the defendant wearing than did Exhibit 29. On cross-examination, Katzmann asked him if he hadn’t told the police when they interviewed him about the cap that “I have an opinion ... but I don’t want to get a bomb up my ass.” Kelley admitted that he “might have said it when they drove off, but not at the time when they showed me the cap.”

Q. Was that in reference to the cap?

A. Yes.

Later in the trial, when Katzmann cross-examined Sacco, he asked him to put Exhibit 29 on his head. According to the Boston Herald, “It stuck on the top of his head and he turned with a satisfied air to let the jury see.” He then explained to the District Attorney that the cap was “too tight” to fit properly.

Q. You are sure of that?

A. I am pretty sure. I can feel it.

He denied that the cap was his and his wife subsequently testified that her husband “never wore caps with anything around for his ears, never, because he never liked it and because, besides that, never, he never wore them because he don’t look good in them, positively.”

Mrs. Simon Johnson said that, after her husband had gone to bed on May 5th, Boda had knocked on her front door and asked her whether he could pick up his Overland car. When she awakened her husband, he had told her to go next door to Mrs. Bartlett’s and telephone the police. She had walked over to her neighbor’s house and called Chief Stewart. Although there was no street light near her home, the area had been illuminated by the headlight of a motorcycle which she noticed was parked in the street. Two strange men who were standing in the vicinity of the vehicle, seemed to follow her when she left to make her call. Ten minutes later, when she was walking back from Mrs. Bartlett’s, she saw the same men who appeared to be “walking along” with her. She was sure that Sacco was one of the men who had tailed her that night.

When she had testified in the earlier trial of Vanzetti at Plymouth, Mrs. Johnson had not been so confident of her identification of the men who had followed her. Then she had been certain that she “did not know who they were or whether they were the same men or not.” Now, she was prepared to say that “one of them” was the same man.

Q. ... do you want to say that you recognized Sacco before you went into the Bartlett house?

A. I would know him if I saw him again.

Q. I submit it is not an answer to the question.

THE COURT. Can you answer it, Mrs. Johnson, by Yes or No?

A. Yes.

Q. Then by that I assume that you mean you did recognize him before you went into the Bartlett house?

A. Before I did, yes.

The witness’ husband told a somewhat different story. At no time, had either of the strange men been illuminated by the beams of the motorcycle’s light. While he had not watched his wife walk over to the Bartlett’s, he had seen her on the return trip. At that time, he was sure that, with the exception of Boda, all the strangers were standing near the cycle. He had told Boda that he couldn’t have the car that night because “there were no 1920 number plates on it.” The latter had replied that “I will send somebody for it tomorrow,” but no one had ever called for the car.

Michael J. Connolly and Earl J. Vaughan, two Brockton policemen, had arrested the defendants on the North Elm Street trolley later that evening. Connolly was the first officer to board the car. “... I went down through the car,” he said, “and when I got opposite the seat I stopped and I asked them where they came from. They said, ‘We went down to see a friend of mine.’ I said, ‘Who is your friend?’ He said ‘A man by the —— they call him ‘Poppy.’ ‘Well,’ I said, ‘I want you, you are under arrest.’”

According to Connolly, Vanzetti, who had been sitting on the seat nearest the window, put his hand in his hip pocket. The policeman had shouted, “Keep your hands out on your lap, or you will be sorry!” When the two defendants asked him why they were being arrested, he had told them that they were “suspicious characters.” Vaughan then boarded the car and Connolly ordered Vanzetti to stand up so that the latter could “fish” him. He himself gave Sacco “a slight going over ... did not go into his pockets.”

Q. Was anything found on either man at that time?

A. There was a revolver found on Vanzetti.

The two suspects were then transferred to a police car which was waiting alongside the tracks. Connolly “put Sacco and Vanzetti in the back seat ... and Officer Snow got in the back seat with them. I took the front seat with the driver, facing Sacco and Vanzetti.” During the trip to the Brockton station house, Connolly noticed that Sacco “reached his hand to put under his overcoat and I told him to keep his hands outside of his clothes and on his lap.” When he asked the defendant, “Have you got a gun there?,” the latter had replied, “No, I ain’t got no gun.” Merle A. Spear, the driver of the car, swore that he had heard this conversation and that Sacco had answered, “You need not be afraid of me.” Later that evening, a Colt revolver had been found in Sacco’s pocket.

Chief Stewart had arrived at the police station shortly after eleven o’clock that night. The two prisoners told him much the same story that they had related to Connolly. They insisted that they had gone to West Bridgewater to see a friend named Poppy but denied any knowledge of Boda or Orciani’s motorcycle. Sacco thought that they had left his house at 6:30 that day while Vanzetti was sure that they had started out three hours earlier. Sacco claimed that he had purchased his Colt in Hanover Street in Boston many months before his arrest.

On June 22nd, after fifty-nine witnesses had testified for the prosecution, Katzmann informed Judge Thayer that “We believe we have nothing further to offer ... the Commonwealth rests, if your Honor please.” Following Callahan’s opening statement, the defense promptly called Frank J. Burke, the glassblower who had watched the Buick race over the Pearl Street crossing after the murders. He had gotten a good look at its passengers and he was certain that neither defendant had been in the car. “I would say they were not,” he said. But on cross-examination, Katzmann succeeded in showing that the witness had such poor eyes that he had thought that Mr. Callahan’s Hudson in which he had been driven to the courthouse that very morning was a Buick.

Mrs. Barbara Liscomb, the Rice & Hutchins employee who had fainted when one of the gunmen pointed his pistol at her, “would always remember his face.” When she had been taken to the Brockton police station, she had been unable to identify either defendant.

Q. And you have looked at these men in the dock?

A. I have.

Q. Are either of the men in the dock the man you saw pointing the revolver at your window?

A. No, sir.

She was “positively sure” that she had never seen either Sacco or Vanzetti before.

Jennie Novelli, a nurse, who, some ten minutes before the shooting, had seen the Buick proceeding slowly up Pearl Street in the direction of the Rice & Hutchins plant, said the man who had been sitting next to the driver was not Sacco although she had previously told a detective that a photograph of the defendant “resembled” the man she had seen in the car. Albert Frantello insisted that the defendants were not the men he had noticed leaning against the Rice & Hutchins fence before the murders. None of the laborers at the restaurant excavation or the railroad employees who had been repairing tracks at the Pearl Street crossing could say that they had seen Sacco or Vanzetti in the vicinity of the crime. In all, some two dozen eyewitnesses testified that they had not seen either defendant in South Braintree on April 15, 1920.

Vanzetti was the first of the two defendants to take the stand. As far as the day of the murder was concerned, he insisted, in broken English, that he had not left Plymouth. In the morning, he had been “selling fish from a cart” on Castle and Cherry Streets. Some time during the morning, he had asked Joseph Rosen, a peddler, to accompany him to the home of Mrs. Alphonsine Brini so that she could look at a piece of cloth which Rosen wanted to sell to him. Vanzetti thought that this had taken place “near one o’clock, about half past eleven, something like that, half past twelve, about one o’clock.”

After he had sold all his fish, the defendant had visited Melvin Corl, a friend of his, who was painting his boat. He had had a long conversation with Corl—about an hour and a half—during which time he had also talked to a boat builder by the name of Frank Jesse. Then he had gone home, changed his clothes, and eaten his supper. He could not remember what he had done after finishing his dinner.

On May 5th, he had accompanied Boda to the Johnson home in order to pick up the latter’s car which was to be used in collecting radical literature from the homes of some of his friends “in five or six places, five or six towns.” The mysterious death in New York, on May 3rd, of Andrea Salsedo, a radical with whom he had been associated for many years, had convinced him that he should “get the books and literature to put at some place and hide not to find by the police or the state.” He had not told the police about his plans for that night “because in that time there, there was the deportation and the reaction was more vivid than now and more mad than now.”

He readily admitted that he had lied to Stewart when the police chief had questioned him after his arrest. “I was afraid,” he said, “he went into the house of the people that they named and found some literature or paper and arrested the men ... I was scared to give the names and addresses of my friends as I knew that almost all of them have some books and some newspapers in their house by which the authorities take a reason for arresting them and deport them.” His fears had been aggravated by the fact that Officers Connolly and Vaughan had refused to tell him why he was being taken into custody.

Q. What did they say what you were arrested for?

A. They say, ‘Oh, you know, you know why.’ And when I try to sleep in the cell, there is no blanket, only the wood. Then we called for the blanket, because it was rather cool. They say, ‘Never mind, you catch warm by and by, and tomorrow morning we put you in a line in the hall between the chairs and we shoot you.’

In fact, during the night, one of his jailers had spit in his face and threatened him with a revolver.

Vanzetti also conceded that he had lied to Katzmann when the District Attorney had questioned him about the price he had paid for his revolver, the number of times he had visited Boston overnight, and his acquaintance with Boda. Again he based his reluctance to tell the truth on his desire to shield his friends. “I intend to not mention the name and house of my friends” he explained.

Joseph Rosen testified that he had sold Vanzetti several pieces of cloth at noon on April 15th. Mrs. Brini remembered that she had seen the defendant selling fish that morning and that he and Rosen had come to her house to get her opinion as to the worth of some swatches of material. Her daughter, LeFavre, had also seen the fish peddler on both occasions. At noon, Angel T. Guidobone, a rug worker, had purchased some codfish from Vanzetti. Melvin Corl recalled that the defendant had visited him when he was painting his boat, and Frank Jesse stated that he had talked to Vanzetti about an automobile while they were watching Corl at work.

Sacco confirmed Vanzetti’s testimony that both men had told falsehoods because they were afraid that they had been arrested for their radical activities. Since the police had not informed them of the nature of the charges against them, he had been convinced that he and Vanzetti had been picked up because they had been working “for the movement for the working class, for the laboring class.” In fact, one of the first things Stewart had asked him was whether he was a Socialist.

Q. When he asked you what you were in Bridgewater for, did you give him a true reason for being there?

A. No, sir, because I was afraid to arrest us, they arrest somebody else of the people....

Like Vanzetti, he freely admitted that he was a Socialist who did not believe in war. After the United States entered the war in 1917, both he and his co-defendant had run away to Mexico to avoid the draft. Sacco had returned to Massachusetts several months later under an alias and had not resumed his real name until after the war ended. As he put it, “What right do we have to kill each other? I don’t believe in no war. I want to destroy those guns.” He loved his adopted country, but his hatred of war was greater than his devotion to an abstraction.

As far as April 15th was concerned, he maintained that he had spent the entire day in Boston. In the middle of March, he had received a letter informing him that his mother had died in Italy. He had decided to take his family back to the old country and had gone to Boston on the day of the murders to have his passport validated at the Italian Consulate. He had taken the 8:56 train from Stoughton and, after arriving at South Station, had walked to Hanover Street where he had met Angelo Monello, a Roxbury contractor. Then he had gone to Boni’s Restaurant for lunch with Felice Guadagni, the editor of an Italian journal. The two men were later joined by John D. Williams, a space salesman for several foreign-language newspapers, and Albert Bosco, a La Notizia editor.

Sacco had left Boni’s at 1:30 and gone to the consulate. He was told by some man there that the photograph he had brought was much too big to fit on a passport. Then he had dropped in at a nearby coffee house where he had again met Guadagni and Antonio Dentamore, a former newspaperman. At 3:20, after buying some groceries at a nearby store, he had paid a debt of fifteen dollars to a man named Affe. Then, he had caught the 4:12 train back to Stoughton, arriving home shortly after six o’clock.

Katzmann was remorseless in his cross-examination. Why hadn’t the defendant gone to the consulate in the morning and taken the noon train back to Stoughton? “Well, I think to pass all day when I been in Boston,” was the reply. Hadn’t he lied to George Kelley, his foreman, when he had told him “that there was such a crowd in there you could not get your passport and the place closed and you missed the noon train for that reason?” Yes, he had lied to Mr. Kelley. He also hadn’t told the truth at Brockton when he claimed that he had worked on the fifteenth. “I was not sure,” he explained, “There was not interest to me very close to find out the date I have been out.”

A bevy of witnesses paraded to the stand to buttress Sacco’s alibi. Dominick Ricci said that he had seen the shoemaker early on the morning of the fifteenth at the Stoughton railroad station. At eleven a.m., Angelo Monello had passed the time of day with him in East Boston. Guadagni, Williams and Bosco verified the lunch at Boni’s. According to an affidavit submitted by Guiseppe Andrower, the former passport officer at the Italian consulate, Sacco had come to his window at two p.m. and shown him a photograph which the official had said was too large for a passport. “April 15th, 1920, was a very quiet day,” he swore, “and since such a large photograph had never been before presented for use on a passport, I took it in and showed it to the Secretary of the Consulate. We laughed and talked over the incident.”

At 2:45, at Giordani’s coffee house, the defendant had complained to Dentamore that he would have to go to the expense of having another picture taken for his passport. Carlos M. Affe remembered that Sacco had dropped in at his grocery store between three and four o’clock to pay an outstanding bill of $15.50. Mrs. Sacco, who testified through an interpreter, knew that her husband had gone to Boston on the 15th because that was the day she had been visited by Henry Iacovelli, a friend from Milford. Mr. Iacovelli confirmed that he had indeed called at the Sacco home that day.

As for their guns, each defendant had an explanation. Vanzetti claimed that he had bought his for five dollars from a friend named Luigi Falzini in early 1920 because “it was a very bad time and I like to have a revolver for self defense.”

Q. What do you mean ‘It was a bad time?’

A. Bad time, I mean it was many crimes, many holdups, many robberies.

Sacco maintained that he had gotten into the habit of carrying a gun when he had worked as a night watchman at the 3-K Shoe Factory. On the day he was arrested, he and Vanzetti had planned “to go to shoot in the woods” but had not done so because “we started an argument and I forgot....”

On July 14th, after Judge Thayer had delivered his charge from a flower-bedecked bench, the jury retired. Some seven hours later, it filed back into the courtroom. When Clerk Worthington asked if it had reached a verdict, Foreman Walter R. Ripley announced that it had. He and his colleagues had found each defendant guilty of murder in the first degree. Thayer was happy to express the Commonwealth’s gratitude for “the service that you have rendered. You may now go to your homes, from which you have been absent for nearly seven weeks.” As the twelve men hurried to take his Honor’s welcome advice, Sacco shouted, “They kill an innocent man! They kill two innocent men!”

His prophecy was somewhat premature. On November 5th, a motion for a new trial on the ground that the verdict was against the weight of evidence was argued before Thayer. It was denied on the day before Christmas. As far as the judge was concerned, he would not “announce to the world that these twelve jurors violated the sanctity of their oaths, threw to the four winds of bias and prejudice their honor, judgment, reason and conscience, and thereby abused the solemn trust reposed in them by the law as well as the Court.” If any errors had been committed during the trial, no one would be happier than he if the Supreme Judicial Court corrected them. “But until that time comes,” he said, “so far as these motions are concerned, the verdicts of the jury must stand.”

Before Thayer’s decision, Jeremiah McAnarney had learned that, during the trial, Foreman Ripley had exhibited some .38-caliber cartridges to other members of the jury. Unfortunately, Ripley died before the lawyer could obtain a statement from him. However, two of his fellow jurors admitted that they had seen the bullets and, on the strength of this, the defense attorneys filed the first of six supplementary motions for a new trial. In their briefs, they argued that it was improper for the jurors to have considered any but legitimate exhibits.

To buttress their position that Ripley was hopelessly prejudiced against the defendants, their lawyers submitted an affidavit by William H. Daly, a good friend of the ex-foreman, who stated that he had run into him at a railroad station several days before the trial. When Daly had expressed some doubt as to whether Sacco and Vanzetti were guilty, Ripley had replied, “Damn them, they ought to hang them anyway.” The prosecution offered no evidence to contradict the Daly affidavit.

In early October of 1921, Frank J. Burke, the glassblower who had testified for the defense, ran into Roy E. Gould in Portland, Maine. The razor paste peddler had never been called as a witness despite the fact that he had given his name to the police. When the black Buick had driven by him, he had gotten a good look at its occupants. According to his sworn statement, which Moore used as the basis of his second supplementary motion, “the man that he saw at South Braintree on April 15, 1920, at or about the hour of three o’clock in the afternoon, riding in the bandit car, front seat, on the right-hand side of the driver, is not the man that he saw in the Dedham County Jail, and who was pointed out to him as Nicola Sacco.” As far as Vanzetti was concerned, he had seen photographs of the condemned man and “he in no sense resembles the man affiant saw at South Braintree on April 15th, 1920.”

On February 4, 1922, Lewis Pelser admitted in writing to Moore that he had perjured himself at the trial. His original statement to a defense investigator that he hadn’t seen anyone in the bandits’ car because he had been huddling under his workbench was, he now admitted, the true story. Pelser’s retraction was made part of the Gould motion. However, several days later, he wrote a letter to Katzmann in which he claimed that he had been drinking “pretty heavy” when Moore interviewed him. “He asked me one question and other,” he wrote, “and finally had my whole story contradicted what I had said at the Dedham Court.” He had decided to write to the District Attorney because he was “worried at the way they have framed me up and got me into trouble.”

Moore’s third motion was based on the fact that Carlos Goodridge, the Victrola salesman who had rushed out of Magazu’s poolroom just as the Buick drove by, had not used his right name at the trial. Furthermore, the lawyer alleged that Goodridge had twice been convicted of theft in New York and that, when he testified, he was a fugitive from a third indictment. In opposing Moore’s motion, Katzmann introduced an affidavit from the salesman, admitting most of the defense’s contentions, but insisting that his testimony had been accurate.

On September 11, 1922, Moore filed a fourth motion. Two days earlier, Lola Andrews had signed an affidavit in which she repudiated the testimony she had given at Dedham, claiming that she had been coerced by the District Attorney and the police. Now, she was prepared to state that “each and every part of her testimony ... wherein she identified the said Nicola Sacco as the person that she had seen on April 15, 1920, is false and untrue.” To the best of her knowledge, she had never seen the defendant until he was pointed out to her in the Dedham County Jail.

Four months later, Mrs. Andrews retracted this repudiation. She told Katzmann that Moore and his associates had threatened to prosecute her and her son if she did not sign a statement which indicated “that I had told a lie, that I did not at any time see Sacco at South Braintree.” She would never have signed the paper if her son hadn’t put his arm around her and said, “Mother, sign this paper and have an end to all this trouble, for you did not recognize these men, and you will be doing a terrible wrong if you send those men to the chair.” She now maintained that she had told the truth at Dedham.

In April of 1923, Albert H. Hamilton, a well-known criminologist, who had testified in more than 165 murder trials, examined all the exhibits in the case. He came to the conclusion that the fatal bullet had not been fired from Sacco’s gun. He was supported in his thesis by a member of the faculty of the Massachusetts Institute of Technology. In opposing this motion—the defense’s fifth—Katzmann submitted affidavits by several arms experts, disputing Hamilton’s claims.

As an adjunct to the Hamilton motion, William G. Thompson, who had come into the case in 1923, filed an affidavit by William H. Proctor. Captain Proctor, who had testified for the Commonwealth that Bullet III was “consistent with” having been fired from Sacco’s pistol, now explained that he had meant to say only that it was “fired from a Colt automatic pistol of .32-caliber.” He insisted that he had “repeatedly” told Katzmann that he could not swear that the “so-called mortal bullet ... passed through Sacco’s pistol.” “Had I been asked the direct question,” he stated, “whether I had found any affirmative evidence whatsoever that this ... bullet had passed through this particular Sacco’s pistol, I should have answered then, as I do now without hesitation, in the negative.”

After hearing argument on all these motions, Thayer denied each one on October 1, 1924. He did not feel that the “mere production” of Ripley’s cartridges in the jury room had in any way prejudiced the defendants and, besides, he was unwilling to “blacken the memory” of the dead juror. As far as Gould was concerned, he was convinced that the razor paste salesman must have been mistaken. He disposed of the Pelser retraction by blaming it on an excess of liquor. The motion attacking Goodridge’s veracity because of a previous criminal record was a “bold and cruel attempt to sandbag Goodridge by threatening actual arrest” which he could only attribute to Mr. Moore’s “over-enthusiastic interest in his client’s cause.” Lastly, Mrs. Andrews’ repudiation had been procured by duress, Hamilton’s opinion was unconvincing, and, if Captain Proctor had really believed that the fatal bullet did not come from Sacco’s gun, he had had ample opportunity at the trial to make himself clear.

After Judge Thayer’s decision, all of the defense attorneys except Thompson withdrew from the case. On May 12, 1926, the five-judge Supreme Judicial Court of Massachusetts, in a sixty-page opinion, affirmed the trial judge’s denial of the various motions. Two weeks later, Thompson filed another application for a new trial, this time based on the admission by one Celestino F. Medeiros, a convicted murderer, who had sent a note to Sacco in jail in which he confessed that he had participated “in the South Braintree shoe company crime and Sacco and Vanzetti was not in said crime.”

Although Medeiros would not name the men who had been associated with him in the Slater & Morrill holdup, he was willing to reveal every other aspect of the crime. He had met the four other members of the gang in a Providence saloon and they had driven to Randolph in a Hudson which they exchanged for a Buick in some woods outside of town. Then they proceeded to South Braintree, killed Parmenter and Berardelli, and drove back to the woods where they abandoned the Buick and raced back to Providence in the Hudson. Medeiros’ role during the holdup was to sit in the rear of the Buick with a gun and “help hold back the crowd in case they made a rush.”

Despite all of Thompson’s astuteness, Medeiros would not name any names. The most the lawyer could get from him was the fact that the gang had been composed of Italians who “had been engaged in robbing freight cars in Providence.” At the time of the South Braintree murders, a group of criminals known as the Morelli gang had been hijacking freight cars throughout New England. In fact, on April 15, 1920, several of its members were out on bail awaiting trial for stealing shoes which had been consigned by both Slater & Morrill and Rice & Hutchins. Medeiros’ descriptions of his confederates fitted the known members of the Morelli group.

Although Felix Frankfurter was convinced that Medeiros, who maintained that he had confessed because “I seen Sacco’s wife come up here with the kids and I felt sorry for the kids,” was telling the truth, Judge Thayer felt otherwise. As far as he was concerned, Medeiros was unworthy of belief because he was “a crook, a thief, a robber, a liar, a rum-runner, a ‘bouncer’ in a house of ill-fame, a smuggler, and a man who has been convicted and sentenced to death for ... murder.” If Medeiros was so eager to save two men whom he claimed were innocent, why didn’t he reveal the names of the other men who had supposedly participated in the Slater & Morrill caper? Furthermore, he felt that Medeiros’ haziness as to certain details of the crime clearly indicated that he had not been there.

On April 5, 1927, Thayer’s denial was affirmed by the appellate court. Four days later, the two defendants were brought before him for sentencing. After both men had made statements affirming their innocence, Thayer ordered that they “suffer the punishment of death by the passage of a current of electricity through your body within the week beginning on Sunday, the tenth day of July, in the year of our Lord, one thousand, nine hundred and twenty-seven.” As the judge was intoning the death sentence, Sacco interrupted to shout, “You know I am innocent. That is the same words I pronounced seven years ago. You condemn two innocent men.”

On May 3rd, Vanzetti wrote to Governor Alvan T. Fuller, on behalf of Sacco and himself, requesting clemency. Fuller’s response was to appoint an Advisory Committee composed of President Abbott Lawrence Lowell of Harvard, President Samuel W. Stratton of M. I. T. and Probate Judge Robert Grant, to investigate the evidence against the condemned men. Because the three-week hearing didn’t begin until July 1st, the executions were postponed for one month. On July 27th, the committee’s members reported to the governor that they had “seen no evidence sufficient to make them believe that the trial was unfair.” One week later, Fuller stated that he had found “no sufficient justification for executive intervention.” “I believe with the jury,” he said, “that these men, Sacco and Vanzetti, were guilty and that they had a fair trial.”

Since the executions were scheduled for August 10th, a variety of petitions and motions were filed with everyone from Judge Thayer to Mr. Justice Oliver Wendell Holmes, all without success. In order to give the defense time to appeal several of these denials to the Supreme Judicial Court, Fuller granted a reprieve until August 22nd. Two days earlier, petitions for certiorari were filed with the clerk of the United States Supreme Court but Justices Holmes, Brandeis, Stone and Taft refused to halt the executions. As Holmes put it, “I cannot say that I have a doubt and therefore I must deny the stay.”

At 12:19 on the morning of August 23, 1927, Sacco died in the electric chair at Charlestown State Prison. Seven minutes later, he was joined in death by his friend Vanzetti who wished “to forgive some people for what they are doing to me.” Perhaps the several thousand people who milled around the prison that torrid August night could take some small measure of comfort from Vanzetti’s remarks to a newspaper reporter on the seventh anniversary of the South Braintree shooting: “If it had not been for these things, I might have lived out my life, talking at street corners to scorning men. I might have died, unmarked, unknown, a failure. Now, we are not a failure. This is our career and our triumph. Never in our full life can we hope to do such work for tolerance, for justice, for man’s understanding of man, as now we do by an accident. Our words, our lives, our plans, nothing! The taking of our lives, lives of a good shoemaker and a poor fish peddler—all. That last moment belongs to us. That agony is our triumph.”

5

He Defied the Bible

The State of Tennessee
versus

John Thomas Scopes

Macon County was, in 1925, one of Tennessee’s most rural areas. Without a single mile of railroad track, its almost unbroken stretches of farmland were tilled by a God-fearing, Bible-reading population whose sole contact with the outside world consisted of weekly visits to LaFayette, the tiny county seat. Its representative in the lower house of the state legislature was one John Washington Butler, a combination farmer-school teacher, who worked 120 acres just outside of LaFayette.

Butler had first run for election in 1922 on a platform that stressed the need for a law prohibiting the teaching of evolution in the public schools of Tennessee. During his first term, he was evidently much too engrossed with finding his way around Nashville to do any legislating, but he assured his constituents that, if they sent him back for a second stint, he would find the time to push an anti-evolution bill. The good people of Macon County believed him and, in November of 1924, he was resoundingly reëlected to the House of Representatives.

When he returned to the capital the following January, he lost no time in living up to his campaign promise. He drafted a statute that would make it unlawful for any public school teacher “to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.” The penalty was a fine ranging between one hundred and five hundred dollars. Butler threw his bill into the legislative hopper, saw that it reached the floor of the House, and then promptly washed his hands of it.

By all odds, the proposed legislation should have died aborning. But with surprisingly strong Baptist support, it carried the lower house on January 28, 1925 by a vote of 71 to 5. The next day, Williams Jennings Bryan, who had been fighting Darwinism up and down rural America, roared into Nashville with his rhetorical “Is the Bible True?” harangue. Every word of it was, he assured his enthusiastic audience, some of whom were so carried away by his oratory that they printed his speech and sent it to each member of the legislature. Six weeks later, the Butler Act skipped handily through the Senate by a vote of 24 to 6. On March 21st, a skeptical Governor Austin Peay signed it into law because he was convinced that it would never be “an active statute.” He couldn’t have been more mistaken.

Up in New York, Roger Baldwin, the director of the struggling American Civil Liberties Union, read a report of the new statute in a Tennessee newspaper. He sent a press release to the Memphis, Chattanooga and Knoxville papers, announcing that the ACLU would gladly finance a test case against the Butler Act if only it could find a Tennessee teacher with enough gumption to violate the law. A month later, a mining engineer named George W. Rappelyea, who managed the Dayton mines of the Cumberland Coal and Iron Company, informed Baldwin that he was in a position to arrange a test case. His offer was promptly accepted.

Rappelyea, who had been raised on New York’s Third Avenue, was, in the words of one observer, “an untidy little person with rather ill-tended teeth.” But, from behind his horn-rimmed spectacles, he looked out at the word with alert, questioning eyes and the ACLU’s challenge was more than he could resist. On May 5th, with Baldwin’s offer of financial support in his pocket, he headed downtown to F. E. Robinson’s drugstore where he promptly became involved with three members of the Dayton bar in an argument over the constitutionality of the Butler Act.

At this fortuitous moment, John Thomas Scopes, a twenty-four-year-old graduate of the University of Kentucky, who had been doubling as science teacher and football coach at Dayton’s Central High School, came into Robinson’s for his usual afternoon soda. Here, in this bespectacled, towheaded biologist, whose father was, according to Clarence Darrow, a man who “brought up his family to have their own opinions and to stand by them,” Rappelyea saw his chance to make good on his rash promise to the ACLU. It took the rest of the afternoon to persuade Scopes to go along with the idea but, before the drugstore conclave broke up that evening, Rappelyea was able to telegraph the ACLU that he had found his prospective defendant. The next morning, he received a wire from New York: “We will cooperate Scopes case with financial help, legal advice and publicity.” The State of Tennessee versus John Thomas Scopes was under way.

Rappelyea didn’t waste any time. As soon as Scopes had consented to be his guinea pig, he headed for the sheriff’s office where he swore out a warrant for the young teacher’s arrest. A deputy was sent to Robinson’s drugstore where, after waiting patiently for Scopes to finish his third soda for the day, he arrested him. On May 10th, three Dayton magistrates decided that there was enough evidence that Scopes had been teaching his students the theory of evolution to hold him for the action of the Rhea County Grand Jury which was scheduled to convene early in August. Bail was set at $1000 and it was promptly posted by the ACLU.

To the merchants of Dayton, the impending trial was a bonanza of no mean proportions. It was sure to fill Main Street with thousands of curiosity seekers who could be counted on to leave many a sawbuck behind them. But more than that, if Dayton was ever to get on the map, this was its main chance. For years it had been going downhill as Chattanooga, its neighbor to the southwest, had grown by leaps and bounds. With a monkey matched against the Bible in the newly painted brick courthouse that sat on a two-acre plot off Market Street, there was no telling what might be in store for the town.

But there was one disturbing cloud on the horizon. The possibilities of a wide-open anti-evolution trial had not been lost on Chattanoogans who began to press the city’s official family to get the jump on Dayton. Judge John T. Raulston, of the Eighteenth Circuit Court, who was slated to preside at the Scopes trial, spiked that one by calling a special session of the grand jury on May 25th. After Rappelyea had been replaced by Walter White, the Rhea County superintendent of schools, as the complaining witness, the thirteen jurors took less than an hour to indict Scopes whose trial was then set for Friday, July 10th. Raulston had saved the day for the Main Street merchants who promptly organized eager committees to scrub and paint the town into a brightness it hadn’t known since Peter Donaldson’s blast furnace had failed in 1913. As one reporter put it, “Dayton was determined to be ready for its fame.”

In Darrow’s opinion, “the little town of Dayton, Tenn., had never been heard of very far away from home.” The seat of Rhea County, it was a prosperous village of some two thousand residents, most of whom were gainfully employed by the four or five factories and mills that punctuated its outskirts. Every Saturday afternoon, the Cumberland Mountain farmers flocked into town to spend the money their wheat, tobacco and strawberry crops had earned for them. They would park their open Model-T Fords on the unpaved side streets and, after a snack at the Hotel Aqua, wander in and out of the shops that filled the brick and wooden buildings on Main and Market Streets. On Sunday morning, almost the entire community could be found in the nine churches whose spires gave Dayton the nearest thing to a skyline it would ever have.

However, the town was far from a hotbed of religious fanatics. Although theology was always a lively subject on its shady street corners, the average Daytonian was not one to lose his head over sacerdotal differences of opinion. But its ministers didn’t share their parishioners’ equanimity on matters spiritual. Convinced, publicly at least, that “the Holy Bible contains and is itself the fountain of true wisdom,” they set about raising funds which they hoped to donate to the prosecution staff to offset the thousand-dollar fees which, rumor had it, the ACLU was dangling before the eager noses of local lawyers. Scopes and any other evolutionist had to be shown that anyone who taught “our children any theory which has as its purpose or tendency the discrediting of our religion” would be promptly punished. If the Reverend L. M. Cartwright and his cohorts couldn’t disprove Darwin’s hypothesis, they could certainly discourage its converts.

When Scopes was first arrested, he had retained John Randolph Neal, a former law professor at the University of Tennessee, who had just opened a law school in Knoxville. Neal, despite his reputation for eccentricity, was astute enough to recognize that he lacked the trial experience that Scopes’ defense demanded. Originally, he was convinced that John W. Davis was the right man to represent the young teacher but, when Clarence Darrow volunteered his services, Neal realized that the man and the case had met. “For the first, the last, and the only time in my life,” Darrow later told a friend, “I volunteered my services in a case. I did this because I really wanted to take part in it.”

What undoubtedly motivated Darrow to take this unprecedented—and, as it turned out, extremely expensive step—was the fact that, on May 13th, William Jennings Bryan, the thrice-defeated Democratic candidate for the Presidency, had announced in Pittsburgh that he would, Tennessee officialdom willing, represent the World’s Christian Fundamentals Association in the case. Bryan, who was at the time a vociferous hawker for Florida real estate, was, in Darrow’s opinion, “the logical man to prosecute the case.” He had sparked the passage of anti-evolution statutes in several Bible Belt states and was the leader of the American fundamentalist movement. Two years earlier, he and Darrow had clashed in the pages of the Chicago Tribune over what the Chicagoan considered the former’s attempts “to shut out the teaching of science from the public schools.” A Dayton booster could hardly have asked for a better cast.

On the evening of July 9th, Darrow arrived in a Dayton that looked as if it were expecting a revival meeting rather than a criminal prosecution. As he drove from the railroad station, he passed under signs that admonished him to “Come to Jesus” and “Prepare to Meet Thy Maker.” The town was bedecked with flags and bunting while sidewalk refreshment stands, with monkey posters pasted on their sides, lined both sides of Main Street. Two tame chimpanzees in a store window were entertaining the curious crowds which had been flocking into town for more than a week. Newspapermen, radio operators, photographers, farmers, telegraphers, preachers, beggars, tourists and unemployed coal miners—they all thronged into Dayton in such hordes that every available bed had been spoken for weeks before the trial was scheduled to get underway. If nothing else, the big show, which H. L. Mencken had already dubbed the Monkey Trial, was sure to have an audience which would be as huge as it was diverse.

Darrow’s first night in Dayton was spent in The Mansion, an abandoned plantation on the outskirts of town that Rappelyea, in a burst of sudden inspiration, had reopened for the occasion. But a man used to the conveniences of Chicago was not one to camp more than twelve hours in a house that lacked running water and the lawyer spent the rest of the trial in the home of one of the local bankers. Bryan, who had arrived two days before, was quartered at a private home from which he sallied forth to address, in quick succession, the Dayton Progressive Club, the Rhea County Board of Education, and the Methodist Episcopal Church South. In between, when he could tear himself away from the prodigious meals his hosts insisted on serving him, he posed for pictures with John Washington Butler, Judge Raulston, and every minister in town.

Friday, the tenth, dawned hot and humid. When Darrow arrived at the courthouse, he passed under a sign that proclaimed in large letters, “Read Your Bible.” He walked up the rather steep stairs that led to the second-floor courtroom where Raulston, who liked to refer to himself as “jist a reg’lar mountin’eer jedge,” was already ensconced behind his newly painted bench. Darrow pushed his way slowly through the perspiring crowd that blocked every aisle in the courtroom. As he sank into the one vacant chair at the defense table, he nodded to Arthur Garfield Hays, Dudley Field Malone and John Randolph Neal, who were there to assist him. Across the way, at the prosecution table, sat Bryan, his son, William, Junior, and five Tennessee lawyers of varying shapes and sizes. After the Reverend Mr. Cartwright had reminded everyone to look to God for “that wisdom to so transact the business of this court in such a way and manner as that Thy name may be honored and glorified among men,” things were off and running.

But first a little repair work was necessary. The special grand jury that had originally indicted Scopes had been assembled so hurriedly that there was some doubt as to its legality. Raulston promptly swore in a new panel and began to read the Butler Act to it. Then he picked up his well-thumbed copy of the Bible and, in a voice that would have delighted Billy Graham, intoned the first twenty-seven sections of Genesis, pausing significantly at those portions which insisted that “God created man in His own image.” Three of Scopes’ students then told the thirteen bumpkins in the jury box that he had taught his classes all about evolution from George William Hunter’s Civic Biology. In less than an hour, the defendant was properly charged and the prosecution was back on the rails.

The first order of business was the selection of the jury. There wasn’t much to choose from since only nineteen talesmen had shown up that morning. Darrow, who prided himself on his painstaking care in picking a panel, didn’t waste much time with the bemused farmers who shuffled into the jury box and waited patiently for the agnostic from Chicago to question them as to their qualifications. By 1:30 p.m. the jury was complete. Of its eleven members who attended church regularly, six were Baptists, four Methodists and one an adherent of the Disciples of Christ. The single backslider said that he perused the Bible from time to time, but not “like I ought to.” At least one—a former miner named Jim Riley—admitted he could not read but, since both sides apparently considered illiteracy an asset, he was promptly waved into the jury box. As the twelfth man—S. S. Wright—took his seat, Raulston, who was obviously in no hurry to rush the trial along, announced that court would adjourn for the weekend.

On Monday, things began in earnest. After A. T. Stewart, the Attorney General for the Eighteenth Judicial Circuit, had read the indictment to the jury, Neal immediately moved to dismiss it on the ground that it violated both the state and federal constitutions. Raulston thought that the legal arguments on these points might be too heady for his back country jury—which had not yet been sworn in—and he excused its members who promptly repaired to the courthouse lawn where they eagerly listened to the proceedings over the loudspeakers. After the lesser lights on both sides of the fence had used up the morning in forensic fireworks, a now coatless Darrow, who had just been dubbed a Tennessee colonel by Raulston, began his attack on the constitutionality of the Butler Act.

After assuring the judge that he would “always remember that this Court is the first one that ever gave me the great title of ‘Colonel,’” he got down to the business at hand. First of all, he turned to face Bryan, who was busy cooling himself with a palm fan, and declared that the Great Commoner was the one “who is responsible for this foolish, mischievous and wicked act.” Then he spent the rest of the afternoon ripping into the anti-evolution law which he classified as “as bold an attempt to destroy learning as was ever made in the Middle Ages.” He had just gotten up a full head of steam when Raulston interrupted him to announce that it was “adjourning time.” This pronouncement didn’t seem to carry much weight with Darrow who swept on to his climax:

Today it is the public-school teachers, tomorrow the private. The next day the preachers and the lecturers, the magazines, the books, the newspapers. After a while, your Honor it is the setting of man against man and creed against creed until, with flying banners, and beating drums, we are marching backward to the glorious ages of the sixteenth century when bigots lighted fagots to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind.

As he sat down, he noticed for the first time that, in his excitement, he had ripped one of his shirt sleeves.

The next morning—Tuesday, July 14th—he stormed back into the courtroom and shook Raulston to his back teeth by demanding that the practice of opening court with a prayer be abandoned. “I don’t object to the jury or anyone else praying in secret or in private,” he argued, “but I do object to the turning of this courtroom into a meetinghouse in the trial of this case. This case is a conflict between science and religion and no attempt should be made by means of prayer to influence the deliberation and consideration by the jury of the facts in this case.” After Raulston had recovered his equilibrium, he informed Darrow that it had “been my custom since I have been a judge to have prayers in the courtroom when it was convenient, and I know of no reason why I should not follow up this custom, so I will overrule the objection.” As a compromise, he asked New York’s Reverend Charles Francis Potter, who had come to Dayton as a witness for the defense, to lead the next day’s prayer.

Raulston spent the rest of the day working on the opinion which would accompany his decision on the motion to dismiss the indictment. However, at the very moment he was dictating it to his stenographer, the International News Service had informed its subscribers that the defense motion would be denied. The judge, furious at being upstaged, appointed a committee of newspapermen, headed by Richard Beamish of the Philadelphia Inquirer, to investigate the leak. The committee’s report was as simple as it was conclusive. It seemed that William K. Hutchison, an INS reporter, had asked Raulston whether court would be adjourned to the next day after the opinion was read. When the judge replied that it would, Hutchison guessed that the motion had been denied and released a story to that effect. Raulston decided to let the matter drop with a warning to the newsmen not to “ask me any questions without putting me on notice what it is about.”

On Wednesday morning, he confirmed Hutchison’s accurate guesswork and announced that he would not quash the indictment. His reasons were simple—no one was forced to teach in the public schools and, if any teacher’s conscience was troubled by having to hew to the letter of the Butler Act, he could resign and teach in a private institution. Why, if this law wasn’t constitutional, the Holy Writ itself was suspect! He raced through his 6000-word opinion in a little more than an hour, pausing only to wipe the perspiration from his face with a large scarlet handkerchief. When he had finished, the courthouse clock read 11:13 and he promptly adjourned for lunch.

That afternoon, Foreman Jack R. Thompson, a former United States Marshal, led his fellow jurors back into the box and, at long last, they were sworn in. Their first official act was to request, through their foreman, that the judge “take up the matter of some electric fans here.” Unfortunately, the depleted state of the county treasury would not permit such an extravagance, but Raulston graciously consented to “divide my fan,” and it was placed on an oblique with the jury box. He also suggested that a foraging squad be sent out to see what could be done about “borrowing” a fan or two in town.

The first witness for Bryan & Company was Walter White, the county superintendent of schools, who had signed the second complaint against Scopes. He said that the defendant had admitted to him back in May that he had used Hunter’s Civic Biology in class and that it was absolutely impossible to teach from it without presenting Darwin’s theory. As for the Butler Act, Scopes had told White that “the law was unconstitutional anyway.” Yet, despite the threat the text posed to the impressionable minds of Tennessee’s small fry, it had been used in the state’s school system since 1909 and had been officially adopted by the School Book Commission as late as 1924. In fact, it could be purchased in Dayton from the now celebrated drug store of F. E. Robinson who, in addition to his pharmaceutical pursuits, was the president of the county board of education. When Darrow asked the witness if he had ever warned any teacher about the book’s evil contents, or if anyone had ever complained to him about them, the answer to the question was a drawled “No, Sir.”

When White stepped down from glory, he was followed by fourteen-year-old Howard Morgan, the son of Luke Morgan of the Dayton Bank & Trust Company, to whose house Darrow and his wife, Ruby, had fled after one night’s experience with The Mansion’s inactive plumbing. Young Howard was one of Scopes’ students. According to him, the defendant had insisted that “the earth was once a hot molten mass, too hot for plant or animal life to exist upon it; in the sea the earth cooled off; there was a little germ of one-cell organism formed and this organism kept on evolving until it got to be a pretty good-sized animal and then came on to be a land animal, and it kept on evolving, and from this was man, and that man was just another mammal.”

Morgan looked disappointed when Stewart looked over at Darrow and purred, “Your witness, Colonel.” Under the Chicagoan’s gentle questioning, the boy admitted that Scopes had never said that “a cat was the same as a man.” On the contrary, “he said that man had reasoning power; that these animals did not.” After observing that he wasn’t as sure as Scopes about that, Darrow asked the witness whether he could remember anything else of a salacious nature that the defendant had taught him. He could not.

Seventeen-year-old Harry Shelton backed up his classmate’s story. Yes, Scopes had indeed said that man was descended from a lower order of animals. But what he had learned hadn’t had any adverse effect on him. He still went to church regularly, just as he had before he was told that “all life comes from a single cell.” Darrow, who looked quite satisfied with the way things were going, asked Harry, “Did Mr. Scopes teach you that man came from the monkey?” As the boy opened his mouth to answer the question, there was a horrendous shriek from the direction of the courthouse lawn. A chimpanzee, which had been brought from New York as a publicity stunt; had just been struck by a rock propelled by the elastic band in the slingshot of a small boy who quite obviously had little respect for his ancestors. Harry Shelton’s answer to Darrow’s question was never to be recorded by the thoroughly distracted court stenographer.

It had been in F. E. Robinson’s emporium that what Scopes called “just a drugstore discussion that got past control” had started all the hullabaloo. Robinson, who presided over the county school board, had been present while Rappelyea was trying to convince Scopes to throw himself in the path of the anti-evolution law. Yes, he had heard the defendant state that he had been teaching Darwin’s theory to his biology class. In fact, John Thomas had gone even further and said that it was impossible to teach the subject from any of the available books without violating the Butler Act.

But Robinson, whose drugstore sold everything from sassafras to hickory chips, also purveyed Hunter’s Civic Biology. Darrow reminded him that he might be talking himself into a criminal prosecution but, as Stewart informed Raulston, “the law says ‘teach’, not sell.” They were still laughing at that one in the back rows when Robinson proudly admitted that he had a monopoly on the book in Dayton and that copies were supplied to him by the county library in Chattanooga. No, he hadn’t noticed “any signs of moral deterioration in the community” since he’d been selling them.

This was Tennessee’s case against John Thomas Scopes. After some pro forma motions to dismiss the indictment had been denied by the judge, Darrow called his first witness, a bespectacled gentleman who turned to be Dr. Maynard M. Metcalf, a zoologist from John Hopkins University, who described himself as an “evolutionist.” He was the first of a band of scientific witnesses whom Darrow had brought to Dayton with him to show “what evolution is ... and the interpretation of the Bible that prevails with men of intelligence who have studied it.” But none of them were ever to get to say their pieces, because Bryan, in his one speech of the trial, convinced Raulston, who was ready to meet him more than halfway, that “the Bible, the record of the Son of God, the Savior of the World, born of the Virgin Mary, crucified and risen again—that Bible is not going to be driven out of this court by experts who come hundreds of miles to testify that they can reconcile evolution with its ancestor in the jungle, with man made by God in His image and put here for His purpose as part of a divine plan.” Not very legal, perhaps, but quite persuasive.

However, Raulston did consent to the submission of affidavits by Darrow’s experts for the “information of the judge.” When Darrow asked for the rest of the day to prepare these statements, Raulston indicated that he wasn’t inclined to grant the request. “I do not understand,” Darrow barked at him, “why every request of the State and every suggestion of the prosecution should meet with an endless loss of time; and a bare suggestion of anything that is perfectly competent on our part should be immediately overruled.” Raulston, with a bland smile, expressed the hope that “you do not mean to reflect upon the court?”

DARROW: Well, your Honor has the right to hope.

RAULSTON: I have the right to do something else perhaps.

DARROW: All right, all right.

The next morning, Saturday, the 18th, the Chattanooga News prophesized that Raulston would probably cite Darrow for contempt when court reconvened after the weekend.

But the weather was much too hot for further fireworks and on Monday, Darrow, after being cited, mollified the ruffled feelings of his Honor by admitting that “I went further than I should have gone and I want to apologize to the court for it.” Raulston was more than magnanimous. “I accept Colonel Darrow’s apology,” he murmured. “I am sure his remarks were not premeditated. I am sure that if he had time to have thought and deliberated, he would not have spoken those words ... we forgive him and we forget it and we command him to go back home and learn in his heart the words of the Man who said: ‘If you thirst come unto Me and I will give thee life.’” Pyrrhus would have understood.

That afternoon, as the usual crowd of slightly more than one thousand people pushed into the courtroom after the noon recess, a worried bailiff informed Raulston that there was some danger that the building would collapse. The latter decided to transfer the trial to the courthouse lawn where an impromptu platform had been built to accomodate Bryan and the ministers who had been using their free time to put in a word for the Bible and its copyright owner. But, from the defense’s point of view, the courtroom en plein air had one drawback—there was a large sign on the courthouse wall facing the jurors which importuned them to “Read Your Bible Daily.” When Darrow suggested that a companion placard stating “Read Your Evolution” be erected alongside the offending sign, Raulston promptly decided to remove all signs. Sic transit gloria mundi.

After the furor had died down, Arthur Garfield Hays finished reading the statements which had been prepared by the scientists and clergymen Darrow had brought to Dayton, and whose testimony had been excluded by Raulston’s ruling. Seven geologists, anthropologists and zoologists as well as three Protestant ministers and a Jewish rabbi were represented as Hays, in a tired voice, tried his best to educate an increasingly exasperated Raulston. When the defense attorney had finished his readings, he offered into evidence two Bibles and sat down. Darrow whispered something in his ear, and Hays was back on his feet again. “The defense desires to call Mr. Bryan as a witness,” he announced. “We should want to take Mr. Bryan’s testimony for the purposes of our record, even if your Honor thinks it is not admissable in general, so we wish to call him now.”

Despite Bryan’s obvious discomfiture at having to take the stand, there was no escape. He was being called as an expert on the Bible, a status he had assumed before Chautauquas up and down the land, and he simply could not refuse to accept Darrow’s challenge. After gaining a few minutes to collect his thoughts by insisting that the lawyers for the defense be ordered to take the stand when he was finished, Bryan perched himself in the spindle-legged chair that passed for a witness chair. What the New York Times later described as the most amazing court scene in Anglo-Saxon history was about to be launched.

With the observation that he was sure that the witness would tell the truth, Darrow waived having him sworn. Then he got down to cases. He asked Bryan whether he had given considerable study to the Bible, and the old Democrat assured him that he had, “for about fifty years.” With slight exceptions, he was convinced that everything in the Scriptures should be taken literally. “When I read that a big fish swallowed Jonah,” he bellowed, “I believe it, and I believe in a God who can make a whale and can make a man and make them both do what he pleases. One miracle is just as easy to believe as another.”

As Darrow led his perspiring adversary through the Bible from Creation to the Battle of Jericho, many of the reporters sprawled on the benches that had been placed under the square’s maple trees remembered that he had asked many of the same questions in the pages of the Chicago Tribune two years earlier. Bryan had refused to answer them then, but he was forced to do so now. When the long day drew to a close, Bryan was a defeated and humiliated man who had left whatever reputation he had brought into Dayton among the empty pop bottles and cracker jack boxes that littered the courthouse lawn. As Will Rogers put it, “He might make Tennessee the side show of America, but he can’t make a street carnival of the whole United States.”

With Bryan committed to defending the literalness of every incredible occurrence in the Bible, Darrow’s task was a comparatively simple one. A man who believed that Joshua made the sun stand still, or that Eve was created out of Adam’s rib, or that a giant flood destroyed all life on earth, was a sitting duck for an experienced and shrewd cross-examiner. As the day wore on, it was quite apparent that Bryan’s answers were destroying him in the eyes of even his friends, and that Darrow had succeeded in turning a rout into what had all the earmarks of a shattering victory.

Bryan’s observation that he was “more interested in the Rock of Ages than the age of rocks” set the tone of the entire interrogation. For example, when Darrow took up the subject of Eve’s temptation, the witness was certain that labor pains had originated with God’s wrath at apple larceny.

Q. And for that reason, every woman born of woman who has to carry on the race, has childbirth pains because Eve tempted Adam in the Garden of Eden?

A. I will believe just what the Bible says. I ask you to put that in the language of the Bible, for I prefer that to your language. Read the Bible and I will answer.

Q. All right, I will do that: “‘And I will put enmity between thee and the woman’”—that is referring to the serpent?

A. The serpent.

Q. “‘... and between thy seed and her seed; it shall bruise thy head, and thou shalt bruise his heel.’ Unto the woman he said, ‘I will greatly multiply thy sorrow and thy conception; in sorrow thou shalt bring forth children; and thy desire shall be to thy husband and he shall rule over thee.’” That is right, is it?

A. I accept it as it is.

Q. And you believe that came about because Eve tempted Adam to eat the fruit?

A. Just as it says.

As for the serpent, he had to “crawl upon his belly” for his nefarious part in the episode.

Q. Do you think that is why the serpent is compelled to crawl on his belly?

A. I believe that.

Q. Have you any idea how the snake went before that time?

A. No, sir.

Q. Do you know whether he walked on his tail or not?

A. No, sir. I have no way to know.

The laughter that accompanied Darrow’s last question about the earthbound snake marked the beginning of the end. A few minutes earlier Bryan had admitted that the six days of Creation did not amount to “six days of twenty-four hours.” His impression was that “they were periods” but he had no idea as to their length. The defender of the Word, who had refused to question Joshua’s sun-stopping maneuver or Jonah’s sojourn in the alimentary canal of a whale, knew that it took more than a week to build a makeshift barn, and somehow couldn’t swallow a six-day Creation. But as far as the fundamentalists on the courthouse lawn were concerned, he had betrayed them all. When he walked home later that afternoon, only one man accompanied him. The rest of the crowd followed Darrow all the way to the Morgan house.

The next morning dawned cool and rainy, and Raulston ordered the circus back into the courthouse, cracks or not. After expunging Bryan’s testimony, because he felt it could “shed no light upon any issues that will be pending before the higher courts,” he ordered the jury, which had been cooling its collective heels for more than a week just inside loudspeaker range, to get back to work. Darrow said that he thought it would save a great deal of time if the judge would instruct it to bring back a verdict of guilty so that the case could “get to a higher court.” At 11:14 on the morning of Wednesday, July 22nd, Captain Thompson led his colleagues down the stairs to the courthouse lawn where, after some eight minutes of palavar and one ballot, they found Scopes guilty of violating the Butler Act. As to the fine, they were willing to leave that to Raulston, who had told them in advance that he intended to fix it at one hundred dollars, the minimum under the statute.

The judge was as good as his word. He asked Scopes to stand up and informed him that he was indebted to the State of Tennessee in the sum of one hundred singles. When Neal reminded Raulston that he had forgotten to ask the defendant whether he had anything to say before being sentenced, the judge was all apologies. The thin, balding teacher, who had been silent for twelve sweltering days, didn’t take very long to say what he had to say. “Your Honor, I feel that I have been convicted of violating an unjust statute. I will continue in the future, as I have in the past, to oppose the law in any way I can. Any other action would be in violation of my ideal of academic freedom—that is, to teach the truth—as guaranteed in our constitution, of personal and religious freedom. I think the fine is unjust.”

Not to be outdone, his Honor, after imposing the fine again, told Scopes that “it sometimes takes courage to search diligently for a truth that may destroy our preconceived notions and ideas. It sometimes takes courage to declare a truth or stand for an act that is in contravention to the public sentiment. A man who is big enough to search for the truth and find it and declare it in the face of all opposition is a big man.” While Darrow, Hays and Malone were digesting that one, the Baltimore Sun posted the five-hundred-dollar bond required as a condition of appeal and everyone began to congratulate everyone else. After Hays had promised to send the judge a copy of the Origin of Species, Raulston said, “We will adjourn and Brother Jones will pronounce the benediction.” The first stage of the State of Tennessee versus John Thomas Scopes was over.

For weeks before the trial, Bryan had been busy writing an anti-evolution speech which he looked forward to delivering in the courtroom. But Darrow’s carefully planned capitulation on the trial’s last day had deprived him of his national forum. Such a speech, however, could not remain locked up in the frustrated soul of a veteran Chautauquian who was not in the habit of keeping his thoughts to himself. After trying excerpts out on roadside audiences in Jasper and Winchester, Tennessee, he persuaded the Chattanooga News to publish it. But he was never to see it in print. On Sunday, July 26th, he died of what Darrow, with more candor than good taste, termed “indigestion caused by over-eating.” As for the great oration, Mrs. Bryan released it for general publication two days after her husband’s death. It went largely unnoticed.

Everything else was anti-climatic. A year and a half later, the Tennessee Supreme Court sustained the constitutionality of the Butler Act. But its four members reversed Scopes’ conviction because Raulston had violated the state constitution when he, and not the jury, had fixed the fine. Unless the prosecution insisted on bringing Scopes to trial again, the case was cold turkey, and Chief Justice Green did his best to keep it that way. “We see nothing to be gained,” he urged, “by prolonging the life of this bizarre case.” The Attorney General took the rather broad hint Green had dropped, and immediately nolle prossed the indictment.

Although the school board offered to reinstate Scopes, he decided to take advantage of his notoriety and accepted a graduate scholarship. As for the Butler Act, it was never to be enforced again—in Tennessee or anywhere else for that matter. In 1951, a bill proposing its repeal was introduced by, of all people, Rhea County’s representative in the Tennessee Legislature, but it was soundly defeated. Another attempt, ten years later, was voted down, 69 to 17, in the House of Representatives. Today, it still lurks in the statute books, a remembrance of things past. But as far as the “victorious defeat” that clipped its wings was concerned, Darrow never grew tired of saying that “I believed that the cause was worth while, and was always glad that I helped.”

6

Their Skin was Black

The State of Alabama
versus

Haywood Patterson

In 1931, Huntsville was a rickety industrial town in the northern reaches of Alabama. Most of its 30,000 inhabitants depended on one or another of the seven mills that were just beginning to be hit by the depression that had already paralyzed other parts of the country. By March, Margaret Mill, for example, had cut its work week to two days and its average daily wage to $1.20.

One of Margaret’s employees was a seventeen-year-old girl named Ruby Bates whose nomadic family lived in a shack on Depot Street, Huntsville’s Negro section. The only whites on the block, the Bateses had migrated to Huntsville from the cotton fields of central Alabama. Sharecropping had not brought in enough to feed five mouths and, after Mr. Bates had deserted his brood and left for parts unknown, Ruby and her mother decided to move into a town where both women could work at one of the mills. First it was Athens and then Huntsville.

Monday, March 23, 1931, was a sunny day on the cool side. Ruby, who hadn’t worked for more than a week, was standing near her front window, watching her brother and sister playing with the Negro children on Depot Street, when Victoria Price, a Margaret co-worker, strolled up the front walk. Twenty-five-year-old Victoria, who lived with her mother on Arms Street, supplemented her meager mill earnings with some slack-time prostitution. By 1931, she had a sizable arrest record even though Walter Sanders, Huntsville’s deputy sheriff, described her as “a quiet prostitute [who] don’t go rarin’ around cuttin’ up in public.”

Victoria had an idea. Jack Tiller, her current boy friend, had run into Lester Carter who had just been released from a Huntsville chain gang. The two men had suggested that Victoria find a girl for Lester and then they would shake the Alabama dust from their feet. Ruby was more than willing and, after packing her few belongings, hurried over to the Price’s two-room shack where Tiller and Carter were waiting. Both girls had on overalls, under which they were wearing their entire wardrobes. The two couples spent the night in a nearby hobo jungle where, between some semi-public lovemaking, they made plans to go West and “hustle the towns.”

But, in the cold light of dawn, Tiller suddenly realized that he had a wife who might not take too kindly to his proposed cross-country tour with Victoria, and decided to give up the venture and go home. Carter and the girls jumped a freight for Chattanooga, almost one hundred miles away, where they bedded down in some woods just outside of the city. There, they were joined by a street poet named Orville Gilley, otherwise known as “Carolina Slim,” who was swiftly enlisted as a replacement for Tiller. At eleven o’clock the next morning, the quartet boarded a forty-car freight which was bound for Memphis. They settled down in an open gondola car which was almost filled to the gunwales with crushed rock. Five other white boys were sitting at the opposite end of the car.

The freight, which was following the tracks of the Southern Railroad, crossed into Alabama at Bridgeport, and passed through Stevenson, Fackler, Hollywood, Scottsboro, Lim Rock and Woodville before it came to a stop at Paint Rock, less than thirty miles east of Huntsville. Shortly after Gilley, Carter and the two girls had boarded the gondola, the train stopped for water at a siding in Stevenson. Seconds later, a dozen or so colored boys climbed into the gondola from an adjoining box car. A fight immediately ensued between the invaders and the seven white boys in the gondola, the net result of which was the forcible eviction of all the whites with the exception of Gilley.

The boys who had been thrown off the slowly moving train limped back into Stevenson where they reported the incident to the stationmaster. He telephoned ahead to Paint Rock, some thirty-eight miles west of Stevenson, and, when the train pulled into that northern Alabama hamlet at 2:30 p.m., a posse of seventy-five armed white men was waiting for it. Nine Negro boys between thirteen and twenty years of age, as well as Ruby Bates, Victoria Price and Orville Gilley, were removed from the gondola. The girls were taken to a doctor’s office for a physical examination while the Negroes were locked up in Scottsboro’s tiny jailhouse. When an ugly crowd began to gather, Sheriff M. L. Wann asked Governor B. M. Miller to send in the National Guard. The troops arrived at four the next morning and escorted the nine suspects to Gadsden, Alabama. Four days later, they were returned to Scottsboro where they were all indicted on the charge that they “forcibly ravished ... a woman against the peace and dignity of the State of Alabama.”

Their trials started on Monday, April 6, 1931, in the Jackson County Circuit Court. H. G. Bailey, the State Solicitor, asked Judge Alf E. Hawkins to sever the trials, a request that was promptly granted. Charlie Weems and Clarence Norris, who were twenty and nineteen respectively, were first tried; their trial was followed by that of eighteen-year-old Haywood Patterson. The third involved five boys—Andy Wright (19), Willie Roberson (17), Olen Montgomery (17), Ozie Powell (16) and Eugene Williams (15). The youngest defendant, thirteen-year-old Roy Wright, was to stand trial by himself.

The boys’ pedigrees were much the same. They were all destitute, illiterate and unskilled southern Negroes who came from Tennessee and Georgia. Roberson was suffering from both gonorrhea and syphilis while Montgomery was practically blind. According to Patterson, “All nine of us were riding the freight for the same reason, to go somewhere and find work.” These were the “nine black fiends” who, according to the Jackson County Sentinel of March 26, 1931, had “committed [the] revolting crime.”

When the trials started, none of the defendants was in any position to retain an attorney. Judge Hawkins had appointed “all members of the bar for the purpose of arraigning the defendants, and then, of course, I anticipated them to continue to help if no counsel appears.” A Stephen W. Roddy, a Chattanooga lawyer, who had been approached by members of the National Association for the Advancement of Colored People, told Hawkins that, although he had not been paid and would not “appear as counsel,” he was willing to do what he could on the defendants’ behalf. He was joined by Milo Moody, a member of the Scottsboro bar, who expressed his willingness “to help Mr. Roddy in anything I can do about it under the circumstances.” The judge was quite obviously relieved that the niceties of justice would be scrupulously observed.

Roddy’s first step was to present a petition signed with nine X’s asking for a change of venue. In view of the hostile crowd which filled the courthouse lawn, he insisted that a fair trial was impossible in Scottsboro. Bailey made it quite clear that he considered Roddy’s suggestion impertinent and called Major Joe Starnes, the commanding officer of the National Guard, to rebut it. Starnes assured the court that “the crowd here was here out of curiosity and not as a hostile demonstration toward these defendants.” The major’s opinion was enough for Hawkins and he overruled Roddy’s motion.

The four trials were over by Thursday morning. On Friday, eight of the Negroes were sentenced to die in the Kilby Prison electric chair early the following July. Because one juror refused to vote for Roy Wright’s execution, his trial resulted in a hung jury. But eight out of nine was a good batting average in anybody’s league and the crowd outside the courthouse, which sang “There’ll be a Hot Time in the Old Town Tonight” as each guilty verdict was announced, was more than satisfied with the week’s work.

In all four trials, Victoria Price and Ruby Bates were the witnesses-in-chief for the prosecution. Their stories left little to be desired as far as the State Solicitor was concerned. After the Negroes had invaded the gondola car, they had cowed the white boys by “telling them that they would kill them, that it was their car and we were their women from now on.” Victoria accused Norris of having “sexual intercourse with me” while Weems threatened her with a .45 pistol and a knife. Norris had “pulled my overalls over me” and “the little one, the smallest one, was holding my legs.” To add insult to injury, Norris had not only raped her but stolen her knife, $1.50 of her money, and a pocket handkerchief. Twelve Negroes had entered the gondola car but “three got off.” She denied that she was travelling with any of the seven white boys who had been involved in the fight at Stevenson. In all, she and Ruby had each been raped by six boys but “three of hers got away.”

Ruby said that the Negroes had ordered the white boys in the gondola car “to unload” before the rapes took place. Then, while some of the defendants threatened her with knives and pistols, she had been thrown to the gravel-covered floor of the car and attacked. “There were three Negroes to each girl,” she told the spellbound jury, “one for intercourse, one for holding the knife and one for holding the pistol. They never did remove the knife or pistol.”

Two physicians—Drs. R. R. Bridges and M. H. Lynch—had examined both girls a little more than an hour after they had been removed from the train. Although he had found no “recent lacerations” on either woman, Bridges said that he had “found semen in the vagina of each one.” Two years later, he was to state that “the semen did not move and we don’t swear as to whether it is dead or alive unless we see it move.” No lacerations, tears or bruises were found in the genital region of either girl. Both Victoria and Ruby had seemed quite calm during Bridge’s first examination but when he visited them in jail the next day they were somewhat hysterical. Lynch, who was the head of the Jackson County Health Department, confirmed his colleague’s observations.

Hawkins, who was determined to get the trials over with as soon as possible, refused to let Roddy and Moody do more than present a token defense. Nowhere was this more apparent than in their cross-examination of the two physicians. When they tried to show that Victoria and Ruby were far from virgins, the judge said such evidence was irrelevant. While Dr. Bridges was on the stand, Roddy asked him whether either girl showed any indications of gonorrhea or syphilis. Hawkins refused to let the physician answer the question despite the fact that Willie Roberson was suffering from both diseases. Although Bridges confirmed that Roberson had “a bad case of it,” he was sure that “it is possible for him to have intercourse.”

Lynch and Bridges were followed by a number of Stevenson residents who had seen the fight on the gondola car. Luther Morris had been in a barn loft, some thirty yards away from the Southern roadbed, when the train passed. He had seen a “bunch of Negroes put off five white men and take charge of two white girls. The two white girls were doing their best to jump and the Negroes got the two white girls and they were pulled back down in the car.” Two of the boys who had been thrown off the train by the Negroes passed by Morris’s barn on their way to Stevenson but were too stunned to talk to him. “They just said: ‘I am dying’ ... they were badly hurt.”

Orry Robbins had been standing near a woodpile, a hundred yards away from the tracks, when the train passed. He said that “I saw two girls and these colored people ... one of the colored men grabbed a woman and threw her down.” T. L. Dobbins, who was only a few feet away from the train, had observed the scuffling in the gondola car but, as far as the participants were concerned, he “could not tell whether they were white or black.” Lee Adams, who was two hundred yards away, had watched “a bunch of people in a car ... striking and about that time I saw someone go over the top of the car.” Later, he saw two of the boys who had been thrown off the train running toward Stevenson and “the blood was running down their faces.” By the time the train passed Sam Mitchell, it was going between thirty and forty miles per hour. As for the fight, “we see’d them wrestlin’, ’peared like. That’s all I seen; the train was going pretty fast.”

When the train stopped at Paint Rock, the armed posse was waiting for it. Bailey used some of its members to add what little they could to the case against the defendants. Tom Taylor Rousseau was certain that Victoria “was unconscious” when “they toted her off the train. She had her eyes closed and was lying over this way ... she was in no condition to walk.” Victoria had previously testified that “I was unconscious after I got off the train ... I became unconscious when I fell off the stirrup on the side of the gondola.” T. M. Latham, a deputy sheriff, testified that the girl “could not walk” when he first saw her. Jim Broadway said, “The Bates girl seemed to be in fairly good shape but the other could not hardly talk and couldn’t walk.”

Both women told Latham that “we have been mistreated” but Broadway, who was only a few feet away, said, “I did not hear Victoria Price make no complaint, either to me or to anyone else about the treatment they received at the hands of these defendants over there.” Victoria herself had admitted that the defendants’ arrest had not been “on account of any complaint of mine.” Lastly, Jackson County Deputy Sheriff Arthur W. Woodall testified that he had found Victoria’s pen knife in Norris’ pocket.

Orville Gilley, who was the only white boy who had not been thrown off the train as it pulled out of Stevenson, was used in the third trial. Outside of the girls, he was the sole white eyewitness to what had occurred in the gondola car. Yet Bailey used him only for the limited purpose of identifying five of the defendants as having been present in the car. “I saw those five in the car ... every one of those five in the gondola.”

Q. Were the girls in there?

A. Yes, sir.

Evidently, Sam Gilley’s son had been singularly unconcerned with what was happening to his traveling companions for he made no attempt either to notify the engineer or the conductor or to leave the train.

When the state rested, all of the defendants took the stand. Weems accused Haywood Patterson of forcing him, at the point of a pistol, to fight the white boys on the train. But he insisted that he “didn’t see the girls. I never did see the girls.... If anybody had anything to do with the girls, I don’t know nothing about it.” Clarence Norris on the other hand, had “seen every one of them have something to do with those girls, all eight of them, but I didn’t.” According to him, Patterson had said that “he was going over there to run the white boys off and going to have something to do with them.” Patterson swore that he had been sitting on the box car behind the gondola, from which vantage point he had seen Weems and several others rape Victoria. “But I had nothing to do with those girls,” he insisted. Roy Wright also said that “there was nine Negroes down there with the girls and all had intercourse with them ... I saw that with my own eyes.”

The other defendants insisted that they were completely innocent. They denied that they had seen the girls until the freight stopped at Paint Rock. Ozie Powell “never did see the girls” from the time he boarded the freight at Chattanooga until it was stopped at Paint Rock. Olen Montgomery, who claimed that he had been “back in the seventh car from the end of the train ... by my lonely ... first saw them at Paint Rock,” and Eugene Williams “did not see the girls at all until we got to Paint Rock.” Andy Wright swore that “I did not have intercourse with a woman on that train” while Willie Roberson testified that, because of his venereal diseases, “I am not able to have sexual intercourse.”

After the eight convicted defendants had been sent to the Kilby Prison death row, Roddy filed four motions for new trials. Among other grounds, he urged that the defendants were not given sufficient time in which to prepare their defense and that the atmosphere in Scottsboro was so hostile that a fair trial was impossible. On June 22nd, Hawkins denied all the motions and, in Kilby’s Cell 222, Haywood Patterson “was busy living from minute to minute” while he and the Scottsboro Boys, as they came to be called, were waiting for their July 10th date with current supplied free of charge by the Alabama Light and Power Company.

But July 10th came and went and the only man executed at Kilby that night was one Will Stokes, an ax-murderer, who went to his death a few minutes after midnight. An appeal to the Alabama Supreme Court from Judge Hawkin’s refusal to grant new trials had resulted in a stay of execution for Patterson & Company. It wasn’t until the following Spring that the judgments were affirmed and seven of the defendants were re-sentenced to die on May 13, 1932. Because Eugene Williams was under sixteen, Alabama law required that he be tried as a juvenile delinquent and his conviction was reversed on that ground alone.

When the appeals were argued before the Alabama Supreme Court, neither Roddy’s nor Moody’s names appeared on the briefs for the defendants. George W. Chamlee, Senior, and his son, George, Junior, two Chattanooga lawyers, now represented the Scottsboro boys. They had been selected by the International Defense League, a Communist affiliate devoted to defending any member of the “working class” who ran afoul of “capitalist justice.” Through Joseph R. Brodsky, its general counsel, it had financed the appeals to Alabama’s highest court.

On April 9, 1932, the judges refused to rehear the appeals and it looked very much as if the year-long fight to save eight nondescript lives was about over. But the I.L.D. was not one to leave any stone unturned (or unhurled) and it asked the United States Supreme Court to intervene. Early in October, Walter H. Pollak, another I.L.D. attorney, argued in Washington that the defendants had not received a fair and impartial trial, had been denied the right of counsel and sufficient time in which to prepare their defense, and had been tried before juries from which qualified Negroes were deliberately excluded.

On November 7, 1932, seven of the nine justices reversed the convictions and ordered new trials for all the defendants. In their opinion, the Scottsboro Boys had not been given an opportunity to secure counsel of their own choice. “Not only was that not done here, but such designation of counsel as was attempted was either so indefinite or too close upon the trial as to amount to a denial of effective and substantial aid.... We hold that the defendants were not accorded the right of counsel in any substantial sense. To decide otherwise, would simply be to ignore actualities.”

After the first trials, Ruby Bates had returned to Depot Street. On January 5, 1933, she sat down at the kitchen table and wrote a letter to a “Dearest Earl,” evidently a successor in interest to Lester Carter. In it, she told him that “those Negroes did not touch me or those white boys ... i know it was wrong too let those Negroes die on account of me i hope you will believe my statement because it is the gods truth ... i wish those Negroes are not Burnt on account of me.” The messenger to whom she gave the letter never delivered it. Ten minutes after he started out, he was in the Huntsville lockup, accused of starting a street fight. The police turned the letter over to the prosecution and it took the I.L.D. until the end of January to get a court order permitting its attorneys to photostat it.

On March 6th, a motion for a change of venue was granted by Judge Hawkins and Decatur was selected as the mise en scène in a case that was now as well known in Berlin and Paris as it was in Birmingham and Memphis. A week later, William Patterson, the I.L.D.’s executive secretary, persuaded Samuel S. Leibowitz, who, at thirty-nine, was New York’s best known criminal lawyer, to come south and see what he could do to convince twelve Morgan County jurymen to give “this poor scrap of colored humanity a fair, square deal....” Act II was about to begin.

In Kilby’s death row, Guard L. J. Burrs told the defendants to get ready for a trip to town. On the first day of spring, they were taken to the Jefferson County Jail in Birmingham to await their second trials. Six days later, Patterson’s began in Decatur’s white-columned courthouse before Judge James E. Horton who, according to the defendant, “looked like pictures of Abe Lincoln.” This was to be no one-day outing. To counteract Leibowitz, Thomas Knight, Jr., Alabama’s Attorney General, with State Solicitor Bailey and Morgan County Circuit Solicitor Wade Wright at his elbow, entered the lists for Alabama. On March 27th, Horton granted the State’s motion to sever Patterson’s case from those of the other defendants and, on the following morning, his trial was off and running.

Leibowitz’s opening gambit was to move to dismiss the indictment because Negroes had been systematically excluded from the grand jury rolls of Jackson County. According to Section 8603 of the Alabama Code, all male citizens between the ages of twenty-one and sixty-five who could read English and had not been convicted of any offense involving moral turpitude could serve on grand and petit juries if they were “generally reputed to be honest and intelligent men, and are esteemed in the community for their integrity, good character and sound judgment.” Literacy could be waived if the prospective juror was a “freeholder or householder.”

As far as grand juries were concerned, evidently not one of the more than six hundred adult male Negroes in Jackson County had ever met the requirements of Section 8603. Jefferson E. Moody, a member of the Jury Commission from 1930 to 1931, couldn’t remember seeing any Negroes on the list. C. A. Wann, who had been Clerk of the Circuit Court for five years, said, “I do not know of one single instance where a Negro had served on a grand jury in Jackson County, in all my experience.” Hamlin Caldwell, a court reporter for the Ninth Judicial Circuit, who hadn’t missed a session in Jackson County for twenty-four years, testified that he had “never seen a colored man on the grand jury....” J. S. Benson was the editor of Progressive Age, a Scottsboro newspaper. Convinced that no Negro could possibly qualify as a grand juror (“They all steal”), he had “never known of a single instance where any Negroes were put on the jury roll.”

Then the defense called a number of Jackson County Negroes who seemed to meet the standards of 8603. John Sandford, a fifty-year-old plasterer, who could read and write and had no criminal record, swore that he had “never been put on a jury roll and have never been examined by any Jury Commission as to my qualifications....” He said that he knew a great many eligible Negroes in the county who had also never been called for jury service. Mark Taylor, who was a member of the District No. 88 School Board, and Travis Mosely, who owned real property in Scottsboro, told similar stories. Finally, after Leibowitz had paraded five other seemingly qualified Negroes to the stand, Horton called it quits and denied the defense motion to dismiss the indictment.

Then Leibowitz turned to another track. Anticipating a second conviction, he decided to lay a more substantial foundation for an eventual return to Washington and attacked the Morgan County petit jury system as well. First, he called a great many Decatur Negroes who clearly met all the statutory requirements to sit on juries. Among others, there were Dr. Frank Sykes, a dentist, Dr. N. E. Cashin, a physician, Reverend L. B. Womack, the pastor of the First Missionary Baptist Church, and J. E. Pickett, a teacher in the Negro High School for more than eighteen years. He followed them with Arthur J. Tidwell, a member of the Jury Board of the Morgan County, who stated that “I have never seen a Negro serve on a jury, never heard of one.” Neither had his two fellow commissioners.

When Leibowitz threatened to call every person whose name appeared on the jury roll “even if it breaks the state” and requested subpoenas for almost four hundred other Morgan County Negroes, Judge Horton gave up the ghost and conceded that it looked as if Alabama deliberately excluded Negroes from its juries. With these preliminaries out of the way, an all-white jury was impaneled and Victoria Price, “in dress-up clothes,” sashayed up to the witness stand. In twelve minutes, she repeated much the same story she had told in Scottsboro, a year back.

Victoria proved to be more than a match for Leibowitz. When he pointed to a thirty-two-foot model of the freight train which he had brought with him from New York and asked her to point out the gondola car, she spiked his guns by mumbling, “The gondola I was in was much bigger than that thing.” Since she had sworn at Scottsboro that she was twenty-one when the defendants raped her, he asked her whether it wasn’t true that she was actually four years older. “I ain’t that educated that I can figure it out.” When he accused her of being “a little bit of an actress,” she snapped back, “You’re a pretty good actor yourself.”

As her cross-examination developed, it was apparent that the defense was staking everything on getting Victoria to admit that she had invented the rape story in order to keep from being arrested for traveling across the Alabama-Tennessee line with Carter and Gilley. This, the witness passed off as “some of that Ruby Bates dope.” After Ruby’s letter to “Dearest Earl” had been intercepted, it was obvious to both prosecution and defense alike that the solid front presented by the Gondola Girls in the first trials was about to split wide open. As the trial unfolded, Knight did his best to prepare the jury for the anticipated appearance of Ruby, who had been missing since early 1933, as a witness for Patterson.

Leibowitz provoked Victoria into admitting that she had been married twice before, first to a Henry Presley and then to one Ennis McClendon. However, she insisted on calling herself Mrs. Price for reasons best known to herself. When Leibowitz suggested that the presence of semen in her vagina might have been the result of some shenanigans in a hobo jungle just outside of Chattanooga the night before the freight ride, she screamed, “You can’t prove it!” But, in the main, Knight was successful in blocking most questions concerning Victoria’s previous condition of rectitude or her sexual activities on the nights of March 23rd and 24th.

After Dr. Bridges, Lee Adams, Orry Dobbins and Tom Taylor Rousseau had repeated their 1931 stories, Knight called Art Woodall who had previously testified that he had found Victoria’s pen knife in Norris’s pocket. Now, he insisted that he couldn’t remember which Negro had the knife, but whoever it was had told him that he had taken it “from one of the white girls.” When it was shown to Mrs. Price, she immediately identified it as hers and swore that it had been held against her throat during the rapes. This testimony so delighted the Attorney General that he couldn’t refrain from applauding the witness and had to be taken from the courtroom to regain his composure.

All of the defendants except Norris, Weems and Roy Wright took the stand. Knight threw their previous admissions at them but each one now insisted that, not only had he not attacked any white girls, but that he had not seen any other defendant do so. Any incriminating statements they had made at Scottsboro had been beaten or extorted from them. As Patterson put it, “We was scared and I don’t know what I said. They told me if we didn’t confess, they’d kill us, give us to the mob outside.” They were followed by Dr. E. E. Reisman, a Chattanooga gynecologist, who said that much of Victoria’s testimony about her physical condition did not coincide with what one would expect to see in a woman who had been violently raped six times. Dr. Bridges had previously admitted that the most he could “say about the whole case is that both of these women showed that they had intercourse.”

Lester Carter said he had first met Victoria when they both were inmates of the Huntsville Jail. He confirmed that he and Tiller had spent two nights with the girls in a hobo jungle and that he had boarded the freight with them on the morning of March 25th. He and the other six boys who had been in the gondola had been held in custody in Scottsboro during the first trials but had never been called as witnesses by the prosecution.

Then the bailiff called out the name of Ruby Bates. Shortly after the interception of her “Dearest Earl” letter, the I.L.D. had sent her to New York City for safekeeping. There she had stayed with Dr. Harry Emerson Fosdick, who had urged her to return to Alabama and testify in Patterson’s behalf. Once the hubbub in the courthouse had died down, Leibowitz went straight to the point.

Q. You testified at each of the trials at Scottsboro, didn’t you?

A. Yes.

Q. You said you saw six Negroes rape Victoria Price and six raped you, didn’t you?

A. Yes, but I was excited when I told it.

Q. You told at Scottsboro that one held a knife at your throat, and what happened to you was just the same that happened to Victoria Price. Did someone tell you to say that?

A. Victoria Price told me to say that. I said it like she told me to.

Q. Did she say what would happen if you didn’t do as she told you to?

A. Yes, she said we might have to lay out a sentence in jail.

She freely admitted that she had lied at the first trials because “Victoria ... said we might have to stay in jail if we didn’t frame a story for crossing the state line with men ... every time she said ‘rape’ I did not know what rape was.”

After the prosecution harangued the twelve Sand Mountain farmers in the jury box with warnings about “justice ... bought and sold in Alabama with Jew money from New York,” they retired at 12:45 p.m. on April 9, 1933. Twenty-two hours later their foreman handed a piece of paper up to Judge Horton. On it, in large, laboriously printed letters, was Patterson’s death warrant. “We find the defendant guilty as charged and fix the punishment at death in the electric chair.” One week later, Horton set June 16th as execution day.

Patterson was returned to the Jefferson County Jail pending a decision by Judge Horton on a motion filed by Brodsky on April 16th asking for a new trial because the conviction was against the weight of the evidence. In the interim, Knight prepared to try the case of Charlie Weems and asked Horton to call it for trial. But the judge refused to do so, feeling as he did that statements made by both Leibowitz and Knight had contributed to the “already heated atmosphere which surrounds this case.” Back in New York, Leibowitz was referring to the jury as “those bigots whose mouths are slits in their faces, whose eyes popped out at you like frogs, whose chins dripped tobacco juice, bewhiskered and filthy....” Knight was no less effusive in voicing his opinion of “Jew justice.” Accordingly, Horton decided to adjourn Weems’ trial “until such time when in [his] judgment a fair and impartial trial may be had.”

But the biggest surprise of all was yet to come. On June 22nd, Horton announced that he had decided to grant Brodsky’s routine motion for a new trial. Not only did he disbelieve Victoria Price’s testimony, but he felt that the other evidence in the case “preponderates in favor of the defendant.” His 108-page opinion (which was to cost him his job at the next November elections) clearly indicated that he had not believed a word that Victoria had said. “The conclusion becomes clearer and clearer,” he wrote, “that this woman was not forced into intercourse with all of these Negroes upon that train, but that her condition was clearly due to the intercourse that she had had on the night previous to this time.”

On November 20, 1933, Patterson went back to Decatur for his third trial. This time the judge was William Washington Callahan, who, according to Patterson, was “the toughest, most freckle-faced, baldheaded man I was ever up against.” After Leibowitz tried to show that seven Negro names now found on the jury roll had been forged, the principal actors went through their dreary lines again and, on December 1st, Patterson was convicted for the third time. When Callahan imposed the death sentence, he forgot to include the customary prayer for mercy. Perhaps even God was tired of re-runs.

A week later, Norris was also convicted and the two men were sent back to Kilby’s death house. On June 28, 1934, Alabama’s highest court affirmed the convictions and Leibowitz and Pollak promptly appealed to the United States Supreme Court. On April 1, 1935, Chief Justice Charles Evans Hughes announced that both convictions had been reversed because Negroes had been barred from grand and petit jury duty in Jackson and Morgan Counties. The immediate result was that the Jackson County Grand Jury returned new indictments for rape against all nine boys. But something new had been added: for the first time in as far back as Alabamans cared to remember, a Negro—one Creed Conyer—sat on a grand jury.

Haywood Patterson’s fourth trial began on January 20th, 1936, before Judge Callahan again. The Scottsboro Defense Committee, which was a composite of all the organizations which had been involved in the case, was now running operations and Leibowitz took the long trek south again. But the years didn’t seem to make much difference as far as Morgan County juries were concerned and Patterson was convicted once more. This time he was sentenced to seventy-five years in prison. After the Alabama Supreme Court affirmed his conviction, the ninth jury to listen to Victoria’s tale of woe found Norris guilty and he was sentenced to death. Andy Wright was then sentenced to ninety-nine and Charlie Weems to seventy-five years. Ozie Powell pleaded guilty to assaulting a deputy sheriff and was given twenty years in state prison.

On July 24, 1937, after Weems and Powell were sentenced, “the Scottsboro prosecution staff” announced that the charges against Roy Wright, Olen Montgomery, Eugene Williams and Willie Roberson were being dropped. “... after careful examination of the testimony, every lawyer connected with the prosecution is convinced that the defendants Willie Roberson and Olen Montgomery are not guilty.” As for Roy Wright and Eugene Williams, “After careful examination of this crime one of these juveniles was 12 years old and the other one was 13 ... the ends of justice would be met at this time by releasing [them] on condition that they leave the state, never to return.”

Negotiations for the release of the remaining five went on during the rest of 1937. On December 21st, Governor Bibb Graves told three members of the Scottsboro Defense Committee that he agreed that, if four of the defendants were not guilty, the remaining five were equally innocent. “The position of the State is untenable, with half out and half in on the same charges and evidence ...” he told them. “When the cases come before me, I intend to act promptly.” After ten months of technicalities, Graves agreed to release all the imprisoned defendants, with the exception of Ozie Powell, to the Defense Committee on Monday, October 31, 1938. However, on October 29th, he wired the Committee that he was forced to postpone their release.

It was not until January 8, 1944, that Alabama decided to open the gates of Kilby Prison to Andy Wright and Clarence Norris. A few months later, Charlie Weems followed them through “the little green gate” to the outside world. Ozie Powell was paroled on June 16, 1946 and, two years later, Patterson escaped from prison and fled to Michigan where Governor Mennen Williams refused extradition. He died of cancer on August 22, 1952 in a Michigan prison where he was serving a term for manslaughter. Although Norris was picked up in 1944 as a parole violator, he was finally released on September 26, 1946. Andy Wright suffered the same fate in 1946 but gained his freedom a year later and was last heard of in 1954 when he was picked up in Albany, N. Y., for slashing his wife with a butcher knife.

Perhaps the saddest episode of all occurred on August 16, 1959, when Roy Wright, the youngest of the Scottsboro Boys, shot and killed his wife in New York City because he thought that she had been unfaithful to him. He then committed suicide and was found dead on the floor of his Harlem apartment with an open Bible by his side. According to Mrs. Bill (Bojangles) Robinson, who, with her husband, had raised him after Leibowitz had brought him north, “he made it a point through his life since he came here to keep good company and to keep away from anything that might get him into trouble. He didn’t want his background on the Scottsboro thing hashed over again.”

7

A Traitor from Harvard

The United States of America
versus

Alger Hiss

A few minutes after eleven o’clock on the morning of Tuesday, August 3, 1948, a portly little man walked slowly to the front of the Ways and Means Committee Room in which the House Committee on Un-American Activities was holding an open session. After he had been sworn, he sat down gingerly in a wooden chair that was perched directly in front of a raised platform behind which acting Chairman Karl Mundt and five of his colleagues were ensconced. Robert Stripling, the Committee’s counsel, began the hearing.

Q. Will you state your full name?

A. My name is David Whittaker Chambers.

Q. Where and when were you born?

A. I was born April 1, 1901, in Philadelphia.

Q. How long have you been associated with Time Magazine?

A. Nine years.

Q. Prior to that time, what was your occupation?

A. I was a member of the Communist Party and a paid functionary of the party.

The witness asked if he might read a prepared statement. In a voice that was barely audible at the press table, he told of his fifteen years’ service as a Soviet espionage agent. In 1939, two years after he said that he had “repudiated Marx’ doctrines and Lenin’s tactics,” he had gone to Washington to report what he knew “about the infiltration of the United States Government by Communists.” At that time, he had told Assistant Secretary of State Adolph A. Berle, Jr., that there was an underground Communist movement in the government. “The head of the underground group at the time I knew it was Nathan Witt, an attorney for the National Labor Relations Board. Later, John Abt became the leader. Lee Pressman was also a member of this group, as was Alger Hiss, who, as a member of the State Department, later organized the conferences at Dumbarton Oaks, San Francisco, and the United States side of the Yalta Conference.”

In New York City, Alger Hiss, who was in the middle of his second year as the president of the Carnegie Endowment for International Peace, had just returned from a month’s vacation in Vermont. As soon as he heard of Chambers’ charges, he sent a telegram to Chairman Mundt in which he stated, “I do not know Mr. Chambers and insofar as I am aware have never laid eyes on him.” He requested permission to “appear before your Committee to make these statements formally and under oath.” Hiss suggested Thursday, August 5th, and hoped that “that will be a convenient time from the Committee’s point of view for me to appear.” Mundt immediately wired back that it was.

On Thursday morning, Hiss had his chance. In the large Caucus Room in the Old House Office Building, he told the Committee that he had never heard of Whittaker Chambers until 1947 “when two representatives of the Federal Bureau of Investigation had asked me if I knew him.... I said I did not know Chambers. So far as I know, I have never laid eyes on him, and I should like to have the opportunity to do so.” As far as Chambers’ accusations were concerned, they were all “complete fabrications.” The witness was willing to let his Government service speak for itself.

On Tuesday, Chambers had testified that, before he had broken with the underground, he had tried to persuade Alger Hiss to do the same. In a tearful scene at the Hiss home, his friend had “absolutely refused to break.” Hiss denied that any such incident had ever occurred and repeated his statement that, as far as he knew, the name Chambers “means absolutely nothing to me.” When he was shown a recent photograph of Chambers, the witness insisted that he “would much rather see the individual.... I would not want to take an oath that I had never seen that man. I would like to see him and then I think that I would be better able to tell whether I had ever seen him.” When Mundt told him that Chambers was not present in the hearing room, Hiss replied, somewhat sharply, that “I hoped he would be.”

Even though the acting chairman wondered publicly “what possible motive a man who edits Time Magazine could have for mentioning Alger Hiss in the same breath as Nathan Witt, Lee Pressman, John Abt and Harold Ware, he thanked Mr. Hiss for his “very cooperative attitude” and “forthright statements.” Furthermore, he stated that he had been impressed by the fact that the witness was the first of all the people named by Elizabeth Bentley and the other apostates to come forward voluntarily and deny his guilt. Even Mississippi’s Rankin, who was not known for his kinship with intellectuals, congratulated Hiss for not taking advantage of the Fifth Amendment and for appearing without a lawyer “to tell him what to say.” All in all, it had not been a bad day for the gentleman from New York.

After Hiss had denied knowing Chambers, Stripling informed Mundt that “there is a very sharp contradiction here in the testimony. I certainly suggest Mr. Chambers be brought back before the Committee and clear this up.” The chairman agreed and appointed a sub-committee composed of California’s Nixon, Louisiana’s Hébert and Pennsylvania’s McDowell to question Chambers in executive session. Two days later, the sub-committee met in Room 101 of New York’s United States Courthouse. With Nixon taking the lead, Chambers was questioned closely about his claimed acquaintance with Alger Hiss and his family. The witness’ answers revealed such an intimate knowledge of the Hisses that it was apparent that he had either known them extremely well or done considerable homework.

First of all, Hiss had known him only as Carl, his party name. They had been the best of friends and he had spent a great deal of time at the various Hiss homes in Baltimore and Washington. The witness’ knowledge of what Hiss later referred to as “petty housekeeping details” was apparently inexhaustible. He knew that Mrs. Hiss called her husband “Hilly,” that the Hisses had a cocker spaniel, and that “they both had the same hobby—amateur ornithologists, bird observers.” In fact, he remembered that “once, they saw, to their great excitement, a prothonotary warbler.”

MR. McDOWELL: A very rare specimen?

MR. CHAMBERS: I never saw one. I am also fond of birds.

When he had first met the Hisses, they owned a Ford roadster which, he remembered, “was black and it was very dilapidated.” In 1936, they had purchased a new Plymouth, and J. Peters, the head of the underground organization, had helped them dispose of the Ford through a Communist service station in Washington. He described Hiss as a slender man, “about 5 feet 8 or 9,” who walked with “a slight mince;” Priscilla Hiss was “a short, highly nervous, little woman” who had “a habit of blushing red when she is excited or angry, fiery red.” Timmy Hobson, Mrs. Hiss’ son by a previous marriage, “was a puny little boy, also rather nervous.” The boy’s father was paying for his education but the Hisses were diverting “a large part of that money to the Communist Party.”

MR. NIXON: Hiss told you that?

MR. CHAMBERS: Yes, sir.

MR. NIXON: Did he name the Communist Party as the recipient?

MR. CHAMBERS: Certainly.

MR. NIXON: He might have said simply “the party.” Could it have been the Democratic Party or Socialist Party?

MR. CHAMBERS: No.

Hiss had told him that he had a sister who lived with his mother. In fact “he once drove me past their house, which as I recall, was on or near Linden Street.” But he had never seen either the mother or the sister. As for Hiss’ younger brother, Donald, he had met him “within the same week in which I met Alger Hiss.” But, whereas “my relationship with Alger Hiss quickly transcended our formal relationship,” Chambers’ contact with Donald was confined to collecting party dues from him. He couldn’t remember much about Donald except that he was married to a non-Communist and that “everybody was worried about her.” He had a general impression that the younger Hiss “was much less intelligent than Alger” and that “he was interested in the social climb.”

Mrs. Hiss’ maiden name was Priscilla Fansler and “she came from the Great Valley near Paoli, Pa.” In fact, Chambers had once taken a trip with the family, and Mrs. Hiss had shown him “the road down which their farm lay.”

MR. NIXON: You drove with them?

MR. CHAMBERS: Yes.

MR. NIXON: Did you ever go on a trip with them other than by automobile?

MR. CHAMBERS: No.

MR. NIXON: Did you ever stay overnight on any of these trips?

MR. CHAMBERS: No.

While he was fairly certain that Mr. Hiss did not go to church because he was forbidden to do so, he did not know about his wife who “came from a Quaker family.”

Before subsiding, Nixon asked the witness if he had seen Hiss since 1938. Chambers’ answer was as definite as it could be. “No: since the time I went to his house and tried to break him away, I have never seen him since.” Hébert then took over and exhibited a marked interest in the house occupied by the Hiss ménage. When Chambers had first met Hiss “he was living on Twenty-eighth Street.” Some time later, he had moved to a house in Georgetown, possibly “on the corner of P Street.” He had the impression “it was a three-story house with a kind of porch in back where people sat.” After that, “he moved to a house on an up-and-down street, a street that would cross the lettered street, probably just around the corner from the other house and very near to his brother Donald.” This house had a basement, dining room and a small backyard. “I think he was there when I broke with the Communist Party.” When he tried to persuade Hiss to leave the Party, too, the latter had been living in a house “beyond Wisconsin Avenue.”

Before the sub-committee adjourned at 1:10 p.m., Nixon suddenly asked Chambers if he was “willing to submit to a lie detector test on this testimony.” The witness said he would if Nixon thought it was necessary.

MR. NIXON: You are that confident?

MR. CHAMBERS: I am telling the truth.

Before Messrs. Nixon, Hébert and McDowell returned to Washington that afternoon, they had decided to recommend to the full Committee that Hiss be recalled.

On Friday, August 13th, J. Parnell Thomas, the regular chairman, sent a telegram to Hiss, asking him to appear before the Committee the following Monday. That same Friday, Donald Hiss denied at a public hearing “every statement made by Mr. Chambers with respect to me. I am not, and never have been, a member of the Communist Party, or of any formal or informal organization affiliated with, or fronting in any manner whatsoever for, the Communist Party.” He had belonged to nothing more subversive than the Y. M. C. A., the Washington Racquet Club and the Harvard Law School Association. As for his accuser, “I have no recollection of ever having met any person by the name of D. Whittaker Chambers nor do I recognize his photograph which I have seen in the public press.”

MR. NIXON: As I understand your statement, you have made an unqualified statement that you have never known a man by the name of Carl who resembled that man?

DONALD HISS: I have never known that man by the name of Chambers, Carl, or any other name, sir.

When he suggested that whoever was lying ought to go to jail, Mundt seconded the motion.

On August 16th, Alger Hiss faced the Committee once more, this time in executive session. Reassured by the fact that the President of the United States had publicly labeled his case as “a red herring,” deliberately designed to hide the failures of the Eightieth Congress, Hiss eased himself into the witness chair with a visible air of confidence. Again, it was Nixon who asked most of the questions. The first order of business was to try to determine whether Hiss had ever known Chambers, under one name or another. Nixon handed the witness two photographs and asked him “if you can remember that person either as Whittaker Chambers or as Carl or as any other individual you have met.”

This time, Hiss admitted that “the face had a certain familiarity.” Although, he would still like to see Chambers face to face, he was “not prepared to say that I have never seen the man whose pictures are now shown me.” But that was as far as he cared to go until he had the opportunity of “seeing the man, hearing him talk, getting some much more tangible basis for judging the person and the personality.”

MR. NIXON: Would your answer be any different if this individual were described to you as one who had stayed overnight in your house on several occasions?

MR. HISS: I think Mr. Nixon, let me say this: In the course of my service in the government ... I have had a great many people who have visited in my house. If this is a picture of anyone, I would find it very difficult to believe that that individual could have stayed in my house when I was there on several occasions overnight and his face not be more familiar than it is.

When the chairman asked him whether he thought he would recognize a man who had spent a week in his house in the past fifteen years, Hiss was sure that he would “if he hadn’t had a face-lifting.”

MR. THOMAS: No doubt in your mind?

MR. HISS: I have no doubt whatsoever.

After a brief recess, Hiss announced that “I have written a name on this pad in front of me of a person whom I knew in 1933 and 1934 who not only spent some time in my house but sublet my apartment.” The name of this man was George Crosley and the witness remembered him as a free-lance writer who had occasionally interviewed him when he was counsel to the Nye Committee. As he recalled it, “this fellow was writing a series of articles ... which he hoped to sell to one of the magazines.” In June of 1935, when the Hisses had purchased the P Street house, they had rented their Wardman Park apartment to Crosley and his family which consisted of a “strikingly dark” wife and an infant daughter. Because all of Crosley’s furniture hadn’t arrived, “we put them up 2 or 3 nights in a row, his wife and little baby.”

He had also thrown in an old Ford with the apartment. It was an early Model A coupé with “a sassy little trunk on the back.” He had purchased a new car—a Plymouth sedan—and, since Crosley “wanted a way to get around,” he had decided to let him have the Ford.

MR. NIXON: You gave this Ford car to Crosley?

MR. HISS: Threw it in along with the apartment and charged the rent and threw the car in at the same time.

MR. NIXON: In other words, added a little to the rent to cover the car?

MR. HISS: No; I think I charged him exactly what I was paying for the rent and threw the car in in addition. I don’t think I got any compensation.

MR. STRIPLING: You just gave him the car?

MR. HISS: I think the car just went right in with it.

No, he had not given Crosley a bill of sale; “I think I just simply turned it over to him.” He didn’t know whether the writer had recorded the title or not.

He had driven Crosley around Washington in the Ford on several occasions. Once he had given him a lift to New York “when I was going to make a trip to New York City anyway.”

MR. STRIPLING: Was Mrs. Hiss along?

MR. HISS: That I wouldn’t recall. She may have been.

MR. STRIPLING: Did you go to Paoli?

MR. HISS: If Mrs. Hiss was along; yes.

His tenant had left the apartment when the lease expired in September. Although, Crosley had never paid his rent, Hiss had lent him some money but “never got paid back.” He had not heard of him since 1935.

MR. STRIPLING: You wouldn’t say positively George Crosley and this person are the same?

MR. HISS: Not positively.

MR. STRIPLING: You would not say positively?

MR. HISS: I think they are not. That would be my best impression from the photographs.

At one point in the questioning, Hiss stated that both he and his wife were amateur ornithologists. McDowell, who was no mean bird watcher himself, asked him if he had ever seen a prothonotary warbler. The witness replied that he had, “right here on the Potomac.” McDowell replied that he once had observed one in Arlington. Hiss, lost in reverie, seemed to forget that he was in a hearing room. “They come back and nest in those swamps,” he told McDowell. “Beautiful yellow head, a gorgeous bird. Mr. Collins is an ornithologist, Henry Collins. He’s a really good ornithologist, calling them by their Latin names.” Nixon brought him abruptly back to earth with a question about the schools his son had attended from 1934 to 1937.

The three-and a half hour hearing drew to a close with a lawyers’ discussion between Hiss and Nixon as to the reliability of the lie detector test. Nixon had asked the witness whether he was willing to submit to Dr. Leonardo Keeler’s polygraph test, reminding him that Chambers had agreed to do so. Hiss wanted to consult further. He had “talked to people who have seen ... Dr. Keeler’s own test and that the importance of a question registers more emotion than anything else.” While he didn’t want to beg the question, he “would rather have a chance for further consultation before I gave you the answer.” But he would be interested in knowing if Mr. Nixon had ever used the test in his own law practice.

MR. NIXON: No; I have not.

MR. HISS: But you do have confidence in it?

MR. NIXON: Frankly, I have made a study of it in the last week before I put the question. In fact, for the last two weeks I have been studying it and have been in correspondence with Mr. Keeler.

Ten days later, Hiss wrote to the chairman and informed him that since “no Federal Court in the United States relies upon any ‘lie detector’ ... I do not at present feel in a position to make a final decision with respect to the Committee’s suggestion.”

Before Hiss left Washington, he was asked to return at 10:30 a.m. on August 25th when he and Chambers would “have an opportunity to confront one another.” The next morning, a member of the Committee’s staff telephoned him at his New York office and asked him if he would be able to meet with Mr. McDowell later that afternoon. Hiss replied that he would. Shortly before 5:30 p.m., McDowell called and invited him to come over to Room 1400 of the Hotel Commodore. Hiss asked Charles Dollard, a colleague at the Carnegie Corporation, to accompany him, and the two men walked the few blocks to the Commodore. When they entered the hotel suite, Hiss was asked to sit in a chair facing Nixon and McDowell, the only two members of the Committee present.

A few minutes later, a door behind him opened and Chambers was ushered into the room. Nixon asked the two men to stand and face each other. “Mr. Hiss,” he said, “the man standing here is Mr. Whittaker Chambers. I ask you now if you have ever known that man before.”

MR. HISS: May I ask him to speak? Will you ask him to say something?

MR. NIXON: Yes. Mr. Chambers, will you tell us your name and business?

MR. CHAMBERS: My name is Whittaker Chambers.

MR. HISS: Would you mind opening your mouth wider?

Will you go on talking?

MR. CHAMBERS: I am senior editor of Time Magazine.

MR. HISS: May I ask whether his voice, when he testified before, was comparable to this?

MR. McDOWELL: I would say it is about the same now as we have heard.

MR. HISS: I think he is George Crosley, but I would like to hear him talk a little longer.

After Chambers had read a portion of a Newsweek article about Truman’s failure to appoint a new Secretary of Labor to replace Lewis B. Schwellenbach, Hiss announced that, although his voice was less resonant than that of the man he had once known, “I believe ... that he must be George Crosley.” But the man he had known in 1934 and 1935 had had terrible teeth. The teeth of the man he was now asked to identify “look to me as though they have been improved upon or that there has been considerable dental work done since I knew George Crosley.” Nixon asked Chambers whether he had “had any dental work since 1934 of a substantial nature.” It seemed that he had, “some extractions and a plate.”

But Hiss still wasn’t certain. Chambers looked “very different in girth and on other appearances—hair, forehead, and so on, particularly the jowls.” But it was obvious to everyone in the room that he was beating a slow but steady retreat. After Nixon made him go over his previous testimony about subletting the 29th Street Apartment to the “Crosleys,” He asked for—and received—permission to question his accuser.

MR. HISS: Did you ever go under the name of George Crosley?

MR. CHAMBERS: Not to my knowledge.

MR. HISS: You did not?

MR. CHAMBERS: No; I did not.

MR. HISS: Did you ever spend any time with your wife and child in an apartment on Twenty-ninth Street in Washington when I was not there because I and my family were living on P Street?

MR. CHAMBERS: I most certainly did.

MR. HISS: Would you tell how you reconcile your negative answers with this affirmative answer?

MR. CHAMBERS: Very easily, Alger. I was a Communist and you were a Communist.

Finally, Hiss was “perfectly prepared to identify this man as George Crosley.” When Stripling asked him if he thought he could produce three people who would swear that they, too, had known Chambers as Crosley, Hiss said that he would try. The only ones he could think of offhand were Stephen Raushenbush, Robert Wohlford and Elsie Gullender who had worked with him on the Nye Committee in 1935. But he couldn’t remember whether Chambers had ever called on any of these people.

McDowell then turned to Chambers and asked him whether he was prepared to identify Hiss as the man “who was a member of the Communist Party at whose home you stayed.” He was.

MR. McDOWELL: You make the identification positive?

MR. CHAMBERS: Positive identification.

While Chambers was talking, Hiss rose from his chair and walked over toward him. Livid with anger, he invited “Mr. Whittaker Chambers to make those same statements out of the presence of this Committee without their being privileged for suit for libel. I challenge you to do it and I hope you will do it damned quickly.” By the time he had finished hurling his gauntlet, he was so close to Chambers that Louis J. Russell, one of the Committee’s investigators, threw himself between the two men. “I am not going to touch him,” Hiss exclaimed. “You are touching me.” McDowell ordered Hiss to sit down and the hearing was adjourned for a few minutes to clear the air.

The great confrontation was over. Before McDowell brought it to its official close at 7:45 p.m., he announced that, in view of the testimony, the full Committee would meet in Washington on August 25th and that both men would be subpoenaed to appear before it. Hiss told him that he would be happy to show up without putting the Committee to the trouble of serving him with a subpoena. But there was still some unfinished business, he told Messrs. McDowell and Nixon—he had been asked to “make arrangements for Mrs. Hiss to come down from Vermont to meet in executive session with a subcommittee” and he was prepared to oblige if her presence was still required. Because Hiss was uncertain about schedules, it was agreed that he would telephone Mr. Nixon at the Commodore as soon as Mrs. Hiss arrived in town.

MR. HISS: May I come with her?

MR. McDOWELL: Yes.

MR. HISS: Thank you. Am I dismissed? Is the proceeding over?

MR. McDOWELL: Any more questions to ask of Mr. Hiss?

MR. NIXON: I have nothing.

MR. McDOWELL: That is all. Thank you very much.

MR. HISS: I don’t reciprocate.

MR. McDOWELL: Italicize that in the record.

MR. HISS: I wish you would.

Later that evening, Hiss called Nixon and told him that his wife had arrived in town and would be available as originally scheduled. The next morning, the Hisses, accompanied by Dollard, met with Nixon at the Commodore. The hearing took only ten minutes. After Mrs. Hiss had affirmed that she would tell the truth, she stated that she had known a man by the name of George Crosley between 1934 and 1937. She remembered that Crosley and his wife had spent a few days with them before moving into their old apartment on P Street. As far as she could recall, she had never taken a trip with this man whom she described as “a little too smiley.” Before Nixon dismissed her, she informed him that, if he wanted her opinion, the man who had called himself Crosley was nothing but “a sponger.”

The next act in what was rapidly beginning to have all the appearances of a Greek tragedy was scheduled to take place on August 25th in the Caucus Room of the Old House Office Building. Long before Chairman Thomas gavelled the hearing into being at 10:30 a.m., the chamber was filled to overflowing with more people than it had ever held before. Television cameramen, newspaper photographers, radio commentators, and the less spectacular members of the Fourth Estate crowded every corner of the long room. Thomas welcomed them all in the name of the Committee. “We are glad,” he announced, “to have as many representatives of the American public as is possible to crowd into this room today.” He was also mighty happy to put Hiss and Chambers on view together before a nationwide audience.

The first order of business was to determine whether anyone but Alger Hiss had ever known of George Crosley’s existence. At the Commodore confrontation, Hiss had suggested the names of three former Nye Committee employees whom he thought might have run into Crosley when the latter was scrounging for magazine fodder. Stripling’s investigators had discovered that one was dead, another could not be traced, and the third couldn’t remember ever having met anyone named Crosley. A search of the records of the Library of Congress, the Copyright Division and the Public Catalogue had uncovered only two writers by that name—an obscure 1905 poet and a doctor who had published a treatise on the effects of ultra-violet light. If George Crosley had ever existed, he was now a case for the Missing Persons Bureau.

With Crosley out of the way, the Committee turned to Fords and photostats. Hiss had previously testified that after he had purchased a new Plymouth in the Spring of ’35, he had either given Crosley-Chambers “the use of the car” or “the car outright.” According to the records of the District of Columbia’s Motor Vehicles and Traffic Bureau, Hiss had bought the Plymouth on September 7, 1935. If the dates were correct, then Hiss had given Chambers the old Ford before he had obtained the Plymouth.

Nixon was obviously fascinated by the business of the cars. Would Mr. Hiss enlighten him as to whether he had sold, or given the car to Crosley?

MR. HISS: I gave Crosley, according to my best recollection....

MR. NIXON: Well, now, just a moment on that point. I don’t want to interrupt you on that ‘to the best of my recollection’ but you certainly can testify ‘Yes’ or ‘No’ as to whether you gave Crosley a car. How many cars have you given away in your life, Mr. Hiss?

MR. HISS: I have only had one old car of a financial value of $25 in my life. That is the car that I let Crosley have the use of.

When Mundt reminded the witness that, a week earlier, he had sworn that he had “sold him an automobile,” Hiss promptly swallowed his words and conceded that, if that’s what the transcript said, it must be correct.

After Nixon had read into the record most of Hiss’ previous testimony about the Ford roadster, he confessed to the chairman that he was “amazed to hear Mr. Hiss say this morning that he can only testify to the best of his recollection as to whether he ever gave Crosley a car at all, that he is not sure as to whether or not he transferred the car to Crosley, that he might have given it to him for his use only, and that he is not even sure when the transaction occurred....” As far as he was concerned, Hiss ought to “tell us exactly what did happen to that car.”

The witness was only too happy to oblige. His testimony, “based upon the best recollection I have, is that I gave Crosley the use of the car, as I gave him the use of the apartment.” He thought that the transfer had taken place at the same time as he had subleased the apartment to the Crosleys but it could have taken place “several months after the rental transaction.” When Mundt asked him whether he had ever given the Ford “to anybody else in any way besides to Mr. George Crosley,” Hiss insisted that he could not answer the question “without consulting the records.”

The reason for the Committee’s preoccupation with the Ford’s disposition became clear when Stripling called Louis Russell, one of its own investigators. Russell testified that he had checked the records of the District’s Director of Vehicles and Traffic and that he had discovered that one Alger Hiss had assigned a 1929 Ford automobile to the Cherner Motor Company on July 23, 1936. He identified a photostatic copy of the assignment of title as a copy of the original document which he had seen on file. It was signed by Hiss and notarized by W. Marvin Smith, an attorney in the Solicitor General’s office.

After some shilly-shallying about “photostatic signatures,” Hiss admitted that “it looks like my signature to me, Mr. Chairman.” He was also prepared to go a little further and own that Mr. Smith had indeed notarized his signature. When Stripling produced a sales slip which indicated that the vehicle had been sold by the Cherner Motor Company to one William Rosen a few hours after Hiss had turned it in, that was the last trace of the saucy little car that was carrying the Committee to glory.

Just before the noon recess, Hébert wanted to ask a question.

MR. HÉBERT: Mr. Hiss, now that your memory has been refreshed by the development of the last few minutes, do you recall the transaction whereby you disposed of that Ford that you could not remember this morning?

MR. HISS: No, I have no present recollection of the disposition of the Ford, Mr. Hébert.

MR. HÉBERT: In view of the refreshing of your memory that has been presented here this morning?

MR. HISS: In view of that, and in view of all the other developments.

MR. HÉBERT: You are a remarkable and agile young man, Mr. Hiss.

In the afternoon, Hiss read a letter he had written to Chairman Thomas the preceding day. After spelling out for the Committee his record as a public servant, he read a list of questions which he wanted Chambers to answer in public. He was informed that Chambers would “take the stand directly after you finish on the stand today.” Before he subsided, Hiss challenged Chambers “to make the statements about me with respect to Communism in public that he has made under privilege of this Committee.”

It had grown dark when Chambers took the stand, and Thomas ordered the lights turned on. Led by Nixon and Stripling, the portly witness repeated much of his former testimony about Hiss and Communism. Since his predecessor on the stand had raised a question about the editor’s mental condition, Nixon asked him whether he had ever been “treated for mental illness.”

MR. CHAMBERS: Yes; I have never been treated for a mental illness—period.

MR. NIXON: You have never been treated in a mental institution?

MR. CHAMBERS: Never.

MR. NIXON: Never. Have you ever been treated for a mental illness or been in an institution during the past four years, which was the charge made?

MR. CHAMBERS: Of course, not; and anyone at Time Magazine can tell you that.

Just before eight o’clock, Nixon wanted to know if Mr. Hiss was the witness’ closest friend. Chambers replied that he “was certainly the closest friend I ever had in the Communist Party.”

MR. NIXON: Mr. Chambers, can you search your memory now to see what motive you can have for accusing Mr. Hiss of being a Communist at the present time?

MR. CHAMBERS: What motive can I have?

MR. NIXON: Yes, I mean do you—is there any grudge that you have against Mr. Hiss over anything that he has done to you?

MR. CHAMBERS: The story has spread that, in testifying against Mr. Hiss, I am working out some old grudge, or motives of revenge or hatred. I do not hate Mr. Hiss. We were close friends, but we are caught in a tragedy of history. Mr. Hiss represents the concealed enemy against which we are all fighting, and I am fighting. I have testified against him with remorse and pity, but in a moment of history in which this nation now stands, so help me God, I could not do otherwise.

The chairman’s gavel signified the end of the hearing.

Two days later, Chambers accepted Hiss’s challenge to repeat his accusations in public. When he appeared on the Meet the Press radio program, Edward T. Folliard of the Washington Post asked him, “are you willing to say ... that Alger Hiss is or ever was a Communist?” When Chambers replied that “Alger Hiss was a Communist and may be now,” Folliard wanted to know if he was “prepared to go to court to answer a suit for libel or slander?” The answer was short and to the point. “I don’t think Hiss will go to court.”

On September 27th, Hiss proved him wrong by filing a $75,000 defamation suit in a Baltimore federal court. Although Chambers announced that he welcomed the litigation, he became convinced during some pre-trial hearings that, unless he could document some of his charges, he was reasonably sure of losing the suit. However, hidden behind a dumbwaiter shaft in the Brooklyn home of Nathan Levine, one of his nephews, was a bulky manila envelope. In it, were forty-seven typed copies of State Department reports, five rolls of microfilm, and four memoranda in Hiss’s handwriting. Chambers counted on these to save him from a civil judgment. They didn’t fail him.

William Marbury, Hiss’ attorney in the Baltimore libel suit, had asked Chambers whether he could produce “any documentary proof of your assertions?” On November 17th, Chambers complied by dumping the copies of official documents and the Hiss memos on the long conference table in Marbury’s office. These, he claimed, Hiss had turned over to him in 1937 after meeting a Colonel Bykov, a Soviet secret agent. Hiss would bring classified reports home for his wife to type. He would return the originals to the files the next morning while the typed copies would be delivered to Chambers for transmission to Bykov.

Hiss immediately directed his attorneys to turn the documents over to the Department of Justice. Alexander Campbell, chief of Justice’s Criminal Division, rushed up to Baltimore and took possession of all the papers. At the same time, he ordered John F. X. McGohey, the United States Attorney in New York, to convene the Federal Grand Jury. But, with the exception of a provocative little item in Jerry Kluttz’ column in the Washington Post that “some startling information” had been uncovered in the Baltimore libel suit, what Chambers was later to refer to as his “lifeline” didn’t seem to have made much of a stir.

Bert Andrews of the New York Herald Tribune thought that he smelled a rather large rat. He decided to play his hunch and, on December 1st, cabled Nixon, who was on the high seas bound for a Central American vacation, that a “bombshell” had exploded in Baltimore. Nixon ordered Stripling to visit Chambers at his Maryland farm where the latter blandly admitted that he had been less than frank with the Committee. Twenty-four hours later, Nixon, with the help of the Coast Guard, was back in Washington, and Chambers had turned over the five rolls of microfilm which he had cached in a pumpkin in his backyard to William Wheeler and Donald T. Appell, two Committee investigators. Three of the rolls, which had not yet been developed, were still in their aluminum cylinders while the developed rolls were wrapped in oilpaper bags.

On December 3rd, the day before Nixon & Company announced its strike, the New York Federal Grand Jury was called back into session. Its first step was to subpoena both Hiss and Chambers, a step that forced the Committee—most regretfully—to cancel a scheduled public hearing. On December 15th, the grand jurors, by one more than a bare majority, returned a two-count indictment against Alger Hiss. In it, it was charged that he had lied twice in his testimony: once, when he denied that he had turned State Department documents over to Whittaker Chambers, and again when he swore that he had not seen his rotund accuser “after January 1, 1937.” According to the grand jury, Hiss had delivered Government reports to Chambers in February and March of 1938 and had seen him during those months.

Hiss’ trial was originally scheduled for January 24, 1949 but, because of six adjournments, it was not until May 31st that it officially began with the selection of a ten man—two woman jury. McGohey had entrusted the case for the prosecution to the hands of Thomas F. Murphy, an Assistant United States Attorney noted for the thickest and droopiest mustache in New York County. Hiss had selected Lloyd Paul Stryker, a white-haired veteran of the criminal courts, as his attorney-in-chief. There were others—Thomas J. Donegan, who had been sent by the Attorney General to lend a helping hand, and Edward C. McLean, who used up a chair at the defense table—but it was Murphy and Stryker who carried the biggest swords. The judge was Samuel H. Kaufman, a wizened little man who could hardly see over the edge of the bench without rising from his abundantly stuffed chair.

The jury had been selected in less than three hours. Early on the afternoon of the trial’s first day, Murphy heaved his 6’ 4” bulk out of his chair and opened the Government’s case. He was going to prove, he announced, that Hiss had lied as the grand jury charged. Although he intended to corroborate Mr. Chambers’ testimony, he admitted, somewhat over-generously, that “if you don’t believe Mr. Chambers’ story, we have no case under the Federal perjury rule.” Stryker was more than willing to do battle on these terms and he assured the jury that he would do everything in his power to prove to their satisfaction that the man who accused Alger Hiss could only be described by the term used “in the warm southern countries” to warn of the approach of lepers—‘Unclean, unclean!’

Chambers was the Government’s first witness. Dressed in a baggy blue suit, he wearily repeated the testimony he had given on so many occasions in the past. He described his years in the Communist underground, his intimate friendship with the Hisses, the help the defendant had given him in obtaining secret State Department papers, and his own torturous break with the Party in 1938. This was all old hat to those who had followed the House Committee hearings, but suddenly Chambers added something new. He swore that Hiss had lent him $400.00 in the fall of 1937 to buy a new car for a trip to Florida, a trip that was to mark his disappearance from the Communist scene.

After Chambers had identified the Baltimore documents and the pumpkin papers as having been received from Hiss, Murphy asked him when he had last seen the defendant.

A. I saw Alger Hiss around Christmas, 1938.

Q. And where did you see him?

A. I saw him at his home on Volta Place.

The Hisses had lived at 3415 Volta Place in northwest Washington from December 29, 1937 to November 1, 1943, and Chambers claimed that it was at this house that he would pick up the reports that Hiss had pilfered from State’s files. At first, all papers were photographed in Baltimore by a man named Felix Inslerman, but the procedure was changed in late ’37 when Bykov ordered Priscilla Hiss to type copies of the reports.

On his last trip to Volta Place, he had tried to convince Hiss to join him in breaking with the underground. His friend had told him that he was sorry that Chambers, whom he knew only as Carl, was leaving the party because he had heard that “a new and more important post was to be given to me.” Before they had said goodbye, Hiss gave Chambers a wooden rolling-pin as a Christmas present for the latter’s infant daughter. One year later, in a conversation with Assistant Secretary of State Adolf A. Berle, Jr., he had named Hiss “as a member of the Communist Party.”

Stryker didn’t waste any time beating around the bush when Murphy turned the witness over to him. He wanted to know if Mr. Chambers knew what an oath was. His man did. “An oath is a declaration which a man makes when he promises to tell the truth.” He agreed with Stryker that “in our courts it is an affirmation made by a man who calls on Almighty God to witness the truth of what he says.” But, Stryker thundered, wasn’t it a fact that he had taken an oath in 1937 to “support and defend the Constitution of the United States against all enemies?” He had.

Q. That was false from the beginning to the end, was it not, Mr. Chambers?

A. Of course.

Q. And it was perjury, wasn’t it?

A. If you like.

Q. And you did it in order to deceive and cheat the United States Government ... is that not true?

A. That is correct.

Q. You were an underhanded enemy of this country doing what you could to aid a foreign country and overthrow our constitution by force and violence?

A. Yes.

Chambers admitted that he had used more than seven aliases between 1924 and 1938 when he was in the underground. Furthermore, he had lied to the Dean of Columbia University, had stolen books from numerous libraries, and had lived with several women including a New Orleans whore with the fanciful name of “One-Eyed Annie.” While he was at Columbia, he had written an anti-religious play that was so offensive that he had been expelled from the university.

Chambers was prepared to admit everything—that he had been a liar, a thief, an atheist, a spy and a cheat. But he insisted that he had repented when he broke with the Communists in April of 1938. This was the opening Stryker had been waiting for.

Q. Did you have a high, God-fearing man’s regard for an oath in August of 1948?

A. Yes.

Q. Did you in October, 1948, testify before the grand jury in this building?

A. I did.

Q. When you testified before the grand jury, you were asked whether there was any espionage and you answered that there was not?

A. I answered I had no knowledge of it.

Q. Was that answer true or false?

A. That answer was false.

Q. Then you admit that you testified falsely and committed perjury before the grand jury in this building, is that right?

A. That is right.

After getting his pliable witness to admit that he had written erotic poetry and that his brother Dick had committed suicide after two previous attempts, Stryker called it a day. Murphy tried to repair some of the damage by asking Chambers to explain why he had perjured himself before the grand jury as late as 1948. The ex-Time editor (he had resigned on December 10th), maintained that he had done so “to preserve from injury in so far as I could all individuals in the past in that conspiracy.... I was particularly anxious not to injure Mr. Hiss any more than necessary out of grounds of past friendship and because he is by widespread consent a very able man. Therefore, I chose to jeopardize myself rather than reveal the full extent of his activities and those of others.” Perjury was never more nobly explained away.

Before he called Esther Chambers, Murphy put a variety of witnesses on the stand to buttress the accuser’s story. A bank official testified that Mrs. Hiss had withdrawn $400.00 from a joint account on November 17, 1937, while an automobile salesman said that Mrs. Chambers had purchased a Ford sedan four days later. After some typewritten notes and reports sent to various people by the Hisses were identified, an Oriental rug dealer by the name of Edward H. Touloukian said that he had delivered four Bokhara rugs to a Dr. Meyer Schapiro just after Christmas of 1936. Since Chambers had sworn that he had been ordered by Colonel Bykov to give the defendant a rug, Dr. Schapiro’s testimony that he had bought the rugs from Touloukian at the editor’s request and with his money was of more than passing interest.

At last, the stage was set for Mrs. Chambers’ appearance. A tiny forty-nine-year-old woman dressed in an ill-fitting gray suit, she perched nervously in the witness chair, waiting for the indignities she was sure were in the offing. Under Murphy’s gentle questioning, she revealed a wealth of domestic detail about the Hisses that complemented the story told by her husband. The two families had been the best of friends, and she could even recall a wonderful New Year’s Eve party at Volta Place in 1937. Alger and Priscilla called her Lisa and her husband, Carl. When the judge asked her what their last name had been during this period of friendship, the witness stated, “We never had a last name to them.”

Stryker spent two days trying to destroy a woman who had much more endurance than her frail physique would have suggested. While she admitted that she didn’t have “a very good head for figures or dates,” she insisted that the Hisses and the Chamberses had known each other intimately and that she had once painted a portrait of Timmy Hobson. The relationship had been so close that Priscilla Hiss had willingly permitted one of her best linen towels to be used as a diaper by one of the Chambers infants.

During most of Stryker’s cross-examination, Mrs. Chambers, although frequently close to tears, managed to maintain her composure. It was only when the defense attorney began to attack her husband that her voice rose above a whisper. In October of 1937, when she had applied for a scholarship for her daughter, she had referred to Chambers as a “freelance writer and translator.” When Stryker asked her whether she “didn’t think it was much of a misrepresentation to present your husband to this school as a decent citizen,” she snapped back: “I resent that. My husband is a decent citizen, a great man.”

Q. Was he a great decent citizen in October, 1937?

A. When he was in the underground?

Q. I just asked a simple question. Was he a great and decent citizen in October, 1937, yes or no?

A. Yes, and always.

On her direct examination, Mrs. Chambers had first testified that the New Year’s Eve party at Volta Place had taken place at the end of 1936. When it was pointed out to her that the Hisses hadn’t moved to that address until December 29, 1937, she had pushed the date one year ahead. On cross, she was sure that the New Year’s Eve party which she had in mind had taken place at 1245 30th Street and not at Volta Place. She now remembered that it was a housewarming that had occurred at the latter house.

After Mrs. Chambers had stepped down, Murphy decided that it was time to introduce the State Department documents. Photographic enlargements were exhibited on a platform which was set up on the witness box. Walter Anderson, the chief of State’s records branch, identified the typewritten papers as cables received by Foggy Bottom during the first three months of 1938 from American diplomats scattered from Tokyo to Buenos Aires. They covered subjects as unconnected as Manchukuoan finances, Nazi relations with Austria, and British ship construction plans. The microfilm documents were, in the main, interdepartmental papers from the files of the Trade Agreements Section.

After a Miss Eunice A. Lincoln, Assistant Secretary of State Francis Sayre’s private secretary, had identified four of the Baltimore memos as being in the defendant’s handwriting, Murphy called Ramos S. Feehan, an FBI typewriter expert. It was the latter’s opinion that all but one of the Baltimore documents had been typed on the same machine as letters written by the Hisses during the thirties. Stryker was not prepared to dispute Feehan’s conclusions and conceded their accuracy.

With the documents out of the way, Murphy turned to the task of connecting Chambers with their theft from the State Department. For this purpose, he summoned Henry Julian Wadleigh, an Oxford alumnus, who freely admitted that he had begun “to take out documents and give them to unauthorized people as soon as I joined the State Department.” Although he had not given any of the papers in evidence to Whittaker Chambers, he had turned others over to him. However, he insisted that he had limited his thievery to papers which passed over his desk in the Trade Agreements Section. He, too, had been given a rug by Chambers in 1937.

It took Murphy three weeks to put in his case. Stryker’s defense was confined to showing 1.) that Hiss was a man of sterling character, and 2.) that Chambers was as chronic a liar as had ever lived. To prove the first proposition, he paraded to the stand as impressive a group of character witnesses as ever graced an American court. There was John W. Davis, the unsuccessful 1924 Democratic Presidential candidate, Charles Fahy, a former Solicitor General, Admiral Richard Hepburn, and Supreme Court Justices Felix Franfurter and Stanley Reed. They all agreed that Alger Hiss’s reputation “for integrity, loyalty and veracity” was excellent.

These imposing luminaries were followed by Mrs. Claudie Catlett, a rather stout Negress, who had worked as a maid for the Hisses during their early days in Washington. She remembered that Chambers had come to the P Street house once and that he had given his name as “Crosby, like in Bing.” When her employers had moved to either Thirtieth Street or Volta Place, they had given her children an old typewriter. But Murphy forced her to admit that “I don’t remember nothing about the typewriter.” In fact, it hadn’t been until 1949 that one of her sons told her that they had received a typewriter from the Hisses.

The Catlett boys, Raymond and Perry, succeeded their mother. Raymond had helped Ed McLean trace the machine—an ancient Woodstock—to one Ira Lockey’s house where the lawyer had purchased it on April 16, 1949, for $15.00. Raymond had kept the typewriter for a year or two after the Hisses gave it to him and then he had let his brother’s wife take it. She had transferred it to his sister and he lost track of it after that until it had been found in Lockey’s house. But he was unable to tell Murphy in what month or year he had received the machine. “I haven’t got no papers, no secretary to copy all that stuff down,” he explained.

Perry Catlett recalled that the Woodstock had been broken when he first saw it. He had taken it to a repair shop on K Street but some man there had told him that it wasn’t worth fixing. He was certain that the typewriter had been given to his family when the Hisses moved to Volta Street on December 29, 1936. But when Murphy asked him, “What if I tell you that the shop on K Street wasn’t opened for business until September, 1938?,” Perry shook his head and replied, “I don’t know the time.”

When Hiss, neatly dressed in a tan summer suit, finally took the stand, he denied almost everything that Chambers had said on his direct examination. He said that he had known a man named Crosley between 1934 and 1936 but that he had never, until the summer of 1948, ever associated him with Whittaker Chambers. When Stryker asked him if he had ever been a member of the Communist party “or a fellow traveler or a sympathizer,” he quietly answered, “I am not and never have been.” He had never given any “restricted, secret or confidential documents of the State Department of any kind” to Chambers “or any other unauthorized person.” Stryker, after taking his client from his birth in Baltimore to the high point of his government career as General Secretary to the San Francisco Conference, wound up with a crescendo.

Q. Mr. Hiss, you have entered your formal and solemn plea of not guilty to the charges here against you, have you not?

A. I have.

Q. And in truth and in fact you are not guilty?

A. I am not guilty.

With a perfunctory “your witness,” Stryker returned to the counsel table.

Never once during his cross-examination did the prosecutor refer to the defendant as anything but “Mr. Witness.” He took Hiss through the entire period of his acquaintance with Crosley-Chambers, pointing up, in the process, what he obviously regarded as a bold-faced fabrication—the gift of the Twenty-eighth Street apartment and the Ford. As for the Woodstock typewriter, didn’t Hiss tell the FBI agents, who had questioned him on December 4, 1948, that he thought that his wife had given it away “subsequent to 1938?” He might have said that but “my knowledge today is that we gave the typewriter to the Catletts at the time when we moved from 30th Street to Volta Place in December, 1937.” Finally, after eight long hours, at the end of which he was trying to make some hay out of the fact that the witness had not insisted on a lie detector test, Murphy was through.

Priscilla Hiss, a thin, graying woman, followed her husband. She, too, denied any intimacy with the Chamberses as well as any typing of State Department documents. She identified the Woodstock, which sat on the defense table, as the machine her father had given her in the twenties, but insisted that she had never used it after buying a portable in the fall of 1937. Although she had told the Federal Grand Jury that she had given the Woodstock to either a junk dealer or the Salvation Army, the Catletts’ testimony had reminded her that she had turned it over to them just before the move to Volta Place.

Murphy scored early. After the witness denied that she had been a Socialist in 1932, he produced photostats of her registration showing that he had indeed enrolled as such that year. When he asked her whether she knew “that the records of the Socialist Party Morningside Branch list you as a member,” she replied, with some heat, that she did not. Lastly, remembering that Mrs. Chambers had sworn that Prossy, as she called her, had enrolled at Baltimore’s Mercy Hospital “to learn nursing,” he asked Mrs. Hiss whether this was true. It was not. Then how did she explain a letter which she had written on May 25th to the University of Maryland, applying for admission to a course in inorganic chemistry as a prerequisite for “Mercy Hospital’s training course in medical technology?” All the witness could say was that “medical technology” was different than “nursing.”

Stryker’s last witness was a mysterious man who had been sitting just behind the courtroom’s rail making copious notes as Chambers was testifying. At Murphy’s request, he had been identified on the trial’s third day as Dr. Carl Binger, a psychiatrist. After posing a hypothetical question which included every dereliction in Chambers’ past life, the defense attorney asked Binger, “now, assuming the facts as stated in the question to be true and taking into account your knowledge of his writings and translations, have you as a psychiatrist an opinion within the bounds of reasonable certainty as to the mental condition of Whittaker Chambers?” Before Binger could answer, Murphy stormed up to the bench to remind Kaufman that Chambers’ credibility was the central issue of the case and that the psychiatrist’s answer would be a usurpation of the jury’s function. The judge agreed and the good doctor walked out of the courtroom with the answer to Stryker’s question locked behind his beetled brow.

The defense promptly rested and Murphy called Burnetta Catlett, Claudie Catlett’s daughter, as his first rebuttal witness. Burnetta had begun working for a Doctor Easter when she was still in high school and had taken the Woodstock with her to type her homework.

When her employer died, she had left the machine at his house. A Vernon Marlow had found it among the doctor’s effects and finally passed it on to Ira Lockey in return for a hauling job the latter had done for him. Lockey had turned it over to his daughter who had used it to practice typing until she moved to New York in October of 1948. Finally, Ed McLean, Stryker’s cocounsel, had bought it from Lockey for fifteen dollars barely two months before the trial.

Since Perry Catlett had testified that he had taken the Woodstock to a repair shop on the corner of Connecticut Avenue and K Street, Murphy produced one Henri P. Henry, a real estate operator who managed the building. Henry was sure that there had been no typewriter repair stores on Connecticut Avenue at the time, although he did remember that the Woodstock Typewriter Company had rented a second-floor office on September 15, 1938 for two years. When the defense intimated that the company may also have had an office on K Street, a block or so away, just before it moved into Henry’s building, Murphy produced another real estate man who swore that it had done nothing more than sign a lease for the K Street quarters which had been cancelled on June 18, 1938.

John Foster Dulles was easily the Government’s most impressive witness. He said that he had sounded out Hiss at the end of 1945, when both men were en route to England for the first meeting of the United Nations, as to whether he contemplated leaving public life. Although it was Hiss’s recollection that Dulles had, during this voyage, “asked me whether I would be interested in becoming President of the Carnegie Endowment,” the latter denied that he had done so. “I don’t think,” he testified, “I discussed at that time with him the presidency of the Carnegie Endowment, because I was only one of twenty or more trustees, and the trustees did not until their main meeting take up definitely the matter of seeking a president.”

In December of 1946, after Hiss’ election as President of the Carnegie Endowment had been announced, Alfred Kohlberg, the late publisher of Plain Talk, wrote to Mr. Dulles that he had reason to believe that Hiss had been a Communist. Although Hiss had testified that Dulles had contacted him at once and asked him for help in preparing an answer to Kohlberg, the witness insisted that “I did not discuss with Mr. Hiss about the letter ... until some days later on.” As far as the letter’s writer was concerned, “I never wrote a letter to Mr. Kohlberg.”

Nothing daunted, Kohlberg wrote two more letters to Dulles who then asked Hiss to come to his office for a conference. At that meeting, Hiss had testified, Dulles had told him that Kohlberg was the author of the letters he had received. In his testimony, Dulles didn’t say whether he had mentioned Kohlberg’s name or not. As he remembered the conversation, Hiss had informed him that he had just testified before the Federal Grand Jury and that “he had been asked ... of an acquaintanceship with a number of people.”

On the evening of August 3, 1948, the day on which Chambers first testified before the House Committee, Hiss (if he was to be believed) had telephoned Dulles, who was then Chairman of the Board of the Carnegie Endowment. In view of Chambers’ testimony, he had offered to resign if Mr. Dulles thought that his fellow trustees would be unduly disturbed by the allegations that the Time editor was making. Although Dulles could not remember any such conversation, he did recall that he had had a discussion with Hiss late in August. “Mr. Hiss said ... that he had come to the conclusion that he had probably better resign, but that it would be questionable whether he ought to resign while the hearings were going on, because that might seem to be some admission on his part—and I quite agreed with him that any action like his resignation ought not to take place while the hearings were going on.” Hiss did indeed tender his resignation on December 12, 1948, but it was not accepted and he had remained as President until his term expired on May 31, 1949.

After Murphy tried—unsuccessfully—to put Hede Massing, the former wife of Communist Gerhard Eisler, on the stand, the trial ground to a halt in a welter of minor rebuttal witnesses on both sides of the fence, none of whom contributed a great deal to anyone’s store of essential information. An FBI agent who had interviewed Hiss in 1946, the assistant registrar of the University of Maryland, a counselor at a camp attended by Hiss’ stepson, and the proprietor of a small summer hotel in Chestertown, Maryland, who, because of illness, testified by deposition, did little more than add a few hours to a trial that was already into its sixth sweltering week.

Stryker’s summations lasted more than four hours. As far as he was concerned, it was simply a question of Chambers’ credibility. Murphy, he reminded the jury, had summed it up best himself in his opening when he had said that “... if you don’t believe Chambers then we have no case under the federal perjury rule.” And who could believe a chronic perjurer, a fornicator, a confessed spy, an atheist, a pornographic poet and a blasphemer? “The case comes down to this,” he told his twelve auditors, “who is telling the truth? Alger Hiss or Chambers?” There was no doubt as to how he had answered this question for himself. “I would not believe Chambers on a stack of Bibles if the FBI stacked them as high as this building!”

Toward the end, Stryker’s face was as red as the hand with which he relentlessly pounded the rail of the jury box. “Ladies and gentlemen,” he begged them, “if I have done anything that you don’t like, if I have offended you, any one of you, in any way, hold it against me, not against Alger Hiss.” Exhausted and shaken, he turned slowly and looked toward the counsel table where his impassive client sat. “Alger Hiss, this long nightmare is drawing to a close. Rest well. Your case, your life, your liberty are in good hands. Thank you, ladies and gentlemen.”

Murphy, retreating somewhat from his ill-chosen definition of the federal perjury rule, confessed that he wasn’t resting his case on Chambers alone. There were the documents and the Woodstock. If Hiss’ contradictions about the apartment and the car he had turned over to Chambers weren’t convincing enough, how could the handwritten documents be explained away? Even the defense’s location of the missing typewriter was suspect—if the FBI couldn’t find it, why was it so ridiculously easy for Ed McLean to trace it to Ira Lockey’s house? “I submit that two things must be clear; one, that the typewriter was in the possession of the Hiss family until at least Mr. Chambers’ defection, until he left the Party; and two, that the Catletts had the typewriter for some time after that....”

“We have shown you here,” he thundered at the jury, “the typewriter, the original State Department documents, the documents in this case—three solid witnesses.” The dozen or so character witnesses the defendant had put on the stand couldn’t change that. “Mr. Stryker said that he was going to call the shade of Oliver Wendell Holmes and have the ghost of that revered Justice testify on behalf of the defendant. And I said to myself, if he is going to call the shade of Justice Holmes, there are a couple of shades that I would like to call here. One man’s name was Judas Iscariot and the other’s Major General Benedict Arnold.” He paused a moment to let that sink in. “But let me dwell a moment on reputation. I dare say that Judas Iscariot had a fairly good reputation. He was one of the Twelve. He was next to God, and we know what he did. Benedict Arnold came from a fine family. He was made a major general and sold out West Point. He wasn’t caught. But, if he had been caught, don’t you think he could have had George Washington as a reputation witness?”

He was almost through. “You are the second jury to hear this story,” he told them. “The Grand Jury heard the same story. The Grand Jury heard this traitor and Mr. Chambers, and that Grand Jury indicted Hiss. It indicted Hiss because he lied. He lied to them and I submit he lied to you. The Grand Jury said he lied twice on December 15th. And as a representative of 150,000,000 people of this country, I ask you to concur in that charge of the Grand Jury. I ask you as a representative of the United States Government to come back and put the lie in that man’s face.”

The jury retired at 4:20 on the afternoon of July 7th. Six hours later, after their foreman had informed Kaufman that there was no possibility of reaching a verdict that night, the jurors were sent to a hotel. At noon the next day, they filed back into the jury box to listen to Kaufman’s repetition of the portion of his charge dealing with corroborative and circumstantial evidence. Three hours later, the foreman asked a bailiff to deliver a note to the judge informing him that “the jury feels that it cannot arrive at a verdict.” At 4:45, he forwarded a similar communication. Kaufman begged them to try once more, but at 8:55 they announced that “the jury finds it impossible to reach a verdict.” This was enough for Kaufman who discharged them “with the thanks of the court.” The trial was over.

Four months later, the United States of America versus Alger Hiss encored, this time with District Judge Henry W. Goddard at the helm. Tom Murphy was still around but Stryker had yielded to Claude B. Cross, a quiet, unassuming Boston elder who looked as if he had never pounded a counsel table in his life. A jury of seven women and five men was quickly selected and, on the afternoon of November 19, 1949, the Government began its second go-round in its attempt to convict Alger Hiss of perjury.

With only minor discrepancies, most of the witnesses who had testified at the first trial repeated their stories. But there were parvenus. Goddard was determined to admit any evidence that was vaguely relevant and several of the witnesses who had been rejected by Kaufman were permitted to tell their once-verboten stories. Hede Massing, for instance, said that she had met the defendant in 1935 at the Washington home of Noel Fields, an erstwhile League of Nations official. Mrs. Massing, an ex-Communist, who admitted that “I have a bad memory,” stated that she and Hiss had had a conversation as to which one of them was going to win Fields for his cell.

Henrikas Rabinavicius, a former Lithuanian diplomat, later testified for the defense against Mrs. Massing. According to him, he had met her at the home of Eugene Lyons in the Fall of 1949. There, she told him that, during the early thirties, she had been assigned by the Party “to endeavor to contact young men in the Department of State.” She had carefully concealed her Communist affiliation from her “young men,” she had told him, “because that would have frightened them away from her.” When Rabinavicius had intimated that he doubted the truth of her remarks, she threatened to write a devastating article about him.

William Rosen, the elusive vice-president of the Cherner Motor Company, to which the old Hiss Ford had been transferred, had been located by Murphy in California after the first trial. He proved to be a far from loquacious witness. Outside of admitting that he did not know either J. Peters or Alger Hiss, he refused to answer every question Murphy threw at him on the ground that “any answer I may give may tend to incriminate me.” When Rosen stepped down, Goddard warned the jury it was not to draw any inference unfavorable to Hiss because the witness had claimed his constitutional immunity.

Sergeant George Norman Roulhac had been stationed in the Aleutians during the first trial. Murphy now called him to prove that the Woodstock had not been in the Catletts’ possession until after the date of the most of the typewritten documents and not on December 29, 1937, as Priscilla Hiss had claimed. Roulhac had signed the lease for Mrs. Catlett when she had moved to P Street on January 17, 1938, because the rental agent would not deal with a colored lady. He was sure that he had not seen any typewriter at P Street until “about three months after we lived there.” The machine he had seen in a downstairs hallway was “the same design” as the Woodstock he had been shown in court.

Cross called Dr. Binger back to the wars. The answer to the famous hypothetical question that Kaufman had blocked in July was about to be delivered with Goddard’s blessing. Binger waited patiently until the question was in the record, and then, with his eyes on the ceiling, opined that “Mr. Chambers is suffering from a condition known as a psychopathic personality, a disorder of character the distinguishing features of which are amoral and social behaviour.” One of the most significant symptoms of this malady were “chronic, persistent, and repetitive lying and a tendency to make false accusations.” However, he admitted to Murphy that doctors frequently disagreed on diagnosis and that he had been wrong more than once in his own professional life.

On the trial’s last day, Murphy produced his one surprise witness—Edith Murray who had worked as a maid for the Chamberses at their two homes in Baltimore from the Fall of 1934 to the Spring of 1936. She swore that she had seen Mrs. Hiss there four times and the defendant once. However, when she had first been shown a photograph of Mrs. Hiss by FBI agents, she was not quite sure of her identity. “They asked me did I know this lady, and I said it looks like someone that I know. It looked like—I thought maybe it was an actress or something. I say it looks like someone I know, but I just couldn’t remember at that time.”

On November 17th, the first day of the trial, she had been stationed in the corridor outside of the courtroom. She was told by the FBI agents who had brought her to New York that “all they wanted to do was bring me up here to see if I could recognize the woman that was in the picture and the man on the picture.... I just stood out in the hall and it was a crowd of people. They asked me did I see anybody in the crowd that I know, and I looked around, and I didn’t see anyone at this time, and stood there; so then, after a while, in the back of me where I was standing was an elevator, in the back of me, like, and I looked around, and then I see Mr. and Mrs. Hiss come over, and right away I knew them.”

The jury filed out at 2:50 p.m. on January 20th. On the afternoon of the next day, it found the defendant “guilty on the first count and guilty on the second.” Four days later, Goddard sentenced him to five years on each count, the terms to run concurrently. A few minutes earlier, Hiss had thanked his Honor for allowing him to say a few words. He denied again that he was guilty of the charges against him and promised that “in the future the full facts of how Whittaker Chambers was able to carry out forgery by typewriter will be disclosed.”

Goddard set $10,000 bail and paroled Hiss in Cross’ custody. In December, the Court of Appeals for the Second Circuit affirmed the conviction. When the United States Supreme Court refused to intervene, the last door was closed. On March 22, 1951, Alger Hiss entered the federal penitentiary at Danbury, Connecticut. What Whittaker Chambers once called “the spectacle of tragedy” had run its course.

8

They Gave the Bomb to Russia

The United States of America
versus

Julius Rosenberg, Ethel Rosenberg
and Morton Sobell

Early on the evening of Wednesday, September 5, 1945, Igor Gouzenko, an obscure twenty-six-year-old cipher clerk in the Russian Embassy in Ottawa, walked into the editorial offices of the Ottawa Journal with an armful of secret Soviet files. When the Canadian authorities, with Gouzenko’s help, translated the 109 documents he had pilfered, they discovered that the country was honeycombed with Russian spies who were part of an extensive network that covered Great Britain, the United States and Canada. Perhaps the most important name that was found in the Gouzenko papers was that of Allan Nunn May, a British atomic scientist, who was then working at the Montreal Laboratory of the National Research Council. It was through Dr. May’s efforts that, on August 9, 1945, Colonel Nicolai Zabotin, the Russian Embassy’s military attaché, was able to report to Moscow that he had obtained samples of Uranium 233. May was arrested when he returned to England in late September and, after pleading guilty to a charge of violating the Official Secrets Act, was sentenced to ten years in prison.

The secret service agents who examined Dr. May’s papers had found the name ‘Fuchs’ scrawled on several pages of notes. For some reason, no attention was paid to this name although Dr. Klaus Emil Julius Fuchs, a German-born physicist who was a naturalized British subject, had just returned to England from a tour of duty with the Manhattan Project, the American atomic bomb station at Los Alamos, New Mexico. It wasn’t until four years later that Fuchs was arrested, and immediately confessed that he had been supplying atomic information to a Soviet courier who regularly visited him in New York and New Mexico. He did not know the name of the courier but indicated that he had appeared to have an excellent knowledge of chemistry.

When he was shown photographs of various American chemists who were suspected of espionage, he had pointed to one and said, “That is the man!” The photograph he had identified was that of a biochemist named Harry Gold who was employed by the Pennsylvania Sugar Company in Philadelphia. It was Gold, Fuchs said, who had met him in various parts of the United States and to whom he had turned over certain information for transmission to Anatoli A. Yakovlev, a Russian diplomatic agent in New York. He had first met Gold in Woodside, Queens, in June of 1944, and continued these clandestine meetings until he was transferred to Los Alamos early in 1945.

Upon Gold’s apprehension, he admitted that he had been working as a Soviet espionage agent for more than fifteen years. He had first met Yakovlev, a long-nosed young man who walked “with somewhat of a stoop” and who was known to him only as ‘John,’ in March of 1944, at a Manhattan restaurant. Yakovlev had ordered him to contact Fuchs, who was then working in New York with a British-American atomic team. At the Woodside meeting, the physicist had told Gold that he was “going to give me information. This information was to relate to the application of nuclear fission to the production of a military weapon.” A few weeks later, the two men had met in Brooklyn’s Borough Hall area where Fuchs gave the courier “a package of papers” for transmittal to Yakovlev.

Just before Fuchs left for Los Alamos in February of 1945, Gold saw him in Cambridge, Massachusetts. In addition to the usual package of documents which he had turned over to Gold, Fuchs “made mention of a lens which was being worked on as a part of the atom bomb.” Before the two parted company, they made a date to meet in Santa Fe in June. When Gold told Yakovlev about the lens, the Soviet agent “was very agitated and told me to scour my memory clean so as to elicit any possible scrap of information about this lens.”

Four months later, Gold and Yakovlev met in Volks’ Cafe on 42nd Street and Third Avenue. After the details about meeting Fuchs in Santa Fe had been discussed, Yakovlev told Gold that, on the same trip, he would also have to visit Albuquerque where he was to see an American soldier named David Greenglass who was stationed at Los Alamos. He was to tell Greenglass that “I come from Julius” and show him a piece of cardboard from a dessert box. “Yakovlev told me that the man Greenglass ... would have the matching piece of cardboard.” Either Greenglass or his wife would have some information for him and he was given an envelope containing $500.00 which he was to turn over to them. Yakovlev told him that he would find the Greenglasses in an apartment at 209 North High Street.

On June 2, 1945, Gold, after seeing Fuchs, took a bus from Santa Fe to Albuquerque. About 8:30 that evening, he went to the High Street address that Yakovlev had given him but was informed by a neighbor that the Greenglasses were not home. Early the next day—a Sunday—he returned to High Street and this time found the couple in their apartment. After informing Greenglass that he “was from Julius,” Gold produced the piece of cardboard which matched that in the other man’s possession. Greenglass, who was “a young man of about twenty-three with dark hair,” then introduced Gold to his wife, Ruth, and asked him to come back later that day as the information was not yet ready for delivery. That afternoon, Greenglass gave Gold “an envelope which he said contained ... the information on the atom bomb.” Before Gold took his leave, Greenglass informed the courier that he expected to come to New York on furlough around Christmas and that “if I wish to get in touch with him then I could do so by calling his brother-in-law Julius and he gave me the telephone number of Julius....”

Gold returned at once to New York and turned over the material he had received from Fuchs and Greenglass to Yakovlev. Although he returned to New Mexico again in September of 1945 to see Fuchs, he never saw the Greenglasses again. Fuchs told him that the first atomic bomb had been exploded at Alamogordo in July and that he thought that “he would probably very soon have to return to England.” The scientist was extremely upset because the British had entered Kiel ahead of the Russians and he was afraid that his Gestapo dossier would fall into the wrong hands. Gold told him not to worry and that, after his return to England, he would be contacted on the first Saturday of every month at the Paddington Crescent station of the London subway. He was to carry five books in one hand and two in another, while the man who would meet him would have a copy of Bennett Cerf’s Stop Me if You Have Heard This in his left hand.

When Gold was apprehended on May 23, 1950, he told his story to the FBI agents who had picked him up. As a result of his revelations, David Greenglass and his wife, Ruth, were arrested three weeks later in their New York City apartment. Like Gold, the Greenglasses confessed that they, too, had been engaged in espionage activities on behalf of the Soviet Union. They insisted, however, that they had merely been pawns in the hands of Julius Rosenberg, an electrical engineer, who was married to David’s sister, Ethel. It was Julius, they both claimed, who, with an assist from Ethel, had persuaded them to become atomic spies and who had directed their espionage activities. On July 16th, the Rosenbergs were arrested in their eleventh-floor apartment in Knickerbocker Village, a middle-income housing project on Manhattan’s lower East Side.

One month later, the Federal Grand Jury in New York returned conspiracy indictments against Julius Rosenberg, Ethel Rosenberg and Anatoli Yakovlev. Four weeks earlier, Harry Gold had pleaded guilty to the same crime in Philadelphia and been sentenced to thirty years in prison. On October 10, 1950, a superseding indictment included David Greenglass and an electrical engineer named Morton Sobell as additional defendants. They were all accused of conspiring to deliver to “a foreign nation ... documents, writings, sketches, notes and information relating to the National Defense of the United States of America.” Since Yakovlev had returned to Russia in December of 1946 and David Greenglass had admitted his guilt, another indictment which named only the Rosenbergs and Sobell was filed on January 31, 1951, and their joint trial began in New York City on March 6, 1951.

When court convened at 10:30 that morning, District Judge Irving R. Kaufman, a comparative newcomer to the Federal bench, presided. Irving H. Saypol, the United States Attorney for the Southern District of New York, and five assistants appeared for the government. The Rosenbergs were represented by a father-son team—Alexander Bloch for Ethel and Emanuel H. Bloch for Julius. Harold M. Phillips and Edward Kuntz stood up for Sobell while O. John Rogge, the attorney for the Greenglasses, only hung around long enough to ask Judge Kaufman to notify him when his client took the stand so that he “could be in attendance.” The judge assured him that he would be happy to do so and Rogge, with a grateful smile, double-timed out of the courtroom.

After a jury of one woman and eleven men had been impanelled, Saypol called Max Elitcher, a former employee of the Navy Department’s Bureau of Ordinance. Elitcher had attended Stuyvesant High School and City College with Morton Sobell. He said that Sobell had taken him to a Communist Party get-together in the fall of 1939 and that he had then regularly attended such meetings. In 1941, Sobell had left Washington to study for his Master’s degree at the University of Michigan.

Three years later Elitcher, who had remained with the Navy Department, received a telephone call from “a person who said he was Julius Rosenberg,” a former City College classmate, and who, like Sobell and Elitcher, was an electrical engineer. This man had visited him that same day and asked him whether he would be willing to obtain “classified information about military equipment” and turn this over for transmittal to Russia. He had assured Elitcher that his old friend Sobell was “helping in this way.” Before the two parted, Rosenberg instructed the witness to telephone him as soon as he had any information so that it could be promptly photostated and returned to the Navy Department before it was missed. Elitcher told him that “I would see about it.”

On Labor Day, the Elitchers joined Sobell and his fiancée on a vacation trip to Kumbabrow State Park in West Virginia. When Elitcher mentioned Julius’ visit, Sobell appeared agitated and said, “He should not have mentioned my name.” Elitcher tried to pacify him by pointing out that Rosenberg “knew about our close relationship [and] probably felt safe about it,” but Sobell kept insisting that “it makes no difference, he shouldn’t have done it.”

A few months after Sobell’s marriage in March of 1945, the Elitchers spent a night in New York at Rosenberg’s apartment. The latter announced that he had been discharged by the Signal Corps for security reasons. According to Elitcher, “he thought it had to do with his espionage activity, but he was quite relieved to find out it only had to do with the party activity.” He next saw Rosenberg in September when Julius came to Washington and dropped in for “fifteen or twenty minutes.” The conversation was limited to Elitcher’s work on fire control devices for the Navy. Rosenberg asked him whether he “would want to contribute [to satisfy] a continuing need for new military information for Russia,” and Elitcher testified that “I said I would see and if I had anything and I wanted to give it to him, I would let him know.”

Meanwhile, Sobell had left Ann Arbor for Schenectady where he was employed by General Electric. Elitcher visited him there early in 1946, only to be pumped about the availability of written reports on the Navy fire control system. When he told Sobell that “it was not completed, it was dragging along, it had not been finished yet,” he was advised to see Rosenberg as soon as possible. Some months later, he met Rosenberg again in his Knickerbocker Village apartment. This time Rosenberg complained that “there was a leak in this espionage” and that it would be better if “I don’t come to see him until he lets me know or until someone informs me.” In fact, Julius thought that things were so hot that he ordered Elitcher to discontinue his Communist Party activities until further notice.

In 1947, Sobell left General Electric and took a job as a project engineer with the Reeves Instrument Corporation in New York. From time to time, Elitcher visited him at the plant and, toward the end of the year, had lunch with him at a restaurant on Third Avenue known as the Sugar Bowl. During the meal, he remembered that his ex-roommate had “inquired as to whether I knew of any engineering students ... who would be safe to approach on this question of espionage, of getting material.” Elitcher claimed that he knew of nobody who fitted this bill but “if somebody came along, I would tell him about it.”

After several meetings with Sobell at Reeves, Elitcher made up his mind to leave the Bureau of Ordinance and enter private industry. In June of 1948, during a business trip to New York, he telephoned Sobell to inform him of his plans, and the former told him not to take any final step “before you see me. I want to talk to you about it, and Rosenberg wants to speak to you about it.” Later that day, Elitcher met Rosenberg and Sobell at 42nd Street and Third Avenue. They did everything in their power to persuade him to stay in the Bureau because, as Julius put it, “he needed somebody to work at the Navy Department for this espionage purpose.” During this conversation, Sobell kept repeating, “Julie is right; you should do that.” But Elitcher was adamant and, after the three men had dinner together, returned to Washington to resign from the Navy Department and bring his family back to New York.

At this time, Sobell lived at 164-17 73rd Avenue in Flushing. Elitcher was successful in landing a job at Reeves and, in late July, drove to New York on an apartment-hunting expedition. While driving through Baltimore, he noticed that he was being followed by several cars. When he arrived at Sobell’s house that evening, he told his friend that one or two cars had tailed him during most of his northward trek. Sobell was furious. “At this point, he became very angry and said that I should not have come to the house under those circumstances.” After he calmed down, he told Elitcher that he had something in the house “that he should have given to Julius Rosenberg some time ago....” He said he was tired and asked Elitcher to join him on the ten-mile trip to Manhattan. As they were leaving the house, Elitcher “saw him take what I identified then as a 35-millimeter film can.”

The two men left Queens and drove down the East River Drive to the Journal-American Building where Sobell parked the car. He took “this can out of the glove compartment” and, after instructing Elitcher to drive the car around the corner and wait for him on Catherine Slip, walked off in the direction of Knickerbocker Village. When he returned some thirty minutes later, Elitcher asked him, “Well, what does Julie think about ... my being followed?” Sobell assured him that “it is all right; don’t be concerned about it,” and headed the car in the direction of Flushing. As they drove along, Sobell volunteered the information that Rosenberg had told him that he once spoke to Elizabeth Bentley on the telephone but that “he was pretty sure she didn’t know who he was and therefore everything was all right.”

Before Saypol turned the witness over to the impatient defense quartet, he had extracted the information that Sobell had “a Leica camera, and an enlarger and material for processing film.” Elitcher was sure that Sobell had worked on classified material when he was employed by the Navy, General Electric and Reeves. He had last seen his friend in June of 1950 when Sobell and his family left for a weekend in Washington.

Q. Did he say anything to you at that time about going to Mexico?

A. No.

Only the uninitiated in the courtroom were ignorant of the fact that Sobell had been picked up in Mexico City in the late summer of 1950 by Mexican security police and rushed across the Rio Grande.

On cross-examination, Elitcher conceded that he had signed a loyalty oath in 1947. “I signed a statement saying that I was not or had not been a member of an organization that was dedicated to overthrow of the government by force and violence.”

Q. At the time you verified that oath, did you believe that you were lying when you concealed your membership in the Communist Party?

A. Yes, I did.

Q. So you lied under oath?

A. Yes.

When he was first questioned about the Sobells and the Rosenbergs, he “realized what the implications might be” of his perjured statement. But he insisted that he “didn’t know what would happen to my skin when I told the story. I certainly have hopes ... that the best will happen to me.”

With the witness’ admission that he had been going to a psychiatrist since 1947 because of marital difficulties, the defense attorneys let him go. There was bigger game in the offing. The bailiff called out the name of David Greenglass and, accompanied by a United States Marshal, the ex-sergeant walked up to the witness chair. Although Elitcher had testified to a connection between Sobell and Rosenberg and some suspicious activities by both men, he had not shown that either one was engaged in atomic espionage. This was David Greenglass’ function and he played his role to the hilt.

After being trained as a mechanic at the Haaren Aviation School, Brooklyn Polytechnic and Pratt Institute, Greenglass was drafted in April of 1943. When he finished basic training, he had been sent to ordinance school at Aberdeen, Maryland. In July, 1944, he was assigned to the Manhattan District Project at Oak Ridge, Tennessee. After two weeks orientation, he was sent to Los Alamos where he worked in the “E” shop as a machinist. He was one of ten machinists in the shop and became its foreman some eighteen months later. But it was not until November of 1944 that he learned that the work he was doing was “concerned with the construction of the atom bomb.”

It was his wife, Ruth, who had enlightened him as to the nature of the Manhattan Project. On November 29, 1944—their second wedding anniversary—she visited him in Albuquerque. A few days after she arrived, the couple decided to walk to the Rio Grande via Route 66. It was during this outing that Ruth told her husband that the Rosenbergs had invited her to dinner just before she left New York. Ethel and Julius had informed her that they had become Soviet espionage agents and that they were “giving information to the Soviet Union.” Julius had then told Ruth that David “was working in the atomic bomb project at Los Alamos and that they would want me to give information to the Russians.”

At first, David refused to help the Rosenbergs, but, after a night of soul-searching, he apparently had a change of heart. The next day, he furnished his wife with the code names for such scientists as J. Robert Oppenheimer, Neils Bohr and George B. Kistiakowski as well as information about “the general layout of the Los Alamos Atomic Project, the buildings, number of people and stuff like that.” Ruth told her husband that she had been instructed by Julius “not to write it down, but to memorize it.” Two days later, she returned to New York.

Greenglass next saw his wife on New Year’s Day of 1945 when he arrived home on a fifteen-day furlough. Julius came over one morning and “asked me to give him information, specifically anything of value on the atomic bomb, whatever I knew about it.” He was particularly interested in some high explosive lens molds on which David told him he was working at Los Alamos. That evening, Greenglass drew some sketches of the lens molds and gave them to his brother-in-law the following morning. In order to assist Greenglass in preparing his sketches, Julius gave him “a description of the atom bomb” of the Hiroshima type.

Two or three days later, the Greenglasses were invited to dinner at the Rosenberg’s. There they met a woman by the name of Ann Sidorovich. Later that evening, Julius told David that Mrs. Sidorovich would go west during Ruth’s next trip to Albuquerque and that the two women would exchange pocketbooks in a Denver movie theatre. Ruth’s was to contain the latest information on the atom bomb that David would turn over to her in Albuquerque.

However, there was a chance that another courier would be sent. To make sure that the Greenglasses would be able to identify Sidorovich’s replacement, Rosenberg gave Ruth one part of the side of a Jello box and told her that whoever came to Albuquerque would have the other portion. Ruth put the piece of cardboard in her wallet. The rest of the evening was spent in discussing lenses, and Rosenberg told Greenglass that “he would like me to meet somebody who would talk to me more about lenses.” The person Julius had in mind was a Russian scientist and an appointment was made for David to meet this man a few nights later on First Avenue between 42nd and 59th Streets.

Greenglass borrowed his father-in-law’s Oldsmobile and parked at the spot Julius had indicated. His brother-in-law brought over a strange man who got into the car and ordered David to drive around the area. He asked the machinist a great many questions about lenses—the high explosive used, the means of detonation and the formula of the curve in the lens. David promised to find out what he could when he returned to Los Alamos and he drove the Russian back to where he had entered the car. He then returned home where “I told my wife where I had been.”

Two weeks later, he returned to the Manhattan Project. Early the next April, Ruth joined him in Albuquerque. Shortly after she arrived, the couple found an apartment at 209 North High Street. David managed to spend Saturdays and Sundays at the apartment, returning to the base on Monday mornings. It was on one of those Sundays—June 3, 1945—that Harry Gold made the first of his two visits to the Greenglasses. After announcing that he came from Julius and exhibiting the other half of the Jello box side, he was told by David to come back later as the information was not yet ready. As he left the apartment “Mrs. Greenglass told me that just before she had left New York City to come to Albuquerque, she had spoken with Julius....”

That afternoon, David turned over to Gold several sketches of a lens mold, some descriptive material about atomic bomb experimentation, and a “list of possible recruits for espionage.” He also indicated that a test explosion was scheduled for July at Alamogordo, New Mexico. The Greenglasses then accompanied the courier on a back road that led by the USO where “we dropped him. We went into the USO, and he went on his way. As soon as he had gone down the street my wife and myself looked around and we came out again and back to the apartment and counted the money.”

Q. How much was it?

A. We found it to be $500.

Q. What did you do with the money?

A. I gave it to my wife.

It was at this point that Saypol introduced a sketch of a lens mold which had been prepared from memory by Greenglass after his arrest. The latter stated that it was, for all practical purposes, a replica of one he had given Gold in Albuquerque.

In September, Greenglass arrived in New York on furlough. He stayed at his mother’s apartment on Sheriff Street where Rosenberg visited him the next morning. Greenglass told him, “I think I have a pretty good description of the atom bomb.” He turned over a sketch and some data relating to the bomb to his brother-in-law who seemed delighted with them. He gave David $200.00 and told him that “he would like to have it immediately, as soon as I possibly could get it written up....” A replica of this sketch was identified by an atomic engineer at a later stage of the trial as a cross-section of “the bomb we dropped at Nagasaki, similar to it.”

That afternoon, Greenglass typed some twelve pages of information and then drove over to Knickerbocker Village with Ruth where he gave the manuscript to Julius. The latter insisted that the report’s grammar be corrected and Ethel retyped it on a portable in the living room. While this was going on, Julius told David that he had once stolen a proximity fuse when he worked for the Emerson Radio Company. Before the Greenglasses left that afternoon, Julius advised David to stay at Los Alamos as a civilian when he was discharged from the Army.

David received an honorable discharge at Fort Bliss in El Paso on February 28, 1946. He immediately returned to New York where he went into business with his brother Bernard, Julius Rosenberg and a man named Goldstein. The four formed two companies—G & R Engineering and the Pitt Machine Products Corporation. Some time in 1946 or 1947, Julius urged David to continue his schooling at Russian expense “for the purpose of cultivating the friendships of people that I had known at Los Alamos and also to acquire new friendships with people who were in the field of research that are in those colleges, like physics and nuclear energy.” He suggested a number of institutions, including the University of Chicago, the Massachusetts Institute of Technology and New York University, but Greenglass “never bothered” to go.

In August of 1949, David left Pitt and G & R and got a job with the Arma Engineering Corporation. In the three years he had been working with his brother-in-law, Julius had told him a great deal about his espionage activities. According to Greenglass, Rosenberg was receiving information from General Electric as well as from someone in Cleveland, Ohio. “He told me that he had people going to school in various up-State institutions.” In 1947, he revealed that he had heard “from one of the boys” about a sky-platform project, and information about “atomic energy for airplanes” from another. As a reward for all his varied activities, he informed David, he and his wife had been given watches, a citation and a console table by the Russians.

Q. Did he describe the citation at all?

A. He said it had certain privileges with it in case he was sent to Russia.

A few days after Klaus Fuchs’ arrest in February of 1950, Rosenberg awakened Greenglass one morning and insisted that he accompany him on a walk around nearby Hamilton Fish Park. He told David that the man who had visited him in Albuquerque five years before had been one of Fuchs’ contacts and that he would probably be picked up soon. He urged Greenglass to leave the country and promised to obtain some money for him from the Russians. For the next few months, Rosenberg kept pressing David to get out of the United States but it was not until Harry Gold’s arrest in May that he told him that “you will have to leave the country.”

At that time, he gave David $1000.00 and promised him $6000.00 more. He suggested that David and Ruth go to Mexico City and that they get their tourist visas at the border rather than at the Mexican Consulate in New York. Once the couple arrived in Mexico City, they were to make contact with the Russian Ambassador and, by following instructions that would have delighted E. Phillips Oppenheim, eventually wind up in Czechoslovakia. Greenglass went so far as to have six sets of passport pictures taken. On Memorial Day, he turned five sets over to Rosenberg who, a week later, brought him $4,000 in tens and twenties in a brown paper bag. Almost all of this money, he said, had been given to O. John Rogge as a fee for legal services.

In the days that followed this visit, David began to notice that he was being regularly followed. When Julius asked him, “Are you being followed?” he told him that he thought he was. His brother-in-law then asked him what he intended to do about it and Greenglass told him, “I am not going to do anything. I am going to sit—I am going to stay right here.” On June 15th, he was picked up by agents of the Federal Bureau of Investigation. One month later, Julius Rosenberg was taken into custody and, on August 11th, Ethel was arrested. The circle that Gouzenko had started in 1945 was full.

Ruth Greenglass told much the same story as had her husband. Julius and Ethel had persuaded her to encourage her husband to commit espionage. Her brother-in-law had given her $150.00 for railroad fare when she first visited David in Albuquerque in late November of 1944. A few days after she arrived, she and her husband took a stroll out of Albuquerque on Route 66 and she “told him that Julius was interested in the physical description of the project at Los Alamos, the approximate number of people employed there, whether the place was camouflaged, what the security measures were, and the type of work that David himself did....” The next day, after consulting “with memories and voices in my mind,” Greenglass told her what she wanted to know and, when she returned to New York a few days later, she wrote it all down for Julius who seemed “very pleased.”

She said that the plan to switch pocketbooks with Ann Sidorovich in a Denver theatre had soon been abandoned in favor of a meeting in an Albuquerque supermarket. On March 3, 1945, she left New York for her second trip to Albuquerque where, after three weeks of apartment-hunting, she found the place on North High Street. On April 18th, she suffered a miscarriage and immediately wrote to Ethel Rosenberg to tell her that she was confined to bed and would be unable to keep the supermarket rendezvous which had been scheduled for “the last Saturday in April or the first Saturday in May.” Ethel wrote back that “a member of the family would come out to visit me the last weeks in May, the third and fourth Saturdays.” The Greenglasses visited the Central Avenue Safeway, which had been chosen as the meeting spot, on both Saturdays but “no one came.” It wasn’t until Sunday, June 3rd, that Harry Gold walked into their living room and announced that he came “from Julius.”

Her description of the Gold visit was similar to David’s except that she insisted that her husband had taken the Jello box side out of her wallet while, as he remembered it, it had been in her purse. The remainder of her testimony pertaining to the various acts of espionage that took place during the rest of 1945 did not differ materially from her husband’s. She did recall a conversation with Ethel in 1946 about a “mahogany console table” which her sister-in-law told her “she had gotten ... as a gift.” Julius interrupted to say that “it was a special kind of a table” and pointed out that its underside had been hollowed out so that it could be used for microfilming.

The defense made a monumental effort to discredit both witnesses. The spectacle of a brother testifying against his sister was not a pretty one and Emanuel Bloch made the most of it.

Q. Do you bear any affection for your sister Ethel?

A. I do.

Q. You realize, do you not, that Ethel is being tried here on a charge of conspiracy to commit espionage?

A. I do.

Q. And you realize the grave implications of that charge?

A. I do.

Q. And you realize the possible death penalty, in the event that Ethel is convicted by this jury, do you not?

A. I do.

But David insisted that he had always loved his sister “as far back as I ever met her and knew her.” If his testimony hurt her, he was sorry, but he felt “remorse” and had to get it off his chest.

Bloch also tried to show that Greenglass lacked the technical knowledge necessary to understand the material he said he was obtaining for Julius. David admitted that he had failed all eight courses he had taken at Brooklyn Polytech, that he had never obtained a degree in science or engineering, and that he had had no training in nuclear or atomic physics. As far as the Army was concerned, he was classified as an automotive machinist and a toolmaker. What he did know about the bomb, he had “picked it up here and there.”

As far as the Blochs were concerned, the Greenglasses were testifying against their clients in the hopes of avoiding punishment for their participation in the espionage conspiracy. At the time of the trial, Ruth had neither been arrested nor indicted despite the fact that she had been very much a part of Rosenberg’s plans. Bloch fils pumped David about this.

Q. Now, Mr. Greenglass, your wife has never been arrested, has she?

A. She has not.

Q. And she has not pleaded guilty to any conspiracy to commit espionage, has she?

A. She has not.

Q. And your wife is at the present time home taking care of your children; isn’t that right?

A. That’s right.

His father tried the same tack when he had Ruth on the stand. She had stated that, after her husband’s arrest, she had informed her lawyer, O. John Rogge, that she wanted to testify for the Government.

Q. Well, was it your state of mind, that you thought you would not be punished?

A. No, I didn’t want to be punished.

Q. Did you hope not to be punished?

A. I did.

Q. And did you at the time you spoke to Mr. Rogge, hope that, if you told the truth and your husband told the truth, you wouldn’t be punished?

A. Mr. Bloch, I have always hoped that ...

Q. Will you answer my question, please?

A. Yes.

Bloch Junior’s parting shot at the Greenglasses involved the nature of their relationship with Julius after the failure of the machine shop in 1949. Ruth testified that “we lost everything in that business.” When her husband pulled out in August of that year, he had asked to be compensated for his twenty-five shares of stock. In fact, Ruth had “bought a book of promissory notes” and drafted several notes for her brother-in-law to sign. “We asked Mr. Rosenberg to sign the promissory notes and he refused, and he said we did not have the understanding that required it—a verbal understanding was sufficient, and he gave neither my husband nor his brother a note.” But she insisted that the incident did not cause any friction between the two families even though she had consulted Mr. Rogge about David’s rights.

Q. Well, aren’t you a bit angry at either Mr. or Mrs. Rosenberg because they did not pay you what you think you were entitled to?

A. I don’t think I am angry. I just can’t understand their actions because there was a debt due.

Q. You are not angry?

A. No, I am not angry. I don’t understand people who do not pay their debts, Mr. Bloch.

Q. And you resent it?

A. I don’t think I resented it. I couldn’t understand why I wasn’t being paid for what was rightfully mine.

It was David’s recollection that he had assigned his stock to his sister’s husband in January of 1950 but that it hadn’t been turned over to him until late April. There was some discussion about the price to be paid for the stock—David wanted $2,000.00 but finally agreed to accept half that amount in the form of a note. After he gave the stock to Julius, he claimed that Rosenberg never signed the promissory note which Ruth had prepared for him. When Greenglass was arrested, he asked Rogge to start a law suit against Rosenberg for the “few thousand dollars” he said he had lost in the machine shop venture. When Ruth testified, she swore that David had never asked his lawyer to sue Julius—“I was the one who spoke of it,” she insisted, “not my husband.”

The Greenglasses were followed on the stand by Harry Gold whose apologia included the saga of his trip to Albuquerque in June of 1945. His version of the episode was identical with those previously put into the record by David and Ruth. He had arrived in Santa Fe on Saturday, June 2nd, where he had a thirty-minute conversation with Fuchs. He then took the bus to Albuquerque, a sixty-minute run, where he “managed to obtain a room in the hallway of a rooming house.” Early the next morning, he had registered in his own name at the Hilton Hotel and then walked to the North High Street address Yakovlev had given him, and climbed “a very steep flight of steps” to the Greenglasses second-floor apartment. Although Ruth and David had testified that they did not receive the $500.00 from Gold until his afternoon visit, the courier remembered that he had given them the envelope containing the money that very morning.

Because Gold, other than by his references to “Julius,” did not implicate either the Rosenbergs or Sobell, he was not cross-examined by the defense team. As he vacated the witness chair to return to the Lewisberg Federal Penitentiary, Saypol called Dr. George Bernhardt. Bernhardt was a physician who lived only a few doors away from the Rosenbergs on Monroe Street. He recalled a telephone conversation he had had with Julius in May of 1950. According to him, the defendant had said, “Doctor, I would like to ask a favor of you. I would like to know what injections one needs to go to Mexico.” When the doctor demurred, Julius had assured him that “it is not for me; it’s for a friend of mine.” Bernhardt then told him that he would need “typhoid injections and a small-pox vaccination.”

During this conversation, Bernhardt informed Rosenberg that if his friend was a veteran “all he would need would be booster doses instead of going through the entire series of injections, and he said, ‘Yes, he is a veteran.’” He told his caller that the typhus injection would not be necessary, however, if his friend was going only to Mexico City but Rosenberg said, “He will probably go into the interior.” Then, Bernhardt had recommended, “if he decided to go ... give me a little notice because I don’t usually stock a typhus vaccine and I would have to get it, and he said he would let me know.”

Q. Did that complete the conversation which you had with him?

A. That is right.

Bernhardt admitted to Block Junior that he had been treating Julius for hay fever during May of 1950. Rosenberg used to come to the physician’s Knickerbocker Village apartment once a week for injections. These injections were usually given in Bernhardt’s living room. But the witness couldn’t remember whether he had ever discussed vacations with his patient or shown him pictures he had taken on Cape Cod. He was certain, however, that he had never discussed “with Julius Rosenberg his taking a vacation in Mexico.”

The Government got back to the subject of Morton Sobell again with the testimony of William Danziger, another City College graduate who had worked with him in the Bureau of Ordinance. Danziger had left Washington in March of 1950 to take a job with the Academy Electrical Products Corporation in New York. Shortly after his arrival, he had looked up the Sobells and, with his wife, visited them in Flushing. It was during this visit that Sobell, after learning that his guest was in “the electrical business,” had suggested to him that he might be able to use Rosenberg’s machine shop.

In the latter part of June, Danziger visited the machine shop where he was informed that Julius was “out at a stamping place. I was at that time rather interested in getting an estimate on stamping, so I went out to the stamping place and saw him out there.” In July, Danziger dropped in at the shop once more “to look over the ... facilities.” Rosenberg told him that “he was rather tied up at that time” and would be unable to accept any new work “for some months.” If Danziger wanted some work done, he was advised “to contact him some time in the future.”

On June 20th, Danziger telephoned Sobell and told him that he was looking for an electric drill in order to do some repair work at his home. Sobell informed him that “he was getting ready to leave for a vacation in Mexico,” but if Danziger wanted a drill, he would have to come to Flushing to get it. When he arrived at the Sobell apartment that evening, he noticed that “there was packing going on, there were valises standing there.” He also saw a car in the driveway with some valises in it. After Sobell gave him the electric drill, he told Danziger that “he was going to Mexico City by air.”

Some weeks later, Danziger received a letter addressed to him at the Academy Electrical Products Corporation from an “M. Sowell” in Mexico City. It was from Sobell and contained two enclosures which he was asked to “forward ... and I will explain to you when I get back.” One was a note to Sobell’s parents and the other to Edith Levitov, a sister-in-law who lived in Arlington, Virginia. Danziger delivered both notes and also followed Sobell’s directions to “deliver my address to Max Pasternak.”

Q. Did you know who Max Pasternak was?

A. I knew he was related in some way.

In the middle of July, he received a second letter from Mexico City. This time, the name on the envelope was “M. or Morty Levitov.” It contained “a letter for me, an enclosure for Miss Edith Levitov and a short additional note which he asked me to forward, using somewhat similar phraseology, ‘I will let you know about it when I get back.’” Danziger promptly forwarded the note to Miss Levitov and never heard from Sobell again. Before he stepped down, the witness said he thought that the return address on the second communication—a Cordova or Corbova Street—was different from the one on the first envelope.

Then a Mexico City interior decorator with the impressive name of Manuel Giner de Los Rios sauntered up to the stand. With an interpreter at his side, he testified in a soft Spanish that he lived in Apartment 5 at 153 Calle Octava de Cordoba. He remembered that the Sobells had rented Apartment 4 at the beginning of July, 1950, and that he had had a conversation on the stairs with Morton about a tank of cooking gas on the day they moved in. A week later, he invited the new tenants to “a party for the family and friends in honor of the saint’s day....”

The Sobells soon reciprocated by inviting de Los Rios and his wife to dinner. A few days afterwards, Sobell, who appeared to be “a little nervous, a little worried,” asked his new friend “how one could leave Mexico.”

Q. Did he make any statement as to why he wanted to leave Mexico?

A. Only because he was afraid.

Q. Did he say specifically what he was afraid of?

A. He was afraid that they were looking for him so that he would have to go to the Army.

Q. Did he say who was looking for him?

A. The military police.

“Sometime around the 20th or 22nd of July, 1950,” de Los Rios recalled, Sobell had gone to Vera Cruz where he stayed “for about fifteen days.” The decorator had received two letters from him during this period, both of which began with the salutation, “Dear Helen.” The first was postmarked Vera Cruz and the second was from Tampico. He delivered each letter personally to Mrs. Sobell.

The interpreter had his work cut out for him that afternoon. Señor de Los Rios had no sooner left the courtroom when the bailiff called out the name of Minerva Bravo Espinosa, who, it turned out, worked in an optical shop on the Calle Cinco de Mayo in Vera Cruz. On July 26, 1950, an American who gave his name as “Mr. M. Sand,” had placed an order with her for a pair of glasses. She had no difficulty in recognizing Sobell as that man. He had filled out a card “which purchasers make out to specify what they buy.” At this point, Mr. Kuntz stood up and announced that “we will concede that we filled out the card and used the name of Sand and bought a pair of glasses there.”

José Broccado Vendrell, who was one of the proprietors of the Grand Hotel Diligencias in Vera Cruz, remembered that a “Morris Sand” had stayed at his establishment until July 30th. Vendrell was followed by Dora Bautista, a clerk at a Tampico hotel. On July 30th, an American, who gave his name as “Marvin Sand,” had registered and asked her for directions to the Banco Granadero. Both witnesses identified Sobell as the man they had seen. Glenn Dennis, an official of a Mexican airline, confirmed that a passenger by the name of “N. Sand” flew from Vera Cruz to Tampico on July 30th, and a “Morton Solt” from Tampico to Mexico City two days later.

Elizabeth Bentley, fresh from her triumphs before sundry Congressional investigating committees, contributed little to the prosecution’s case. Outside of adding to the aura of Communism that permeated the entire trial, her testimony consisted of innuendo only. In the fall of 1942, she had accompanied Golos, her party superior (and lover), to the vicinity of Knickerbocker Village, where he was “to pick up some material from a contact, an engineer.” At that time, she had waited in a car while Golos talked to his “contact.” From then until November of the next year, she used to receive telephone calls from a man “who described himself as ‘Julius.’” Golos had told her that this man “lived in Knickerbocker Village,” but she had “never met anyone whose voice I heard, whom I could describe as Julius.”

The government’s last witness was James S. Huggins, an immigration inspector for the Department of Justice. On August 18, 1950, nine Mexican security policemen had brought Morton Sobell to his office in Laredo, Texas. He identified a manifest record which he had filled out from information given to him by Sobell. At the bottom of the card, he had written, “Deported from Mexico,” despite the fact that the Mexican authorities had not shown him any deportation orders. As soon as Huggins had laboriously typed in the necessary personal data on the manifest, the defendant was arrested by FBI agents who were waiting in the outer office.

As Huggins left the witness stand and headed back for the anonymity of the Immigration and Naturalization Service, Saypol announced that “The Government rests, if the Court please.” In a little less than two weeks, the prosecution had presented the evidence which it hoped would convict all three defendants. After some defense motions for a mistrial because of the infusion of testimony about the Communist Party were denied, Bloch Junior informed Kaufman that “my first witness is the defendant Julius Rosenberg.”

It was late on the afternoon of March 21, 1951, that the mustached, bespectacled Rosenberg sat himself down in the witness chair. A thirty-three-year-old electrical engineer, he proudly stated that he had married Ethel on June 18, 1939, and that they were the parents of two boys, Michael and Robert. Outside of the fact that he knew a great many people whose names were mentioned during the trial, he denied that he had in any way been involved in espionage. As for Russia, he “felt that the Soviet government had improved the lot of the underdog there ... and at the same time I felt that they contributed a major share in destroying the Hitler beast who killed six million of my co-religionists.”

Q. Did you feel that way in 1945?

A. Yes, I felt that way in 1945.

Q. Do you still feel that way today?

A. I still feel that way.

But he was, and always had been, loyal to the United States.

He testified that Greenglass had asked him for $2,000.00 in May of 1950. When Julius asked him why he needed this money, he was told, “I need the money. Don’t ask questions.” David had also urged his brother-in-law to see if his doctor “would make out a certificate for smallpox vaccination.” In addition, he had wanted to know “what kind of injections are required to go into Mexico.” It was after this conversation that Rosenberg had questioned Dr. Bernhardt about the medical requirements for a Mexican trip.

Toward the end of May, David had telephoned Rosenberg and pleaded with him to come over to his apartment. He told Julius, whom he usually called Julie, that he was “in a terrible jam.” He said he needed a “couple of thousand dollars in cash” and, when his brother-in-law told him that he couldn’t raise that amount of money, he had shouted “... if you don’t get me that money you are going to be sorry!” Outside of an inconsequential meeting a few days later, that was the last time that Julius had seen David until the latter testified at the trial.

Ethel buttressed her husband’s emphatic denials of any espionage activities. She knew that Julius had purchased their console table at Macy’s and that “it was about $20 or $21.” Long after the trial, such a table, which a Macy employee priced at $20.36, was found in her mother-in-law’s apartment. As far as wrist-watches were concerned, the one she had been wearing when she was arrested had been given to her by her husband on her birthday in 1945. She remembered that Julius had lost his watch on a New York Central train in August of 1948. She was certain that neither the console table nor the watches had been given to them by the Russians.

When Saypol took over, both witnesses refused to answer any questions that had to do with their association with the Communist Party. Julius informed Judge Kaufman that “if Mr. Saypol is referring to the Young Communist League or the Communist Party, I will not answer any question on it....”

Q. You mean you assert your constitutional privilege against self-incrimination?

A. That’s right.

Ethel bridled at any reference to the word “Communist” and refused to answer such questions as “Did you ever sign a Communist Party nominating petition for elective office?” and “Were they [friends with whom the Rosenbergs had lived for a time] members of the Communist Party?”

After Thomas V. Kelly, a Macy’s attorney, testified that it was impossible to check the purchase of the console table because the store’s records for 1944 had been destroyed, the defense called it a day. But Saypol had three rebuttal witnesses up his well-tailored sleeve—Evelyn Cox, a domestic who had worked for the Rosenbergs in 1944 and 1945, Helen Pagano, a legal secretary employed by O. John Rogge, and Ben Schneider, a commercial photographer. Mrs. Cox was there to swear that Ethel Rosenberg had once told her that the console table had been given to her husband as “a sort of a wedding present.” Mrs. Pagano said that Louis Abel, who was married to Ruth Greenglass’ sister, had brought $3,900.00 to Rogge’s office on June 16, 1950, the day after David’s arrest, and that this money had been wrapped “in a brown bag.” Schneider identified the Rosenbergs as the couple who had ordered some passport pictures from him on a Saturday in May or June of 1950.

On March 29th, the jury, after deliberating more than eighteen hours, returned verdicts of “guilty as charged” against all three defendants. One week later, Judge Kaufman sentenced the Rosenbergs to death because, as he somewhat awkwardly put it, “... your conduct in putting into the hands of the Russians, the A-Bomb ... has already caused, in my opinion, the Communist aggression in Korea with the resultant casualties exceeding 50,000....” As for Sobell, he thought that “the evidence ... did not point to any activity on your part in connection with the atom bomb project” and sentenced him to thirty years, the maximum prison term provided by the Espionage Act, with a “gratuitous” recommendation that he never be admitted to parole. The next day, David Greenglass, whose sentence had been deferred to the end of the trial, was sentenced to a fifteen-year term.

After more than two years of fruitless appeals and motions for a new trial, the Rosenbergs’ executions were set for eleven p.m. on the night of June 19, 1953, at Sing Sing Prison. But three days before, Irwin Edelman, “an interested citizen,” filed a motion with Mr. Justice William O. Douglas, in which he argued that the penalties of the Atomic Energy Act rather than those of the Espionage Act were applicable and that, under the former, the Rosenbergs could not have been sentenced to death. On June 17th, Douglas granted a stay of execution in order to give Edelman’s attorneys time to argue their point. But Chief Justice Vinson reconvened the Court on the following day and the full bench, by a six-to-three vote, vacated Douglas’ stay at noon on June 19th. After President Eisenhower refused to grant clemency, the couple’s execution was moved ahead three hours in order to avoid a conflict with the Jewish Sabbath. A few minutes after eight p.m., Julius and Ethel Rosenberg passed into what Joseph Conrad once called “the great indifference of things.”

9

Contempt by Silence

The United States
versus

Corliss Lamont

On February 9, 1950, a comparatively unknown United States Senator from Wisconsin, who was beginning the fifth year of a colorless first term, addressed the Ohio County Women’s Republican Club of Wheeling, West Virginia. His subject was “Communism in Government.” Halfway through his talk, in a gesture that was shortly to become his trademark, he held up a sheaf of papers and announced to his startled audience that “I have here in my hand a list of 205 that were known to the Secretary of State as being members of the Communist Party and who, nevertheless, are still working and shaping the policy in the State Department.” Before he sat down, linotypers, the country over, were busy punching out the words that were to free him from the obscurity he abhored. Whether he said 57 or 81 or 205 didn’t seem to make much difference—Joseph Raymond McCarthy, ex-Democrat, ex-judge, ex-Marine, had struck pay dirt.

Eleven days later, McCarthy took his attack on the State Department to the floor of the Senate. In a tumultuous six-hour presentation, that was interrupted more than one hundred and fifty times, he dredged up eighty-one cases, all of which had been developed some years earlier by State’s own security investigators. Of these eighty-one, he discussed some seventy-six, broken down into varying degrees of risks. He made no attempt to prove that any of these “risks” were “members of the Communist Party,” or even that they were all State employees, as he had alleged at Wheeling, but contented himself with the observation that there was “something radically wrong” with an agency that did not fully investigate its own suspicions. Before the stormy session broke up, a few minutes shy of midnight, the gentleman from Wisconsin was hoarse and incoherent, and his fellow Senators were so thoroughly confused by the discrepancies in his figures that they had given up all pretence of trying to understand them. The Big Lie, or, as one writer later pluralized it, the Multiple Untruth, had rarely gone over so well.

The immediate result of McCarthy’s February 20th speech was Senate Resolution 231, which authorized the Senate Committee on Foreign Relations “to conduct a full and complete study and investigation as to whether persons who are disloyal to the United States are, or have been, employed by the Department of State.” On March 8th, a Foreign Relations subcommittee, headed by Senator Millard Tydings, Maryland’s patrician legislator, began what was to be a four-month investigation of McCarthy’s charges. After more than 1500 pages of testimony had been taken, most of it supplied by the parvenu accuser, the hearings ground to a close in late June with Owen Lattimore, a professor of government at Johns Hopkins, being offered up as a blood sacrifice. Lattimore, who had never been a State Department employee, was described by McCarthy as “the chief architect of our Far Eastern policy” and “Alger Hiss’ boss in the espionage ring in the State Department.”

“I’m willing,” he told Tydings, “to stand or fall on this one. If I was wrong on this, I think the subcommittee would be justified in not taking my other cases too seriously.” The subcommittee apparently took him at his word because it found that “starting with nothing, Senator McCarthy plunged headlong forward, desperately seeking to develop some information which, colored with distortion and framed by a blaze of lies, would forestall the day of reckoning.” But, although Tydings and a majority of his colleagues were convinced that the junior Senator from Wisconsin had been guilty of perpetrating a “fraud and a hoax” upon the country at large, the very publicity that the hearings received quickly established McCarthy as a farce to be reckoned with. The wrong man and the right moment had met head-on.

In the Fall of 1951, Senator William Benton of Connecticut persuaded the Subcommittee on Privileges and Elections of the Senate’s Committee on Rules and Administration “to determine whether expulsion proceedings should not be instituted against Joseph R. McCarthy” for lying to the Senate and to the Tydings Committee. As Benton put it, McCarthy, by being unable to substantiate his claimed list of 205 (or 81 or 57) party members in the State Department, was clearly “a calculating dispenser of false and perverted information.” But the change in Senate leadership occasioned by the Eisenhower sweep in 1952 resulted in the tabling of the subcommittee’s report, a document which raised a great many intriguing (and unanswered) questions about its subject’s financial dealings. McCarthy, who had been instrumental in Tydings’ November defeat, became the chairman of both the Senate’s Committee on Government Operations and its roving subsidiary, the Permanent Subcommittee on Investigations, and the perennially ill-shaven gentleman from the lake country had an open field before him.

On September 23, 1953, the Permanent Subcommittee, consisting (as it so often did) only of its chairman, was ensconced in Room 128 of New York City’s United States Court House. The day before, a subpoena had been served on Corliss Lamont, the maverick son of one of J. P. Morgan’s partners, ordering him to appear at 2:30 the next afternoon to “testify what you may know relative to the subject matters under consideration by said committee,” namely Communist infiltration in the Army. Dr. Lamont, a leading exponent of what he described as “Democratic Socialism,” who was then teaching philosophy at Columbia University, was the author of several books, including one entitled The Peoples of the Soviet Union.

When Lamont, who had been cooling his heels for more than an hour in an anteroom, walked into Room 128 a few minutes after 3:30 on the afternoon of September 23rd, he had no way of knowing that his case was to be, in a sense, his interrogator’s epitaph. 1953 had been a big year for McCarthy. Before it ended, he and his road-show juveniles, Cohn and Schine, had been involved in some 157 inquiries concerning mainly the Voice of America and the Signal Corps installations at Fort Monmouth, New Jersey. During the first two months of 1954, he was, with the unwilling help of an honorably discharged army dentist and an insulted brigadier general, to set the stage for his own Götterdämmerung. But Irving Peress, Ralph Zwicker and the Army-McCarthy vendetta were still tomorrow’s headlines when the mild-mannered Lamont eased himself into the witness chair and immediately announced that he had a statement objecting to the subcommittee’s jurisdiction which “I would like to read into the record.”

The chairman, always a great stickler for the amenities, informed him that he would have to be sworn before he made any speeches. The witness indicated that he would rather affirm than take an oath, and McCarthy promptly acceded to his request. As Lamont adjusted his glasses and again prepared to read his statement, the chairman interrupted to ask him, “Why you want to affirm rather than be sworn?” When Lamont objected to having to explain his religious beliefs, the Senator snapped, “You will be sworn unless you tell us you have got some ground for refusing to be sworn.” The exchange ended when McCarthy, who apparently felt that he was getting in beyond his depth, capitulated, after warning Lamont that he hadn’t heard the last of the matter. He couldn’t have been more prophetic if he had tried.

Lamont had barely started reading his prepared statement when the chairman suddenly exhibited a compelling curiosity to learn the names of his two attorneys, although one of them, Philip Wittenberg, had submitted his calling card when the hearing opened. When Wittenberg had formally introduced himself and his associate, Irving Like, McCarthy waved Lamont on. The witness, with a remarkable show of almost saintly patience, picked up where the last interruption had left him, and continued his statement.

After informing the chairman that he was “not now and never had been a member of the Communist Party,” Lamont vigorously attacked the subcommittee’s jurisdiction. As far as he was concerned, McCarthy had no power to inquire into his “personal and private affairs.” Not only was this prohibited by the Constitution’s First Amendment, but no statute or Senate rule gave the Permanent Subcommittee the right to question a private citizen as to his “personal conduct, personal beliefs and associational activity.” Indeed, if any governmental agency had this right, it was the judiciary and not the legislature. Lastly, Lamont maintained that the absence of the subcommittee’s three Democrats, who had resigned in a huff in the late summer of 1953 over the chairman’s insistence on hiring staff personnel without consulting them, “has deprived this committee of its competency to act until it has been properly constituted.”

If McCarthy was impressed by what he had heard, his visage didn’t reflect it. Frank Carr, the subcommittee’s staff director, who was hovering at his elbow, handed him a dark-covered book which turned out to be Ernest J. Simmons’ U.S.S.R., a Concise Handbook, to which, it seemed, Dr. Lamont had contributed a chapter entitled “National and Racial Minorities.” After observing darkly that this book was “being used by the military to indoctrinate our troops,” the chairman wanted to know whether the witness had been paid for his chapter. Lamont couldn’t remember whether he had or not, but promised to furnish that information after checking his records.

The next order of business was a mysterious pamphlet called Psychological and Cultural Traits of Soviet Siberia, which later turned out to have been prepared by Army Intelligence. Its bibliography referred to The People of the Soviet Union by a “C. Lamont.” Lamont readily admitted that he had written a book by that name in 1946, but had never read or even heard of the long-named work in which it was cited. In fact, he had tried to find a copy after it was mentioned by McCarthy at a pre-hearing press conference, but was unable to locate it. The Senator promptly asked Frank Carr to supply the witness with a copy. He directed Lamont “to examine the document and then mark those passages which come verbatim from your book.”

Up to this point, there had been little to distinguish the proceedings from the almost two hundred that had preceded it since the Wisconsin Republican had decided that the national destiny called for more drastic tactics than the Constitution permitted. Outside of the fact that Louis Budenz, hardly a stranger at Congressional hearings, was sitting in a corner of the room, the executive session seemed destined for next morning’s back pages. But what had all the earmarks of an innocuous little query began to stir things up. The question: “Do you know a Mr. Louis Budenz, Mr. Lamont?”

Lamont refused to answer the question. When McCarthy asked him for his reasons, the witness offered to read his statement again, but the chairman wasn’t having any more of that. Anticipating that Mr. Lamont would still refuse to answer the question, he ordered him to do so.

Q. I say, so the record is complete, you are being ordered to answer, and I assume you are refusing to answer?

A. Yes, on the grounds stated.

The chairman followed up his first question about Budenz with another concerning the ex-Communist. “Did you ever admit to Mr. Budenz, in a telephone conversation” he asked him, “that you were a member of the Communist Party?” Again, the witness failed to give satisfaction. “I refuse to answer that on the same grounds, Mr. Chairman, as set forth in this statement.” But he was quick to point out that he was not standing on the Fifth Amendment.

Q. You are not refusing under your rights under the Fifth Amendment, right?

A. No, no.

With the cavalier observation that “I think it is necessary for the Chair to order him to answer in case the committee decides to take contempt proceedings against him,” McCarthy waited for his man to come to heel.

Lamont, who recognized a crossroads when he entered one, decided to confer with Wittenberg. The chairman, while very solicitous of the right of a witness to consult his attorney, reminded the official stenographer to make a notation of the fact “so that the record is complete.” After a brief parley, Lamont had his answer ready. “I am declining to answer on the ground that I do not wish to involve myself in controversy with a known provocateur, and I am a loyal American. As I said in the statement, I am not and never have been a member of the Communist Party.” No, he would not identify “the known provocateur,” other than the “person you named in the statement, Mr. Chairman.”

Then McCarthy turned to “a Clarence Hathaway.” Had the witness worked with him “in connection with the penetration of various organizations by the Communist Party?” Lamont objected to the form of the question and, when his objection was promptly overruled, went back to his basic point that the subcommittee did not have jurisdiction to interrogate him. When the Senator pumped him as to whether he had been doing any undercover work for any Communist Party members, the witness, after characterizing the questions as “outrageous,” lapsed into stony silence.

Scarcely concealing a growing jubilation, McCarthy decided that it was time to remind the witness that he was digging a hole for himself. After marking Lamont’s statement as Exhibit 1, he ordered the stenographer to “have the record show the only grounds for the refusal on the part of the witness are the grounds referred to in Exhibit 1; that the witness has said that he is not relying on the Fifth Amendment.” When Wittenberg pointed out to him that his client had also objected to the form of the questions, McCarthy brushed him aside. However, like Lamont, Wittenberg, too, had his flinty side. “But, sir, you were dictating to the stenographer the reason for the refusal of the witness, and he should have the full record.” The chairman’s answer was brief and conclusive: “You may show whatever you like in the record.”

Then McCarthy returned to Ernest J. Simmons and his U.S.S.R., a Concise Handbook. But Lamont was just as adamant as he had been with Budenz and Hathaway. As far as he was concerned, “the book speaks for itself.” This was all the opening an old infighter, who had learned his trade in the North Woods, needed. “You think the book speaks for itself whether he [Simmons] was a Communist?,” he asked the witness. Wittenberg’s somewhat hurried instructions to “decline to answer” proved to be totally unnecessary since, like all good rhetoricians, the chairman was determined to answer his own question. He leaned back in his chair, tugged at his right ear lobe, and solemnly announced: “This might be the first time today that I would agree with you. I think it does speak for itself. He uses you and other men named as Communists almost exclusively.” Lamont, who had been listening politely, hardly seemed impressed by this revelation.

By the time the five-o’clock shadow on the Senatorial jowls had reached its hirsute zenith, Lamont had refused to answer some twenty-three questions, one of which was framed in Russian and was destined to be lost to posterity because the stenographer’s knowledge of the language was limited to “Da” and “Nyet.” It was obvious that the witness was more than prepared for any eventualities. When McCarthy pointed out to him that “you can make a very good test case, Mr. Lamont,” Thomas W. Lamont’s middle son replied, with some fervor, “I hope so.”

As the long afternoon drew to a close, Lamont was ordered to come back at ten o’clock on Monday morning, this time to Room 318 of the Senate Office Building in Washington. When Wittenberg pleaded a previous engagement, the time was changed to one p.m. Before the session ended, McCarthy informed Wittenberg that, while he could not supply him with a copy of the testimony, he was free to correct any errors in the transcript when it was ready. As the brief cases were being snapped closed, the chairman turned to apostate Budenz, whose role as the silent observer was not his usual one.

Q. Before we go, Mr. Budenz, you have listened to the testimony. Can you identify this as the man whom you discussed in your testimony before?

A. Yes, sir.

Q. Good.

No sooner had Lamont and his retinue walked down the courthouse steps than the Senator closeted himself with the waiting reporters who knew that a subcommittee rule that “all testimony taken in executive session shall be kept secret and will not be released for public information without the approval of a majority of the subcommittee” had never stood in its chairman’s way before.

Two days later, Irving Like received a call from a member of the subcommittee’s staff, informing him that there had been a change of plans and that Dr. Lamont’s appearance on Monday, the twenty-eighth, would be quite unnecessary. Like stated that his client would show up in Room 318 of the Senate Office Building at the appointed time unless the oral adjournment was confirmed in writing. At 2:41 p.m. a telegram was dispatched from Senator McCarthy’s office, addressed to Corliss Lamont.

PURSUANT TO CONVERSATION WITH MR. LIKE OF MR. WITTENBERG’S OFFICE THIS DATE, YOUR APPEARANCE BEFORE THIS SUBCOMMITTEE IN WASHINGTON, D. C. ON MONDAY, SEPTEMBER 28, 1953, HAS BEEN POSTPONED. HOWEVER, YOU ARE UNDER CONTINUING SUBPOENA AND BOTH YOU AND YOUR COUNSEL WILL BE NOTIFIED WHEN YOUR APPEARANCE IS REQUIRED.

JOE McCARTHY, CHAIRMAN SENATE
PERMANENT SUBCOMMITTEE ON
INVESTIGATIONS OF THE SENATE
COMMITTEE ON GOVERNMENT
OPERATIONS.

Wittenberg received a similar wire.

At ten a.m. on Monday morning, McCarthy and five members of his staff marched with measured tread into Room 318. The chairman solemnly called the committee to order. “We had announced last week that Mr. Corliss Lamont would be before the committee today, Mr. Lamont has not been subpoenaed. He was notified that he could come today and purge himself of the contempt for failure to answer last week.” As his words trailed off into ether, McCarthy looked around the room and, with a bemused innocence that would have put Scarpia to shame, asked, “Is Mr. Lamont here?” The official transcript notes that “There was no response.” With a grave shake of his head, the chairman ordered Lamont’s testimony made public “so that the reason for the citation for contempt will be very clear.”

On October 2nd, Dr. Lamont wrote to the Senator and reminded him that he was indeed under subpoena on September 28th, and that his appearance in Washington had been postponed by McCarthy himself. Almost a month later, he received a brief letter from Frank Carr, informing him that he had been entirely correct in his earlier communication and that the transcript of the hearing would be rectified accordingly. The next day, Lamont addressed another letter to McCarthy, asking how he intended “to make the record conform to fact and correct the flagrant injustice to me.” There was no answer.

McCarthy didn’t get around to Lamont’s citation for contempt until the following July. In between, he had found bigger game. On January 30th, Major Irving Peress, an army dentist, had refused to answer some questions put to him by the Wisconsin Senator on the ground that his answers “might tend to incriminate me.” Three days later, Peress was given an honorable discharge and became, posthaste, the Fort Sumter of his time. When McCarthy, in a temper tantrum over Peress’ recent promotion to major, told Brigadier General Ralph W. Zwicker, who had distinguished himself at the Battle of the Bulge, that he was “a disgrace to the uniform [and] not fit to be an officer,” the long-simmering conflict between the Senator and the Administration was in the open. On February 21st, Secretary of the Army Robert T. Stevens finally screwed up his courage and condemned what he termed “the humiliating treatment” Zwicker had received, and the White House followed suit on March 3rd when it announced that no officer was required “to submit to any kind of personal humiliation when testifying before Congressional committees or elsewhere.” Indian Charlie’s knee had found its target at last.

A week later, Stevens released a thirty-four-page report which, in effect, accused Frank Carr and Roy M. Cohn, the subcommittee’s chief counsel, of persecuting the Army for its failure to defer or commission G. David Schine. In retaliation, McCarthy asserted that Stevens and his generals were holding Schine as a “hostage” in order to prevent a thorough investigation of the Fort Monmouth personnel. The net result—thirty-six days of testimony, 187 hours of televised proceedings, thirty-two witnesses, and 7424 pages of transcript. The hearings, which were conducted before the temporarily McCarthy-less Permanent Subcommittee, made Joseph Welch famous, established “point of order” as a household phrase, cost both Cohn and Carr their jobs, and started the soybean trader from Appleton on his Retreat from Monmouth. Although the major charges of both sides went largely unsubstantiated, it was clear, as a suddenly fearless Stuart Symington told the two-penny Torquemeda (and a national television audience) that no one was “afraid of anything about you” anymore. Apparently, Joe Welch wasn’t the only one who “had never really gauged your cruelty or your recklessness....” The bubble had, at long last, resoundingly burst.

It was at this ticklish moment in his career that McCarthy urged his fellow Senators to cite Lamont for contempt. On July 16th, four days before Cohn’s resignation, he introduced Resolution 281, which asked the President of the Senate to forward the Lamont case “to the United States Attorney for the Southern District of New York to the end that the said Corliss Lamont may be proceeded against in the manner and form provided by law.” Accompanying the resolution was a carefully edited version of the Lamont testimony, which omitted any reference to the affirmation incident or the discussion of the adjournment date. Apparently, photographs weren’t the only things that could be cropped if one had a talent for that sort of business.

It wasn’t until August 11th that McCarthy’s resolution reached the top of the Senate agenda. Nine days earlier, Senator Ralph E. Flanders’ Resolution 301 to censure his Wisconsin colleague had been referred to a select committee of three Republicans and three Democrats, headed by Utah’s austere Arthur V. Watkins. This didn’t seem to faze McCarthy, who blithely informed his brethren that he had received an opinion from the Attorney General that the matter of Lamont’s recalcitrance “could well be submitted to the grand jury for indictment.” When New York’s Lehman let it be known that he intended to object to any summary treatment of the resolution, McCarthy suddenly remembered that he had left a “number of witnesses” simmering in the committee room, and hurriedly left the chamber.

Because of Lehman’s objections, it was not until August 16th that full debate began on the Lamont citation. The late Senator Langer, with McCarthy baying at his heels, spread on the pages of the Congressional Record the complete story of the adjournment of the September hearing to one o’clock on the afternoon of the following Monday, and the subsequent telegrams which postponed it until further notice. McCarthy’s defense was that Lamont had been “told by telephone that if he wanted to appear and purge himself of contempt, Monday would be the deadline....” It was simply a case of a refusal to take advantage of some misguided but well-intended official benevolence. Besides, why all the furor about this “very wealthy man, not in his own right, but through inheritance,” who had “done more to damage this nation than any other man in the country, with the possible exception of Frederick Field.”

Langer didn’t seem particularly concerned with the size of Lamont’s bank roll. Observing that the only thing in which he was interested was “fair play to the witness,” the Senator from North Dakota hammered home his thesis that McCarthy had been guilty of a gross misstatement when he had announced on September 28th that “Mr. Lamont has not been subpoenaed.” Just read the telegrams of September 25th, he urged his fellows: what could be plainer than the words “You are under continuing subpoena”? Obviously, there was little a body could say about that and the Badger State’s junior Senator slipped out the back of the Senate chamber.

He returned shortly after Langer had yielded the floor to Lehman who decided to explore McCarthy’s insistence that Lamont explain why he chose to affirm rather than take an oath. With a fat tongue in a fat cheek, McCarthy assured the Senators that he was certain that Lehman was “not doing it at all purposely” when he had misinformed them. The real truth of the matter was, he told them, that, while a witness had the right to affirm, he had to state that he had religious scruples against an oath. This was too much for New Mexico’s Chavez whose Jesuit law school training had taught him that there was no difference between swearing and affirming, and that neither had to be explained.

But Lehman’s real argument against the proposed citation had nothing to do with whether a man took an oath or not. He reminded the Senate that another case—United States v. Emspak—which involved the extent of Congressional investigating powers, was pending before the Supreme Court. Since he was certain that its decision would be handed down in “a reasonable number of months” (it took eight), he saw no reason for not adjourning the proposed citation for a little while. McCarthy, who had been pleading with Lehman to yield the floor, could restrain himself no longer. Why, this man Lamont, he reminded his friend from New York, has never reformed. “He is the same tool of the Communist conspiracy.” Did the Senator realize that, as late as May of 1954 the witness had had the effrontery to attack “every committee that has ever exposed a Communist from the committee headed by Martin Dies, down to date?” Such a man was totally unworthy of any Senatorial support.

Just as it looked as if Lehman was getting somewhere, pro-citation help arrived from an unexpected quarter. Leverett Saltonstall heaved his lanky bulk out of his chair and persuaded the New Yorker to give him a moment. He had known Lamont since the latter was ten years old. He had nothing but respect for his parents and his brothers but, as for Corliss, he was “different from his brothers,” who were doing very nicely indeed. The difference, as he explained it, seemed to lie in the fact that “he is a man who has very firm opinions.” Naturally, the Senator from Massachusetts thoroughly disagreed with those opinions, notwithstanding their firmness. In fact, on one occasion, he had come to blows with Lamont over his unorthodox views. The best thing the Senate could do “would be to cite him for contempt and let the court decide on the issues and the facts as we have presented them here tonight.” The successor to Sam Adams, John Hancock and James Otis had spoken.

After Wayne Morse had nobly declaimed that “we, as Senators, owe it to our committees to support them when they come to the floor of the Senate and make a prima facie case in support of a contempt citation,” Lehman made his final pitch. He didn’t believe that the record justified Lamont’s citation. “I very much fear,” he said, “that very serious results may ensue if we permit the record to remain unchallenged and merely say that because a committee brings in a resolution of citation for contempt, the Senate should, in the natural course of events, vote in favor of such resolution. I regard it as a very dangerous procedure.”

But, despite a last ditch stand by Langer, Senator Thomas H. Kuchel, who was presiding, finally put the matter to a vote. The result was seventy-one yeas and three nays. Only Messrs. Chavez, Langer and Lehman voted against the citation. On October 14th, a Federal grand jury in New York, in Indictment No. C 145-216, accused Lamont of refusing to answer the twenty-three questions that McCarthy had asked him one year and three weeks before. The next day, the defendant pleaded not guilty and was released on $1000.00 bail. The gauntlet he had thrown down in the same courtroom on a sunny fall day in 1953 had at last been picked up.

But the junior Senator from Wisconsin was hardly in a position to gloat over his triumph. Three weeks before Lamont’s indictment, the Watkins Committee had unanimously recommended that the man from Appleton be censured by his colleagues. In its report, the Select Committee, which had been handpicked by Vice-President Nixon, stated that McCarthy had been guilty of contempt of the Senate and had flagrantly abused General Zwicker. It wasn’t until the beginning of December that the upper house, by vote of 67 to 22, got around to “condemning” rather than “censuring” him, mainly for his attack on the Select Committee itself. Five days later—on the thirteenth anniversary of the Japanese bombing of Pearl Harbor—“Tail Gunner Joe” retaliated by apologizing to the American people for supporting Eisenhower in 1952. A man guilty of such a “shrinking show of weakness” just wasn’t fit to occupy rent-free government quarters at 1600 Pennsylvania Avenue.

On October 29, 1954, Wittenberg moved to dismiss the indictment against his client on fifteen grounds, the most important of which were his claims that no Congressional committee had the constitutional right to interfere with a private citizen’s First Amendment rights, and that the Permanent Subcommittee was not authorized to conduct its investigation of Lamont. Four weeks later, Wittenberg and J. Edward Lumbard, the United States Attorney, took all day to argue their respective points before District Judge Edward Weinfield. Then they sat back and waited for him to make up his mind, a process that was to take two days short of eight months.

While Weinfield’s meditations were in progress, the Emspak case, which Lehman had tried to use as a roadblock the preceding August, was decided by the Supreme Court. In it and a companion case—Quinn v. United States—Chief Justice Warren put a brake on the powers of Congressional committees. “The power to investigate,” he said, “... is also subject to recognized limitations. It cannot be used to inquire into private affairs unrelated to a valid legislative purpose.” With what many observers believed was a judicial slap at the suddenly vulnerable gentleman from Wisconsin, Warren let it be known that the Court would accept nothing less than a rigid adherence to what he called “minimal procedural standards” as far as legislative investigating committees were concerned.

On July 27, 1955, Weinfield announced his decision. He agreed with Wittenberg that, since the indictment did not allege that Lamont’s refusal to answer the twenty-three questions was wilful, it was fatally defective. But he refused to rest his opinion on the safe ground of improperly drawn charges. He found that there was no evidence that the Permanent Subcommittee ever had the authority to conduct an inquiry of Lamont—or of other witnesses for that matter. Lastly, even assuming that McCarthy had the power he claimed, the judge wasn’t convinced that the Lamont interrogation was within the scope of that power or that any of the questions were pertinent to an investigation of “Communist Infiltration into the Army.” One week later, Senator Langer, with the pious observation that he hoped that “we shall stand fast in following our conscience and doing what is right, in accordance with the truth, in any matters which may develop, even though such a course may be unpopular,” obtained unanimous consent for Weinfield’s opinion to be printed in the Congressional Record.

But there was still some life left in the prosecution. Paul W. Williams, Lumbard’s successor, decided to appeal to the United States Court of Appeals for the Second Circuit, a redoubtable bench that sat three floors above Weinfield’s courtroom. The arguments were much the same as they had been in the District Court. The Government insisted that “wilfullness” was not an element of Lamont’s crime and that it did not have to allege that the McCarthy subcommittee was “duly empowered” to hold its hearing. Wittenberg, on the other hand, was content to ride along with Judge Weinfeld’s interpretation of the law.

On August 14, 1956, the three judges on the appellate court affirmed the dismissal on the somewhat narrow ground that the Permanent Subcommittee on Investigations did not have the authority to venture down the path along which its chairman had led it. This, they reasoned, made the defendant’s First Amendment objections moot. Ad quod non fuit responsum.

Williams made no effort to ask the Supreme Court to review the adverse ruling, and, on September 13th, a consent decree was entered, ending the case against Dr. Lamont. Just ten days short of three years since he had refused to answer McCarthy’s twenty-three questions, the taciturn witness was home free. At long last, the rampage was officially over. As the Hartford Times editorialized, “It is all couched in quiet judicial language, of course, but what it really says is that Senator McCarthy and the Committee were asking questions about things that were none of their business.”

When it became clear that the Government had no intention of carrying the case any further, Lamont told the press that “I am very glad that my court battle has resulted in hammering another nail into the political coffin of Senator McCarthy.” But the Lamont case had little to do with what Richard H. Rovere has referred to as the “interior collapse” which had afflicted Timothy and Bridget McCarthy’s fifth child after the Army hearings. For the last two and a half years of his life, he was back where he had been before the Wheeling revelations, a dispirited jackstraw who began to spend more time in the hospital than he did on the floor of the Senate.

On April 28, 1957, he entered the Naval Medical Center at Bethesda, Maryland, with what his wife described as a “knee injury.” Later, his condition was diagnosed by the Navy doctors as “peripheral neuritis.” At 6:02 on the evening of May 2nd, he died of “acute hepatic infection,” which his enemies intimated had been caused by an overabundance of bourbon. After a funeral in the Senate chamber, he was flown back home to Appleton where he was buried in the cemetery of St. Mary’s Church, a rather pretty spot overlooking the meandering Fox River. The golden years were over.

But if Lamont, as an individual, had no more to do with McCarthy’s overnight submergence than did Annie Lee Moss, Irving Peress, Ralph Zwicker, Owen Lattimore, and the others who had to endure his bad manners, churlishness and downright lunacy, he was very much a part of the cumulative evidence against the grand inquisitor. Too many scalps too soon might have been Indian Charlie’s considered verdict. In the last analysis, it was probably the conservatives who defeated McCarthy, but it was only when they became frightened at what might be the logical extension of his maltreatment of those who could hardly be classed as toilers in their vineyards that they finally closed ranks and smoked out the Big Bad Wolf from Shawano County. American populism would have to find some way to get rid of the Lamonts before it found another champion.

10

Five Against God

Steven I. Engel, Daniel Lichtenstein,
Monroe Lerner, Lenore Lyons
and Lawrence Roth
versus

The Board of Union Free School
District Number Nine,
New Hyde Park, N. Y.

In the fall of 1951, the Board of Regents of the University of the State of New York, which included members of the three major religious faiths, unanimously adopted a twenty-two-word non-denominational prayer for use in the public schools. “Almighty God,” it read, “we acknowledge our dependence upon Thee and we beg Thy blessings upon us, our parents, our teachers and our Country.” In recommending the prayer to local school districts, the thirteen Regents suggested that it be recited in conjunction with the pledge of allegiance to the flag. “We are convinced,” they said, “that this fundamental belief and dependence of the American—always a religious—people is the best security against the dangers of these difficult days.”

On July 8, 1958, the five-member Board of Education of the Herricks Union Free School District in New Hyde Park, a Long Island suburban community, some twenty miles due east of New York City, by a vote of four to one, adopted a resolution “that the Regents’ Prayer be said daily in our schools,” and directed District Principal Lester Peck “that this be instituted as a daily procedure to follow the Salute to the Flag.” The board’s action was duly reported in On Board, its official bulletin, which was distributed to all taxpayers in the district. Lawrence Roth, a plastics manufacturer who had moved to Long Island from New York City seven years earlier, was one of the issue’s most interested readers.

Roth, a slim, bespectacled man in his middle forties, whose sons, Joseph and Daniel, attended two of the district’s seven schools, was distressed by the board’s action. Although he had been vaguely aware that there was some pressure to introduce the Regents’ Prayer into the district’s schools, he also knew that six previous attempts to do so had failed. The school board’s sudden about-face caught him completely by surprise but, being what his lawyers were later euphemistically to call a “non-believer,” Roth was deeply disturbed by the prayer’s implications. His two sons, who were ten and thirteen years old, shared his religious views, and he was concerned with their spiritual and psychological reaction to the new prayer that was scheduled to start in September.

Roth began to discuss the problem with a Catholic neighbor who shared a seat with him on the commuter train to New York City which left the Long Island Railroad’s Albertson station in Rosalyn Heights at 7:03 each morning. It wasn’t long before the plastics manufacturer realized that his knowledge of the United States Constitution as it affected church-state relationships was extremely limited. When his commuter friend recommended that he contact the New York Civil Liberties Union, Roth called that organization at once and spoke to George Rundquist, its energetic director, who suggested that he drop in for a chat at his earliest convenience.

In early August, Roth, who was now more uneasy than ever about the Regents’ Prayer, arrived at Rundquist’s ninth-floor office on lower Fifth Avenue. Although the latter shared Roth’s doubts about the prayer’s constitutionality, he pointed out that any legal action to invalidate it would almost certainly subject Roth and other parents who might join with him to strong community pressures. “You will be hated and despised by most of your neighbors,” Rundquist told his caller, “and your children will have to face the scorn of many of their classmates. But if you are willing to endure all of this, I’ll query our board of directors.” Roth nodded his head. “I’m willing,” he replied firmly.

On September 4, Rundquist sent a memorandum to the members of his board which detailed several items on the proposed agenda for their regular monthly meeting five days later. Item II read as follows:

Regents’ Prayer For Public Schools

The Situation:

On July 8 the School Board of the Herricks Union Free School District (Nassau County) voted that the school day shall be opened by recitation of the following prayer, recommended by the Board of Regents in November, 1951: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.”

At the time that the proposed prayer was released the NYCLU, along with many civic organizations, expressed its opposition to reciting this prayer in the public schools through a public statement to the press and a letter to the New York City Board of Education (December, 1951). We also requested that the matter be considered at a public meeting so that we might have an opportunity to present our views on the matter.

Because of public reaction to the Regents’ proposal, the New York City Board of Education took no action until January 15, 1953. At that time, it adopted a resolution that students sing the fourth stanza of “America” each school day, following the Pledge of Allegiance: ‘Our fathers’ God, to Thee/Author of Liberty/To Thee I sing/Long may our land be bright/With freedom’s holy light/Protect us by Thy might/Great God, our King.

The Question:

Should the NYCLU adhere to the policy adopted in 1951? If so, shall we implement our position by supporting a group of residents in the Herricks School District who seek to enjoin the School Board from proceeding with the recitation of the prayer?

The 1951 letter to which Mr. Rundquist referred had been sent to Maximilian Moss, the President of the New York City Board of Education. In it, John Paul Jones, then the Union’s chairman, had asked for a public hearing before the Regents’ Prayer was considered. “Our opposition,” Jones had written, “is based in law upon the ruling of the United States Supreme Court that neither a state nor the Federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or proffer one religion over another. The Union believes that the proposed non-denominational prayer falls within the ban of the First Amendment as thus interpreted by the Supreme Court.”

Jones was quick to point out that his organization had no objection to programs devoted to spiritual teaching, but that, since it was impossible to present such programs without interpretation, they would inevitably lead to the expression of sectarian points of view. “Our opposition to the proposal of the Regents is not opposition to the teaching of religion,” he concluded. “But it is the belief of the Union that the teaching of our spiritual heritage, through prayer and special programs, is the function of religious leaders and of parents and not the proper function of public school teachers conducting classes in a public school supported by public funds.”

On September 9, Rundquist reviewed the situation for the Union’s Board of Directors at their regular luncheon meeting at a midtown hotel. While several of his listeners thought that it would be wiser to work through the legislature rather than the courts, the majority voted to assist Roth and his neighbors with legal help. “It was moved and passed,” the minutes of the meeting read, “that we re-affirm our 1951 position in opposition to the prayer and, assuming that we have counsel willing and with time to take over, that we intervene in the case.”

As soon as Rundquist returned to his office, he put in a call to William J. Butler, a former staff counsel of the American Civil Liberties Union, who had specialized in corporation law since entering private practice. Butler, a tall, stocky Harvard graduate in his middle thirties, whose four grandparents had all migrated to the United States from Ireland, and two of whose uncles were priests, was married to the daughter of Arthur Garfield Hays. An ensign in the merchant marine during World War II, he was a sailing fan who missed no opportunity to be on or near open water.

Quickly, Rundquist explained that the Union had decided to support Roth. Was Butler interested in handling such a case? He was. “I consider this prayer ruling a dangerous threat to freedom of religion” he told Rundquist. “That is why I will take the case.” Ten minutes later, the lawyer was talking to Roth. He had only one request to make of the plastics manufacturer. He would like a group of plaintiffs who represented a religious cross-section of the community and which contained no agnostics or atheists. “I’ll do my best, Mr. Butler,” Roth promised.

As soon as he returned home that evening, Roth placed advertisements in the Roslyn News and the Williston Times, asking for people who were interested in challenging the Regents’ Prayer to contact him. Within two weeks, he had assembled the names of fifty Protestants and Jews as well as one Catholic. But it wasn’t long before his list began to shrink “We found,” Roth later revealed, “that there was going to be a substantial amount of pressure and even vilification and hostility. One couple were 100 per cent with us until they spoke to their minister. Then they came to me and said, ‘We’re still with you but our minister said this is a controversial matter and we can’t join you.’” One of the project’s most enthusiastic supporters quit when his employer warned him that “it was foolish to get mixed up in controversial cases.” Finally, after two weeks of intensive effort, Roth was left with only four willing parents whose children would not graduate before the impending test case wound its way through the courts.[1]

[1] Seven years earlier, a suit challenging the reading of verses from the Bible in New Jersey public schools had been dismissed by the United States Supreme Court because all of the plaintiffs’ children had graduated before the case reached its docket.

In addition to Roth, the prospective plaintiffs whose names were given to Butler early in October were composed of three men and one woman. Steven I. Engel, a big, balding man in his late thirties, whose seven-year-old son Michael attended the Searington School, was the international sales manager for a textile firm. A precise speaker, Engel was a Reform Jew. Forty-five-year-old Daniel Lichtenstein, a manufacturer’s representative, had three children in the district’s schools. Like Engel, he was Jewish and had emigrated to Nassau County from Brooklyn. A deeply tanned, stocky man with an outgoing personality, he was a handball and bridge expert. Paradoxically, he had served as campaign manager for Mary Harte, the school trustee who had moved the adoption of the Regents’ Prayer, when she first ran for the Board of Education.

Monroe Lerner, an account executive in a Wall Street firm, was an analytical man who was not one to make any hasty decisions. Tall and balding, he had one child, seven-year-old Cynthia, who attended the Searington School. He was a member of the Ethical Culture Society. Lenore Lyons, whose husband did not share her antipathy toward the Regents’ Prayer, was a tall, dark-haired woman with three children of school age. Easily the most attractive member of Roth’s little band, Mrs. Lyons was the Religious Education Chairman at the Unitarian Church she and her family attended.

Before resorting to the courts, the prospective plaintiffs were required by law to submit a formal request to the school board asking it to rescind its July resolution adopting the Regents’ Prayer. On December 4, a letter signed by all five parents was mailed to the school district’s Administration Building in New Hyde Park. “We, and each of us,” it stated bluntly, “hereby demand that you discontinue, or cause to be discontinued, the practice instituted for the first time at the beginning of the current school year of having a prayer said daily following the Salute to the Flag in all the schools of the district, and particularly the schools which our children attend.” The prayer, the letter continued, was “a violation of the Constitution of the United States and of the State of New York.”

On January 6, 1959, Florence Alnwick, the clerk of the Board of Education, wrote to Butler. “As you are probably aware,” she said, “the Education Law confers certain authority upon the Board of Education and pursuant thereto the Board of Education on July 8, 1958, adopted a resolution authorizing and directing the daily use of the Regents’ recommended prayer, to which you refer, in the schools within the district.” Accordingly, she had been directed by the Board of Education to advise the lawyer that no further action on the subject of the prayer was contemplated.

While he had been waiting for the Board’s reply, Butler had not been idle. Anticipating a negative response, he had began preparing a petition to the Nassau County Supreme Court shortly after his five plaintiffs had been selected. By year’s end, he had, with the aid of his partner, Stanley Geller, whose resemblance to Gregory Peck was startling, finished his labors and, two days before receipt of the board’s letter, the petition was verified by Roth and his fellow plaintiffs. Addressed to William J. Vitale, Jr., Philip J. Fried, Mary Harte, Anne Birch and Richard Saunders, the members of the Board of Education, it asked the court to direct them “to discontinue or cause to be discontinued in the schools of said district the saying of the prayer designated as the Regents’ Prayer.”

In the main, the plaintiffs claimed that “the saying of said prayer and the manner and setting in which it is said,” violated both the Federal and State Constitutions. According to them, District Superintendent Peck had established a daily ritual for saying the Regents Prayer. “Each morning at the commencement of each day in each school following the salute to the Flag,” their petition read, “the said prayer is said aloud. The prayer is led by the teacher or by a student selected by the teacher with the other students joining therein. The prayer is said with the hands clasped together in front of the body, fingers extended and pointed upwards in the manner of a suppliant. During the saying of the prayer, no student is permitted to leave the classroom.”

On February 18, the school board served its answering papers on Butler. Represented by handsome, dark-haired Bertram B. Daiker of the Port Washington law firm of Gunn, Neier & Daiker, it denied that the saying of the Regents’ Prayer violated either the United States or the New York Constitutions. Moreover, it claimed that, not only did the petitioners lack the power “to interfere with the saying of the prayer by the children of others under the color of judicial process or otherwise,” but that their lawsuit, if successful, would be tantamount to an interference with freedom of religion.

An affidavit by William J. Vitale, Jr., the dapper president of the school board, accompanied the latter’s answer. Vitale pointed out that, since the beginning of the school year, only one parent had requested that his child be excused from the saying of the prayer. In addition, no child had asked to leave the room during the prayer. As for the petitioners’ claim that children had been forced or shown how to pray, this was simply not the case. “On the contrary,” he said, “the principals and teachers in the School District have been directed and are following the directions that under no circumstances shall a pupil in any way be made or encouraged to join in the prayer and no teacher has instructed the pupils how they are to hold their hands or otherwise conduct themselves during the saying of the prayer.”

Both as a school board member and a father, Vitale felt that the prayer was beneficial. “I am fully conscious of the need for instilling in the youth of today some recognition of the moral and spiritual values which are part of the heritage of this country and of this state,” he argued. “The brief moment of prayer, by those who join in it at the opening of school each day, cannot help but remind those children, in the words of our State Constitution, that by acknowledging their dependence on God, they may ‘secure’ the blessings of Freedom granted by Almighty God.”

With the issue clearly joined, interest in the pending case began to develop rapidly. On February 24, sixteen residents of the school district applied for the right to intervene in support of the Regents’ Prayer. Speaking through their attorney, tall and articulate Porter R. Chandler, a former president of the Guild of Catholic Lawyers, they maintained that they had sufficient interest in the retention of the prayer to be allowed to participate. Although Butler objected strenuously to their motion, it was swiftly granted by Judge Bernard S. Meyer. The intervenors’ participation, however, was limited to the merits of the constitutional questions raised by the petitioners.

While they were waiting for their case to be argued, the plaintiffs had good cause to recall Rundquist’s warning to Roth in September. From the time their suit became known, all five were harrassed by threatening letters and telephone calls. One caller told Roth that an organization known as the Union Street Benevolent Society was preparing to bomb his home. On many nights, the plastics manufacturer was forced to take his telephone receiver off the hook in order to sleep. “We’re going to blow up your car,” one gruff voice said. “Keep your eyes on your children,” another warned.

On February 24, the contentions of all the parties were argued before Judge Meyer in the spacious county courthouse on Mineola’s Old Country Road. It took the tall, youthful-appearing judge exactly six months to reach his decision. In a sixty-six-page opinion, he came to the conclusion the school board’s resolution did not violate the federal or state constitutions. In particular, he stressed that “the recognition of prayer is an integral part of our national heritage [and] that prayer in the schools is permissible, not as a means of teaching ‘spiritual values,’ but because ... at the time of the adoption of the First and Fourteenth Amendments this was the accepted practice.”

However, he did find fault with the board’s resolution of July 8, 1958, which directed “that the Regents’ prayer be said daily in our schools.” Because the resolution was couched in what he called “mandatory terms,” Meyer ordered Vitale and his fellow board members to modify it so as “to establish a procedure whereby the parents of each child are advised of the adoption of the resolution calling for the saying of prayer, of the wording of the prayer and of the procedure to be followed when it is said and requested to indicate whether the child shall or shall not participate in the exercise.” The case was “remanded to the Board of Education for further proceedings not inconsistent with this opinion.”

At the end of his long opinion, the judge thanked all the lawyers involved “for the excellent presentation, not only in oral argument, but in the original and supplemental briefs.” In closing, he referred to an 1837 opinion of the Superintendent of Common Schools of the State of New York. “Written one hundred and twenty years ago,” he said, “the following statement, in the Court’s view, most completely conforms to the requirements of both constitutional law and reason: ‘The simple rule, so to exercise your own rights as not to infringe on those of others, will preserve equal justice among all, promote harmony, and insure success to our schools.’”

Ten days after Judge Meyer’s decision, the school board took steps to comply with the latter part of his order. In a brief regulation, teachers were directed to refrain from commenting “on participation or non-participation in the exercise.” In addition, children whose parents had submitted written requests to the principals of their schools were “to be excused from participating or from the room during the prayer exercise.” Five days later, each parent in the district received a letter from District Principal Peck. After setting forth the prayer, Mr. Peck informed his addressees that “any parent or guardian who does not wish his child to say the prayer is requested to write a letter to the principal of the school his child attends, indicating whether he wants his child excused from the room or to remain silent while the prayer is being said.”

In October, Butler appealed to the Appellate Division of the Supreme Court. During the year that intervened before the case was finally argued before the five-judge court, the school board asked Judge Meyer to dismiss the proceeding on the merits. According to Philip J. Fried, who, on July 1, had succeeded Vitale as the board’s president, Peck’s letter to the district’s parents fully complied with Meyer’s decision and there was no longer any reason for delaying the inevitable. Meyer bowed to Fried’s inescapable logic. On March 17, 1961, he stated: “It appearing to the court that respondent has complied with the directions contained in the opinion of this court in this proceeding dated August 24, 1959, it is ordered that this proceeding be and is dismissed on the merits.”

In opposing the board’s motion, Roth et al claimed that Peck’s letter did not cure the fundamental defects involved in the saying of the Regents’ Prayer. “Petitioners maintain,” they said, “that the saying of the so-called ‘Regents’ Prayer’ in the schools ... at the direction of and under the auspices of the Board of Education, violated the Constitutions of both this State and the United States. They maintain that the matter of the prayer is not within the cognizance of the Board and should not have been remanded to respondents for further action. They do not believe, therefore, that any actions taken by respondents on remand could have cured the fatal defects in the saying of the Prayer. Indeed, petitioners submit that any actions taken by respondents since remand constitute an additional violation or additional violations of the State and Federal Constitutions.”

On October 17, the Appellate Division refused to disturb Judge Meyer’s ruling. Four of the judges agreed fully with Meyer’s opinion. Associate Justice George J. Beldock, however, although in favor of retaining the school prayer, minced no words in declaring that he did not subscribe to the lower court’s reasons for denying the petition. In particular, he found fault with Meyer’s rationale that he was sustaining the prayer because it was “the accepted practice” before the adoption of the federal constitution. As far as he was concerned, the prayer was not religious training and, therefore, was not prohibited by the Constitution. This, he concluded, is what Judge Meyer should have stated in no uncertain terms.

On May 25, 1961, Butler, Chandler and Daiker journeyed to Albany to appear before the Court of Appeals, New York’s highest tribunal. There, together with attorneys for the Board of Regents and the American Jewish Committee, they argued the pros and cons of the school prayer issue. Six weeks later, Chief Judge Charles S. Desmond, speaking for himself and four of his colleagues, affirmed Meyer’s decision. In a brief opinion, he stated that a belief in God “has been maintained without break from the days of the Founding Fathers to the day of the inauguration of President Kennedy.”

He insisted that the Regents’ Prayer did not in the least infringe on the rights of minorities. “Belief in a Supreme Being is as essential and permanent a feature of the American governmental system,” he emphasized, “as is freedom of worship, equality under the law and due process of law. Like them it is an American absolute, an application of the natural beliefs on which the Republic was founded and which in turn presuppose an Omnipotent Being.” Although he was uncertain as to the eventual success of the prayer service, he heartily approved of the motives of both the Regents and the Herricks School Board.

But, for the first time since the case had started its long, tortuous climb up the judicial ladder, there was a dissent. Two of the seven judges, Marvin R. Dye and Stanley H. Fuld, agreed with Butler’s contention that the prayer was unconstitutional. “In sponsoring a religious program,” they said, “the State enters a field which it has been thought best to leave to the church alone. However salutary the underlying purpose of the requirement may be, it nonetheless gives to the State a direct supervision and influence that overstep the line making the division between church and state and cannot help but lead to a gradual erosion of the mighty bulwark erected by the First Amendment.” For this reason, Dye and Fuld felt that the school board should have been ordered to discontinue the use of the Regents’ Prayer.

The way was now clear for Butler to ask the United States Supreme Court to consider the case. On October 4, 1961, he filed a petition for a writ of certiorari, a necessary prerequisite to an appeal. Two months later, in a brief order, the nine justices granted the writ. Three years, two months and twenty-five days after the board of the New York Civil Liberties Union had voted to support Roth, the case, which was now officially known as No. 468 of the high court’s October Term, 1961, had finally reached Washington.

Oral arguments in the Supreme Court’s stately first-floor courtroom took place on April 3, 1962. In addition to the points raised by Butler, Daiker and Chandler, the attorneys general of seventeen other states joined Roger Foley, Nevada’s chief legal officer, in a brief which urged Chief Justice Earl Warren and his eight colleagues to see to it that “we shall ever remain a religious people” by sustaining the Regents’ Prayer. The Synagogue Council, the American Jewish Committee, the Anti-Defamation League of B’nai B’rith and the American Ethical Union joined Butler in asking for a reversal of the lower court decisions.

The latter commenced his argument by reciting the Regents’ Prayer. “What’s wrong with that?” interrupted Justice Harlan. “There’s nothing wrong with that,” Butler replied. “We have no objection to the prayer as such. I have come before this court to defend, not attack religion. Our objection is to the use of public facilities for religious purposes.”

Frankfurter, who was destined to be disabled by a paralyzing stroke three days later, broke in. “I want you to be perfectly candid with me, Mr. Butler,” he piped. “Do you think the public school system should be secularized?” The lawyer thought for a moment. “Yes, I do,” he responded, “because, on balance, the threat to religious freedom is so great that I would rather have secularization than the state in the business of religion.”

Justice Brennan had one question. Did Mr. Butler think that there was any distinction between teaching religion and teaching about religion? He did. “The first is objectionable,” he said. “The second is the duty of the state.” Potter Stewart asked whether there was any difference between the prayer and the Salute to the Flag. Butler didn’t hesitate. “There certainly is,” he replied. “The prayer is a religious utterance and the salute a political one.”

During Daiker’s presentation, Warren wanted to know whether the school board’s attorney considered the Regents’ Prayer a religious exercise. “No, I do not,” the lawyer replied. “It is merely an expression of the spiritual heritage of our nation, that the Founding Fathers believed in God.” The Chief Justice smiled. “I would expect you to take that position,” he commented wryly. Black had one question for Chandler. Would he have any objection to the prayer had it been a Mohammedan one? “I would, your Honor,” he answered. “A Mohammedan prayer does not reflect the spiritual heritage of this country.”

Monday, June 25, 1962, was the last decision day before the Supreme Court adjourned for the summer. It also marked the end of Associate Justice Hugo L. Black’s twenty-fifth consecutive term of court. In a brief ceremony before attending to his crowded calendar, Warren commended Black for his long service. “Of the ninety-seven justices who have been appointed to the court,” he observed, “only sixteen have served as long as Mr. Justice Black and none with greater fidelity or singleness of purpose. His unflagging devotion has been to the Constitution of the United States.” Black, who apparently had not been informed in advance of the intended tribute, slumped in his seat as the Chief Justice spoke.

The prayer ruling was the first of seventeen to be announced by the court. Authored by Black, the fifteen-page majority opinion came to the conclusion that New York’s use of the public school system to encourage recitation of the Regents’ Prayer was “wholly inconsistent” with the First Amendment’s stricture against any law “respecting an establishment of religion.” “The constitutional prohibition against law respecting an establishment of religion,” Black wrote, “must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.” Accordingly, the judgment of the Court of Appeals was reversed by a vote of six to one.[2]

[2] Justices Frankfurter and White took no part in the decision, the former being ill and the latter having just been named to the court by President Kennedy.

His opinion finished, Black looked up from the papers in front of him. “The prayer of each man from his soul,” he said in a low voice, “must be his and his alone. That is the genius of the First Amendment. If there is any one thing in the First Amendment, it is that the right of the people to pray in their own way is not to be controlled by the election returns.”

As the reporters rushed for the telephones in their basement press room, Justice William O. Douglas began reading portions of a concurring opinion which, while wholly in favor of the case’s result, went much further than Black. As Douglas saw it, the Constitution prohibited any form of “religion-financing” by government. This would include chaplains in the armed forces, compulsory chapel at West Point and Annapolis, federal or state aid to parochial schools, the use of the Bible to administer oaths and the inclusion of God in the Pledge of Allegiance. “Our system at the federal and state levels is presently honeycombed with such financing,” he said. “Nevertheless, I think it is an unconstitutional undertaking whatever form it takes.”

He wanted it clearly understood that his reasoning did not stem from any hostility toward religion. “The First Amendment leaves the government in a position not of hostility to religion but of neutrality,” he explained. “The philosophy is that the atheist or agnostic—the non-believer—is entitled to go his own way. The philosophy is that if government interferes in matters spiritual, it will be a decisive force. The First Amendment teaches that a government neutral in the field of religion better serves all religious interests.”

Mr. Justice Stewart was the only member of the court to voice a dissent. “I think the Court has misapplied a great constitutional principle,” he declared. “I cannot see how an official religion is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our nation.” His brief opinion ended with the observation that the patriots who signed the Declaration of Independence did so with a self-styled “reliance on the Protection of Divine Providence.”

The majority decision caused an immediate reaction. George Andrews, an outraged Alabama Congressman, complained that “they put the Negroes in the schools and now they’ve driven God out.” New York’s Governor Nelson Rockefeller, who apparently hadn’t read or understood Black’s opinion, hoped that “adjustments” could be worked out that would make the prayer acceptable to the Supreme Court. Francis Cardinal Spellman was “shocked and frightened that the Supreme Court has declared unconstitutional a simple and voluntary declaration of belief in God by public school children.” On the west coast, James Francis Cardinal McIntyre, the Archbishop of Los Angeles, called the decision “positively shocking and scandalizing to one of American blood and principle.”

Evangelist Billy Graham was “shocked and disappointed” by what he called “another step toward secularism in the United States.” Right Reverend James A. Pike, Bishop of the Protestant Episcopal Diocese of California and a lawyer himself, said that he was surprised to see that the Warren Court had extended “to an obviously non-sectarian prayer the prohibition against ‘the establishment of religion,’ clearly intended by our forefathers to bar official status to any particular denomination or sect.” Representative John Bell Williams of Mississippi called the decision part of “a deliberate and carefully planned conspiracy to substitute materialism for spiritual values.” To Senator Herman E. Talmadge of Georgia, it was “an outrageous edict which has numbed the conscience and shocked the highest sensibilities of the nation.” The Alabama legislature quickly passed a resolution terming it “diabolical.”

Herbert Hoover and many other prominent Americans demanded an immediate amendment to the Constitution nullifying the prohibition against the prayer. “The Congress should at once submit an amendment which establishes the right to religious devotion in all governmental agencies,” the former President said angrily. Representative Roy A. Taylor of North Carolina, a Baptist deacon, complied at once. His proposed amendment was as definite as it was brief. “Notwithstanding the First and Fourteenth Amendments to the Constitution of the United States,” it read, “prayers may be offered and the Bible may be read in connection with the program of any public school in the United States.” Senator James O. Eastland announced that the Senate Judiciary Committee would meet at once to consider proposed amendments.

But the decision was not without its supporters. Dr. Sterling M. McMarrin, United States Commissioner of Education, felt that the outlawing of the prayer was no loss to religion. “Prayer that is essentially a ceremonial classroom function,” he explained, “has not much religious value.” Dr. Edgar Fuller, Executive Secretary of the Council of Chief State School Officers, stated that, “in my judgment, the Supreme Court is right.” Senator Jacob K. Javits of New York reminded parents that there was “plenty of opportunity to inculcate religious faith in the children at home and at weekend religious schools.” Rev. Dr. Dana McLean Greeley, president of the Unitarian Universalist Association, said that “the Supreme Court has acted clearly in support of the principle of the separation of church and state as guaranteed by the First Amendment of the Constitution.”

In Chicago, Dean M. Kelly, director of the National Council of Churches’ Department of Religious Liberty, was enthusiastic about the court’s action. “Many Christians,” he claimed, “will welcome this decision. It protects the religious rights of minorities and guards against the development of ‘public school religions’ which is neither Christianity nor Judaism, but something less than either.” At his press conference on June 27, President Kennedy said that he hoped that the decision would come as “a welcome reminder to every American family that we can pray a good deal more at home, we can attend our churches with a good deal more fidelity, and we can make the true meaning of prayer much more important in the lives of all of our children.”

In their own area, the victorious plaintiffs were disconcerted by the violence of the attack on the decision. Representative Frank J. Backer, a Nassau County Congressman, called it “the most tragic in the history of the United States.” William A. Bruno, a trustee of the nearby Hicksville Board of Education, said that his district would retain the prayer. “Let’s see what the Supreme Court will do about that!” he chortled. He told a reporter for The New York Times that the ruling proved that Robert Welch, the founder of the Birch Society, “had the right idea in asking for the impeachment of the Supreme Court.” Robert S. Hoshino, President of the mammoth Levittown School District, called the decision a victory for Communism. “Levittown will not vote out the Regents’ Prayer,” he prophesized. However, Dr. James E. Allen, Jr., the State’s Commissioner of Education, reminded recalcitrant local school boards that they would “have to enforce the Supreme Court decision immediately.”

Although they were bitterly disappointed by the case’s outcome, both Vitale and Daiker indicated that the Herricks School Board would not disobey the Supreme Court’s mandate. The former felt certain “that any of the people involved are prepared to adhere to the decision of the Court.” According to the lawyer, “the decision must be complied with.” Each man stressed the fact that no child had been forced to recite the prayer against its will. “At no time did we ever insist that a child should say it,” Vitale declared. “We set up procedures so no one would be compelled to say it and we felt sincerely we were not infringing on anyone’s constitutional rights.”

The plaintiffs were quietly jubilant over their triumph which the New York Civil Liberties Union called a “milestone” in the separation of church and state. Lenore Lyons said that the decision represented “both liberal and conservative thinking of the Supreme Court.” Engel, Lerner and Lichtenstein were “extremely happy.” Lawrence Roth, who referred to himself as “a very religious person but not a churchgoer,” viewed the case’s result as an indication of his conviction that “religious training is the prerogative of parents and not the duty of the state.” Butler claimed that the decision had helped rather than hindered religion. “In this country, with its many different faiths, religion has flourished because we have steadfastly adhered to the principle of separation of church and state,” he said. “The Supreme Court has today reaffirmed that principle.”

With the case over, Roth and his co-plaintiffs revealed that, since 1959, they had been subjected to a variety of community pressures, ranging from dirty looks to abusive telephone calls. In one house, the latter had become so vituperative that the children were forbidden to answer the phone. Many of the anonymous letters and postcards that had arrived regularly at each of the five homes were obscene, anti-Semitic or both. “Toward the end, it got so bad,” Roth said, “that my wife or I made it a point of getting the mail before the children could see it.”

Roth’s oldest son, Danny, who was now sixteen, said that his father’s leadership of the anti-prayer fight had made it very difficult for him at school. “There were arguments and pushing and name-calling,” he recalled. “In the halls, kids would yell out: ‘You’re a Commie’ or ‘Go home to Russia.’ At times I thought it might be easier for me if my father stopped what he was doing. But I never wanted him to. I believe very strongly that what he was doing was right. I’m very proud of my father, you know.”

The court’s decision heightened the bitter campaign against the plaintiffs. Not only did the number of vituperative telephone calls, letters and post cards increase, but Roth’s house was picketed by nine members of the newly formed Nationalist Party bearing signs which read: FBI, INVESTIGATE MR. ROTH! and IMPEACH THE PRO-RED SUPREME COURT. “The harassing phone calls got so bad Tuesday night,” Roth said, “that we finally had to take the receiver off the hook again. They were coming in at the rate of two calls a minute.” The anonymous callers shouted such threats as “Watch out for your child.... We’re going to blow up your car.... Don’t leave your house—something is going to happen to it.... We’ll get you.” One postcard was typical. “To the five Long Island parents,” it began. “You damn Jews with your liberal viewpoint are ruining the country.”

In addition, at least one candidate in the New York primary campaigns that began shortly after the decision, in an openly anti-Semitic appeal to Roman Catholic voters in Queens County’s Eleventh Assembly District, reminded them that the school prayer had been invalidated by persons with Jewish names. “These are the names you should know,” began a leaflet distributed by James E. McGinniss, an Independent Democrat, “Stephen Engel, Daniel Lichtenstein, Monroe Lerner, Lenore Lyons and Lawrence Roth. These people brought the legal action which resulted in the banning of the ‘prayer’ in our public schools.” Mr. McGinniss then urged registered Democrats to vote for him “if you want a public official who will remember the ‘Presence of God’ and who will sponsor and work for laws which will permit us to live and raise our children as God-fearing citizens.”[3]

[3] Mr. McGinniss was soundly defeated in the primary, running a poor third to winner Hyman J. Greenberg.

A week before the distribution of McGinniss’ fliers, the Jesuit magazine America chimed in with a warning “to our Jewish friends.” In an outspoken editorial, the weekly reminded American Jewry that, although it could not be held fully responsible for the school prayer decision, its leaders would be well advised to curb the activities of certain Jewish agencies which, the magazine claimed, hoped to secularize public life from top to bottom. “It would be most unfortunate,” the editorial concluded, “if the entire Jewish community were to be blamed for the unrelenting pressure tactics of a small but overly vocal segment within it. When court victories produce only a harvest of fear and distrust, will it all have been worthwhile?”

The Regents’ Prayer is no longer recited in the Herricks school system—or, for that matter, anywhere else in New York State. But it will be a long time before the five people whose efforts led to its invalidation will be permitted to forget that they ran counter to the strong feelings of their community. “Mr. Rundquist warned me of what we could expect,” Roth acknowledged wryly, “but we never realized how bitter the attacks on us and our families would be. But none of us are sorry that we became involved in the case. We all feel that we have had a small part in clarifying and strengthening a vital constitutional safeguard.[4] For this, we were more than willing to endure whatever came our way.”

[4] More clarification is in the offing. On October 8, 1962, the Supreme Court agreed to pass on the constitutionality of another type of school prayer. It will shortly hear argument on the validity of a regulation of the Baltimore (Md.) School Board and a Pennsylvania statute, both of which require the reading of verses from the Bible at the opening of each school day.

Bibliography

In addition to available trial transcripts, records on appeal, and magazine and newspaper articles, the following books were consulted:

A Generation on Trial, by Alistair Cooke. New York: Alfred A. Knopf, 1950

After Twelve Years, by Michael A. Musmanno. New York: Alfred A. Knopf, 1939

Attorney for the Damned. Edited by Arthur Weinberg. New York: Simon & Schuster, 1957

Clarence Darrow for the Defense, by Irving Stone. Garden City, New York: Doubleday & Company, Inc., 1941

Commonwealth vs. Sacco and Vanzetti, by Robert Perry Weeks. Englewood Cliffs, New Jersey: Prentice-Hall, Inc., 1958

Courtroom, by Quentin Reynolds. New York: Farrar, Straus & Company, 1950

Crime, Its Cause and Treatment, by Clarence S. Darrow. New York: Thomas Y. Crowell, 1922

Fair Trial, by Richard B. Morris. New York: Alfred A. Knopf, 1952

In the Court of Public Opinion, by Alger Hiss. New York: Alfred A. Knopf, 1957

Letters of Sacco and Vanzetti. Edited by Marion Denman Frankfurter and Gardner Jackson. New York: The Vanguard Press, 1950

McCarthy and His Enemies, by William F. Buckley, Jr. and L. Brent Bozell. Chicago: H. Regnery Company, 1954

McCarthyism, The Fight for America, by Joseph R. McCarthy. New York: Devin-Adair Company, 1952

Myths After Lincoln, by Lloyd Lewis. New York: Harcourt Brace & Company, 1929

Ordeal by Slander, by Owen Lattimore. Boston: Little, Brown & Company, 1950

Origin of Species, by Charles R. Darwin. Philadelphia: University of Pennsylvania Press, 1958

Reverdy Johnson, by Bernard Christian Steiner. Baltimore: Norman, Remington Company, 1914

Sacco-Vanzetti—The Murder & The Myth, by Robert H. Montgomery. Devin-Adair Company, 1960 New York

Scottsboro Boy, by Haywood Patterson. New York: Doubleday & Company, Inc., 1950

Seeds of Treason, by Ralph de Toledano and Victor Lasky. New York: Funk & Wagnalls Co., Inc., 1950

Senator Joe McCarthy, by Richard H. Rovere. New York: Harcourt, Brace & Company, 1959

Six Days or Forever, by Ray Ginger. Boston: Beacon Press, 1958

Spies, Dupes and Diplomats, by Ralph de Toledano. New York: Duell, Sloan & Pearce, 1952

The Assassination of President Lincoln and the Trial of the Conspirators. The courtroom testimony as originally compiled by Benn Pitman. New York: Funk & Wagnalls Co., Inc., 1954

The Case for Courage, by William M. Kunstler. New York: William Morrow & Co., Inc., 1962

The Case for Mrs. Surratt, by Helen Jones Campbell. New York: G. P. Putnam’s Sons, 1943

The Case of Sacco and Vanzetti, by Felix Frankfurter. Boston: Little, Brown & Company, 1927

The Case of Thomas J. Mooney and Warren K. Billings, by Henry T. Hunt. New York: National Mooney-Billings Committee, 1929

The Judgment of Julius and Ethel Rosenberg, by John Wexley. New York: Cameron & Kahn, 1955

The Judicial Murder of Mary E. Surratt, by David Miller De Witt. Baltimore: J. Murphy Company, 1895

The Lamont Case. Edited by Philip Wittenberg. New York: Horizon Press, 1953

The Legacy of Holmes and Brandeis, by Samuel J. Konefsky. New York: The Macmillan Company, 1956

The Legacy of Sacco and Vanzetti, by G. Louis Joughin and Edmund M. Morgan. New York: Harcourt, Brace & Company, 1948

The Life & Death of Sacco and Vanzetti, by Eugene Lyons. New York: International Publishers, 1927

The Rosenberg Case: Fact and Fiction, by Solomon Andhil Fineberg. New York: Oceana Publications, Inc., 1953

The Sacco-Vanzetti Case, by Osmond K. Fraenkel. New York: Alfred A. Knopf, 1931

The Scottsboro Case. New York: The Scottsboro Defense Committee, 1936

The Story of my Life, by Clarence Darrow. New York: Charles Scribner’s Sons, 1932

The Strange Case of Alger Hiss, by Earl Jowitt. Garden City, New York: Doubleday & Company, Inc., 1953

The Untried Case, by Herbert E. Ehrmann. New York: The Vanguard Press, 1933

The World’s Most Famous Court Trial. Cincinnati: National Book Company, 1925

They Shall be Free, by Allen Knight Chalmers. Garden City, New York: Doubleday & Company, Inc., 1951

Thirteen Days, by Jeanette Augustus Marks. New York: A. C. Boni, 1929

Treason, by Nathaniel Weyl. Washington, D. C.: Public Affairs Press, 1950

Trial by Prejudice, by Arthur Garfield Hays. New York: Covici Friede, 1933

Trial by Television, by Michael W. Straight. Boston: Beacon Press, 1954

Was Justice Done?, by Malcolm P. Sharp. New York: Monthly Review Press, 1956

What Happened in the Mooney Case, by Ernest J. Hopkins. New York: Brewer, Warren & Putnam, 1932

Witness, by Whittaker Chambers. New York: Random House, 1952

Index

(First case references only)

A
Abel, Louis, 192
Abt, John, 138
Adams, Lee, 125
Adams, Samuel, 206
Affe, Carlos M., 94
Aiken, Frederick, 6
Allen, James E., Jr., 226
Alnwick, Florence, 215
America, 228
American Civil Liberties Union, 103
American Ethical Union, 221
American Jewish Committee, 220
Anderson, Walter, 159
Andrews, Bert, 153
Andrews, George, 224
Andrews, Lola R., 66
Andrower, Guiseppe, 94
Anti-Defamation League, 221
Appell, Donald T., 153
Arnold, Benedict, 166
Arnold, Samuel, 4
Arrogani, Harry, 85
Atomic Energy Act, 193
Atzerodt, George A., 4
B
Backer, Frank J., 226
Bailey, H. G., 122
Baldwin, Roger, 103
Barnes, Joseph K., 3
Barrett, Tracy F., 45
Bates, Ruby, 120
Bautista, Dora, 190
Beamish, Richard, 110
Beauregard, P. G. Toutant, 15
Behrsin, Hans, 70
Beldock, George J., 220
Benson, J. S., 130
Bentley, Elizabeth, 139, 190
Benton, William, 196
Berardelli, Alessandro, 68
Berle, Adolph A., Jr., 138
Bernhardt, George, 186
Billings, Warren K., 88
Binger, Carl, 162
Bingham, John A., 12
Birch, Anne, 216
Black, Hugo L., 222
Bloch, Alexander, 174
Bloch, Emanuel, 174
Boda, Mike, 74
Bohr, Neils, 178
Bonjionanni, Adeladi, 76
Booth, John Wilkes, 2
Bosco, Albert, 93
Bostock, James E., 68
Brady, Matthew, 64
Brennan, James M., 45
Brennan, William J. Jr., 222
Brenner, William, 82
Bridges, R. R., 124
Brini, Alphonsine, 91
Brini, Beltrando, 76
Brini, LeFavre, 92
Broadway, Jim, 125
Brodsky, Joseph R., 128
Brooks, Georgina, F., 76
Brophy, John P., 20
Bruno, William A., 226
Bryan, William Jennings, 103
Bryan, William Jennings, Jr., 107
Buckley, David, 73
Budenz, Louis, 198
Bunner, Stephen, 37
Burke, Frank J., 71
Burns, Francis, 2
Burns, James E., 86
Burns, William J., 33
Burrs, L. J., 128
Butler, John Washington, 102
Butler, William J., 213
Bykov, Colonel, 153
C
Caldwell, Hamlin, 129
Callahan, William Washington, 134
Calvert, George H., Jr., 10
Campbell, Alexander, 153
Campbell, Julia, 66
Cantlin, John, 20
Caplan, Esther, 59
Carasso, Leon, 59
Carland, Louis, 20
Carr, Frank, 198
Carrigan, Mark, 68
Carter, Edward, 79
Carter, Lester, 121
Cartwright, L. M., 105
Cashin, N. E., 130
Catlett, Burnetta, 162
Catlett, Claudie, 160
Catlett, Perry, 160
Catlett, Raymond, 160
Chambers, David Whittaker, 137
Chambers, Esther, 157
Chamlee, George W., 127
Chamlee, George W., Jr., 127
Chandler, Porter R., 217
Chavez, Dennis, 205
Cherner Motor Company, 150
Civic Biology, 108
Clampitt, John W., 6
Clark, William, 3
Clarvoe, John, 3
Cockran, W. Bourke, 45
Cohn, Roy M., 196
Colburn, Frederick H., 38
Cole, Austin C., 79
Collins, Henry, 144
Collins, Timothy J., 79
Compton, Janice, 55
Conger, Everton, 2
Conley, Jim, 26
Connolly, Michael J., 89
Conrad, Joseph, 193
Constantino, Dominic, 82
Corbett, Boston, 2
Cottingham, George, 13
Cox, Evelyn, 192
Crane, Arthur H., 54
Cresafulli, Mario, 57
Cresafulli, Mrs. Mario, 57
Crosley, George, 143
Cross, Claude B., 166
Crowley, John M., 44
Crump, William B., 45
Cunha, Edward A., 45
Cutler, Rebecca, 57
D
Dahl, Fannie, 55
Daiker, Bertram B., 216
Daly, William H., 96
Danziger, William, 187
Darrow, Clarence S., 104
Darrow, Ruby, 111
Davis, Jefferson, 7
Davis, John W., 106, 159
De Beradinis, Louis, 72
De Caccia, Alphonse, 45
De Lorenzo, Julia, 57
De Los Rios, Manuel Giner, 188
Dempsey, John W., 15
Dennis, Glenn, 190
Dentamore, Antonio, 93
Desmond, Charles S., 220
Devlin, Frances J., 84
Di Carli, John, 76
Dies, Martin, 205
Dobbins, T. L., 125
Doidge, Thomas U., 55
Dolan, John A., 52
Dolbeare, Harry E., 66
Dollard, Charles, 145
Donaldson, Peter, 105
Donegan, Thomas J., 154
Dorsey, Hugh M., 29
Doster, William E., 15
Douglas, William O., 192, 223
Dulles, John Foster, 163
Dunne, Frank H., 44
Dye, Marvin R., 221
E
Eastland, James O., 225
Edeau, Nellie, 44
Edeau, Sadie, 44
Edelman, Irvin, 193
Eisenhower, Dwight David, 193, 196
Eisler, Gerhard, 164
Elitcher, Max, 174
Ellis, Claude O., 61
Engel, Michael, 214
Engel, Steven I., 214
Eris, Louis, 55
Espinosa, Minerva Bravo, 189
Espionage Act, 193
F
Fahy, Charles, 159
Falzini, Luigi, 94
Faulkner, John M., 67
Fay, George W., 81
Feehan, Ramos S., 159
Ferguson, Lawrence D., 71
Fickert, Charles M., 38
Field, Frederick, 204
Fields, Noel, 167
Fiochi, Margaretta, 76
Fitzgerald, J. Henry, 86
Fitzpatrick, Honora, 15
Flanders, Ralph E., 204
Foley, Roger, 221
Folliard, Edward T., 152
Fosdick, Harry Emerson, 132
Fraher, Thomas F., 87
Frank, Leo M., 24
Frankfurter, Felix, 99, 159, 222
Frantello, Albert, 68
Fried, Philip, J., 216
Fuchs, Klaus Emil Julius, 170
Fuld, Stanley H., 221
Fuller, Alvan T., 100
Fuller, Edgar, 225
G
Gallivan, Jeremiah F., 74
Geller, Stanley, 216
Gerard, George A., 77
Gilley, Orville, 121
Gilley, Sam, 126
Goddard, Henry W., 166
Gold, Harry, 171
Golos, 190
Goodridge, Carlos E., 72
Gould, Roy E., 71
Gouzenko, Igor, 170
Graham, Billy, 108, 224
Graham, J. M., 76
Grant, Robert, 100
Grant, Ulysses S., 1
Graves, Bibb, 135
Greeley, Dana McLean, 225
Green, Sam, 57
Greenberg, Hyman J., 228 (fn)
Greenglass, David, 172
Greenglass, Ruth, 172
Griffin, Franklin A., 45
Guadagni, Felici, 93
Guerin, Daniel T., 87
Guidobone, Angel T., 92
Guild of Catholic Lawyers, 217
Gullender, Elsie, 147
Gunn, Neier & Daiker, 216
Gwynn, B. F., 17
H
Hamilton, Albert H., 97
Hammersburg, Belle, 58
Hancock, John, 206
Hancock, W. S., 22
Hand, Draper H., 53
Harlan, John Marshall, 221
Harris, Clara, 2
Harris, H. F., 33
Harris, T. M., 6
Harte, Mary, 215
Hartranft, General, 6
Hatcher, Earl, 62
Hatcher, Mrs. Earl, 62
Hathaway, Clarence, 199
Hawk, Harry, 2
Hawkins, Alf E., 122
Hays, Arthur Garfield, 27, 107, 214
Hébert, F. Edward, 139
Henry, Henri P., 161
Hepburn, Richard, 159
Herold, David E., 4
Heron, William J., 67
Hiss, Alger, 138, 195
Hiss, Donald, 140
Hiss, Priscilla, 139
Hobson, Timmy, 140
Hollfender, Charles F., 55
Holmes, Oliver Wendell, 35, 100, 165
Holahan, Eliza, 18
Holohan, John T., 19
Holt, Joseph, 5
Hon, Will George M., 40
Hoover, Herbert, 225
Hopkins, Daisy, 29
Horton, James E., 129
Howell, Dewie, 32
Hoxton, John, 18
Hoxton, William, 18
Huggins, James S., 190
Hughes, Charles Evans, 134
Hughes, Peter T., 43
Hunter, David, 6
Hunter, George William, 108
Hunting, Nathaniel S., 85
Hutchison, William K., 110
I
Iacovelli, Henry, 94
Inslerman, Felix, 155
International Defense League, 127
Iscariot, Judas, 165
J
Jackson, Irene, 33
Javits, Jacob K., 225
Jenkins, Zad, 17
Jesse, Frank, 91
Johnson, Andrew, 4
Johnson, Reverdy, 6
Johnson, Simon, 74
Johnson, Mrs. Simon, 75
Johnston, Joseph E., 1
Jones, John Paul, 213
K
Katzmann, Frederick A., 76
Kaufman, Irving R., 174
Kaufman, Samuel H., 154
Keeler, Leonardo, 145
Keene, Laura, 1
Kelleher, Julie, 73
Kelley, George T., 87
Kelly, Dean M., 225
Kelly, Thomas V., 192
Kennedy, John F., 220
Kidwell, Alice, 42
Kirsch, Benjamin, 57
Kistiakowski, George B., 178
Kluttz, Jerry, 153
Knapp, Hetta, 40
Kneese, Henry, 40
Knight, Thomas, Jr., 129
Kohlberg, Alfred, 163
Kuchel, Thomas H., 206
Kuntz, Edward, 174
Kurlansky, Harry, 81
Kytka, Theodore, 56
L
LaBreque, Alfred N., 80
Lamont, Corliss, 196
Lamont, Thomas W., 201
Langlois, Edgar C., 71
Langer, William, 204
La Posee, Charlotte, 60
Latham, T. N., 125
Lattimore, Owen D., 195
Laulor, John, 45
Lawlor, John C., 57
Lee, Newt, 25
Lee, Robert E., 1
Leger, Camille, 57
Lehman, Herbert H., 204
Leibowitz, Samuel S., 129
Lerner, Cynthia, 215
Lerner, Monroe, 215
Levangie, Michael, 72
Levine, Nathan, 152
Levitov, Edith, 188
Lichtenstein, Daniel, 215
Like, Irving, 197
Lincoln, Abraham, 1
Lincoln, Eunice, 159
Lincoln, Mary Todd, 1
Liscomb, Barbara, 70
Lloyd, John M., 10
Lockey, Ira, 160
Loring, Fred L., 74
Lowell, Abbott Lawrence, 100
Lumbard, J. Edward, 207
Lusby, James, 17
Lynch, M. H., 124
Lyons, Lenore, 215
M
MacNevin, William V., 46
Magazu, Peter, 85
Magrath, George B., 85
Malaquci, Terese, 76
Malone, Dudley Field, 107
Manganio, Andrew, 85
Manhattan District Project, 171
Marbury, William, 153
Marlow, Vernon, 162
Massing, Hede, 164
Masterson, Maud, 55
Matheson, Duncan, 37
May, Allan Nunn, 170
McAnarney, Jeremiah J., 77
McAnarney, Thomas F., 77
McCarthy, Bridget, 209
McCarthy, Henry, 79
McCarthy, Joseph Raymond, 193
McCarthy, Timothy, 209
McClellan, George, 15
McClendon, Ennis, 131
McCullum, Peter, 82
McDonald, John, 42
McDougall, Jimmy, 52
McDowell, John R., 139
McGuiness, James E., 228
McGlone, James E., 70
McGohey, John F. X., 153
McIntyre, James Francis Cardinal, 224
McLean, Edward C., 154
McMarrin, Sterling M., 225
McNutt, Maxwell, 46
Medeiros, Celestino, F., 98
Meet the Press, 152
Mencken, H. L., 107
Metcalf, Maynard, M., 112
Meyer, Bernard S., 217
Migram, H. C., 53
Miller, B. M., 122
Mitchell, Sam, 125
Monello, Angelo, 93
Monroe, Dora, E., 63
Montgomery, Olen, 122
Moody, Jefferson E., 129
Moody, Milo, 123
Mooney, Rena, 39
Mooney, Thomas V., 38
Moore, Earl R., 40
Moore, Frederick H., 77
Morgan, Howard, 111
Morgan, J. P., 196
Morgan, Luke, 111
Morgan, R. C., 15
Morning, Noon and Night, 15
Morris, Luther, 125
Morse, Wayne, 206
Mosely, Travis, 130
Moss, Annie Lee, 209
Moss, Maximillian, 213
Moss, Mora, J., 55
Mudd, Samuel A., 4
Mundt, Karl, 138
Murphy, Francis J., 74
Murphy, James L., 62
Murphy, Thomas F., 154
Murray, Edith, 168
N
National Council of Churches, 225
Neal, John Randolph, 106
Neal, Shelley A., 65
New York Civil Liberties Union, 211
Nixon, Richard M., 139, 207
Norris, Clarence, 122
Nothey, John, 8
Nott, Joe, 17
Novelli, Jennie, 90
Nye Committee, 147
O
Offutt, Emma, 13
O’Laughlin, Michael, 4
On Board, 211
O’Neil, Daniel J., 71
Oppenheim, E. Phillips, 182
Oppenheimer, J. Robert, 178
Orciani, Ricardo, 74
Otis, James, 206
Oxman, Frank C., 49
P
Pagano, Helen, 192
Parker, John F., 2
Parmenter, Frederick A., 66
Pasternak, Max, 188
Patterson, Haywood, 122
Patterson, William, 129
Payne, Lewis, 4
Peay, Austin, 103
Peck, Gregory, 216
Peck, Lester, 211
Pelser, Lewis, 70
Peress, Irving, 197
Peters, J., 140
Peterson, Walter, J., 61
Peterson, William, 3
Phagan, Mary, 25
Phillips, Harold M., 174
Pickett, J. E., 130
Pierce, Winifred H., 71
Pike, James A., 224
Pincus, Henry, 45
Pirk, Mary, 34
Pitman, Benn, 6
Pollak, Walter H., 128
Potter, Charles Francis, 109
Powell, Ozie, 122
Presley, Henry, 131
Pressman, Lee, 138
Price, Victoria, 120
Proctor, William H., 85
Proll, William R., 54

Psychological and Cultural Traits of Soviet Siberia, 198

Q
Quinn, Lemmie, 30
Quinn v. United States, 207
R
Rabinavicius, Henrikas, 167
Rankin, John, 139
Ransford, P. T., 19
Rappelyea, George W., 103
Rath, Christian, 22
Rathbone, Henry Reed, 2
Raulston, John T., 104
Raushenbush, Stephen, 147
Reed, Austin T., 73
Reed, Stanley, 159
Reeves, Instrument Corporation, 175
Regents’ Prayer, 210
Reisman, E. E., 132
Ricci, Dominick, 94
Rigall, F. E., 59
Riley, Jim, 108
Ripley, Walter R., 77
Roan, L. S., 27
Robbins, Orry, 125
Roberson, Willie, 122
Roberts, Hilbert, 58
Robinson, Mrs. Bill (Bonjangles), 136
Robinson, F. E., 103
Rockefeller, Nelson, 224
Roddy, Stephen W., 122
Rogers, Will, 115
Rogge, O. John, 174
Rominger, Louis, 41
Rosen, Joseph, 92
Rosen, William, 151
Rosenberg, Ethel, 173
Rosenberg, Julius, 173
Rosenblatt, Harry, 57
Roth, Daniel, 211
Roth, Joseph, 211
Roth, Lawrence, 211
Roulhac, George Norman, 167
Rousseau, Tom Taylor, 125
Rovere, Richard H., 209
Rundquist, George, 211
Russell, Louis J., 147
Ryan, John, 19
S
Sacco, Nicola, 74
Salsedo, Andrea, 91
Saltonstall, Leverett, 205
Sand, Marvin, 188
Sanders, Walter, 120
Saunders, Richard, 215
Sayre, Francis, 159
Saypol, Irving H., 172
Scavitto, Joseph, 80
Schapiro, Meyer, 157
Schine, G. David, 196
Schneider, Ben, 192
Schwellenbach, Lewis B., 146
Scopes, John Thomas, 103
Scott, Harry, 27
Scott, John, 74
Scottsboro Defense Committee, 134
Semus, Rachel, 18
Seward, William H., 3
Shaw, Maynard Freeman, 76
Shelton, Harry, 111
Sidorovich, Ann, 179
Simmons, Ernest J., 198
Slaton, John H., 36
Smith, Alonzo, 63
Smith, David J., 59
Smith, Estelle, 41
Smith, Frank, 19
Smith, H. W., 4
Smith, Kirby, 1
Smith, W. Marvin, 150
Smith, William H., 61
Sobell, Helen, 189
Sobell, Morton, 173
Solt, Morton, 190
Spangler, Edward, 4
Spear, Merle A., 89
Spellman, Francis Cardinal, 224
Splaine, Mary E., 70
Stafford, David E., 40
Stanton, Edwin M., 3
Starnes, Joe, 123
Stateler, T. K., 54
Stephens, Alexander H., 15
Stephens, William D., 62
Stevens, Robert T., 203
Stewart, A. T., 108
Stewart, Michael E., 74
Stewart, Potter, 222
Stokes, Will, 127
Stop Me If You Have Heard This, 173
Stover, Monteen, 30
Stratton, Samuel W., 100
Stripling, Robert, 137
Stryker, Lloyd Paul, 154
Surratt, Anna, 18
Surratt, John H., 3
Surratt, Mary Eugenia, 3
Sutter, Simon L., 58
Swanson, Martin, 38
Sweeney, Richard, 17
Sykes, Frank, 130
Synagogue Council, 221
T
Talmadge, Herman E., 225
Taylor, Mark, 130
Taylor, Roy A., 225
Thayer, Webster, 75
The Peoples of the Soviet Union, 196
Thomas, J. Parnell, 142
Thompson, Jack R., 110
Thompson, William G., 77
Tidwell, Arthur J., 130
Tiller, Jack, 121
Timberlake, Martha, 58
Touloukian, Edward H., 157
Tracy, William S., 67
Treanor, Nicholas Hugh, 57
Turner, W. E., 32
Tydings, Millard, 195
U
Union Street Benevolent Society, 218
Unitarian Universalist Association, 225
United States v. Emspak, 205
U.S.S.R.--a Concise Handbook, 198
V
Vahey, J. P., 76
Van Amburgh, Charles, 85
Vanzetti, Bartolomeo, 74
Vaughan, Earl J., 89
Vendrell, Jose Broccado, 189
Victorson, Alexander G., 79
Vidovich, Peter, 44
Vinson, Fred, 193
Vitale, William J., Jr., 216
W
Wade, Herbert C., 41
Wade, Lewis L., 69
Wadleigh, Henry Julian, 159
Wann, C. A., 129
Wann, M. L., 122
Ward, Anna, 18
Ward, Louis H., 64
Ware, Harold, 139
Warren, Earl, 207, 221
Washington, George, 166
Watkins, Arthur V., 204
Watson, Tom, 34
Weems, Charlie, 122
Weichmann, Louis J., 3
Weinberg, Israel, 39
Weinfeld, Edward, 207
Welch, Joseph N., 203
Welch, Robert, 226
Wermerskirch, W. M., 15
Westmoreland, W. F., 33
Wheeler, William, 153
White, Byron R., 223 (fr)
White, Walter, 105
Whitman, Walt, 23
Wiget, E. F., 18
Wilde, Oscar, 34
Williams, Eugene, 122
Williams, G. Mennen, 136
Williams, Harold P., 77
Williams, John Bell, 225
Williams, John D., 93
Williams, Paul W., 208
Wilson, Woodrow, 62
Witt, Nathan, 138
Wittenberg, Philip, 197
Wohlford, Robert, 147
Womack, L. B., 130
Woodall, Arthur W., 126
Wright, Andy, 122
Wright, Roy, 122
Wright, S. S., 108
Wright, Wade, 129
Wylie, Andrew, 22
Y
Yakovlev, Anatoli A., 171
Young, James P., 19
Z
Zabotin, Nicholai, 170
Zwicker, Ralph W., 197

Transcriber’s Notes:

Variations in spelling and hyphenation are retained.

Perceived typographical errors have been changed.

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Table of Contents

- ...AND JUSTICE FOR ALL
- Introduction
- Preface
- 1
- 2
- 3
- 4
- 5
- 6
- 7
- 8
- 9
- 10
- Bibliography
- Index
- THE FULL PROJECT GUTENBERG™ LICENSE