Mesarosh v. United States

PETITIONER:Mesarosh
RESPONDENT:United States
LOCATION:Quality Photo Shop

DOCKET NO.: 20
DECIDED BY: Warren Court (1956-1957)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 352 US 1 (1956)
ARGUED: Oct 10, 1956
DECIDED: Nov 05, 1956

Facts of the case

Question

Audio Transcription for Oral Argument – October 10, 1956 in Mesarosh v. United States

Earl Warren:

Number 20, Stephen Mesarosh, also known as Steve Nelson, et al., versus United States of America on the motion of the Solicitor General to remand.

Mr. Solicitor General.

J. Lee Rankin:

May it please the Court.

This is a motion to remand this case to the District Court for an examination of the testimony of a witness, Mazzei, in the light of circumstances that occurred after the trial.

We have set out the various circumstances about five in general number in our motion.

We filed this motion because we felt that it was the duty of the Department and the Government to this Court as a lawyer before this bar and also as a prosecutor.

We think the Court is entitled to know why we delayed to this date or the date that we made the filing of the motion in presenting this matter to this — to this Court in that forum.

We think that the District Court is the proper forum in which to reexamine this testimony in the light of what occurred later.

The knowledge of this matter came to the Office of the Solicitor about 10 days before the motion was filed.

That is true also in regard to my colleagues.

Earl Warren:

Did you say a majority of your colleagues?

J. Lee Rankin:

Of all of my colleagues.

Earl Warren:

Oh, of all of your colleagues.

J. Lee Rankin:

In the Solicitor’s Office.

I will tell the Court as to how it developed in the Department and what our problems were with regard to the matter.

The first item was the one of June 18th, 1953 in regard to the testimony before the Senate Committee concerning Senator McCarthy, a plot against him, and the — Mr. Bortz and his statements before a Communist meeting in regard to handling of firearms and the construction of bombs.

That matter was developed during the trial in an interrogation of the jurors to determine the effect that it had upon for this — this witness to appear before the Committee.

It was gone into at some length by the Court and the Court appeared to be satisfied that it did not affect the trial of the case.

Then, we have the further incident —

Earl Warren:

Did the — but that the Department know then or did the Department then have reason to doubt the honesty of that statement?

J. Lee Rankin:

The problem in regard to that was that when the witness, Bortz, appeared before the Committee, he stated that if he truthfully answered the questions that the Committee asked him in regard to the testimony of Mr. Mazzei before the Committee, that it would incriminate him.

So, he had on the one hand that — the statements that raised the real problem for us as to their validity before the Committee and we had the statement of the person who was involved, Mr. Bortz, saying that any truthful answer of those questions would incriminate on the other side.

And we had the question then if whether or not that testimony, being known to the Court and the jurors, having been interrogated about would be such that it should reach back to the testimony of Mr. Mazzei in this case about the connection of the various defendants.

Hugo L. Black:

Did he say would incriminate him or might incriminate him?

J. Lee Rankin:

My recollection, would incriminate him.

Hugo L. Black:

In other words, he admitted that he — that he —

J. Lee Rankin:

That was, if I understood —

Hugo L. Black:

— admitting criminal offense?

J. Lee Rankin:

I understood the thrust of his testimony.

And if seriously, it casts serious doubt as to which one could be right, although obviously, the statements were difficult for anybody to assume their validity.

J. Lee Rankin:

But the Court did inquire into them with the jurors in this case to see if it had any effect and knew of them and examined the case in regard to them.

So, we felt that it had been before that court for its consideration as to any effect on this action.

Earl Warren:

Well, if the court below had been advised at that time that you doubted the veracity of Mr. Mazzei as to that testimony, do you think he would have acted as he did?

J. Lee Rankin:

Well, I believe he would, although I don’t think at that time, the Department doubted the veracity of Mr. Mazzei in that particular testimony because it had the testimony of Mr. Mazzei before the Committee under oath and the — the witness involved raising a doubt as to which one could have been right.

And the statements were as to what Mr. Bortz told Mr. Mazzei rather than what actually happened, except as to the instant of the Communist Party meeting and the demonstration of firearms and bombs.

So, it was — in an area, it was very difficult to prove who was correct.

Earl Warren:

But when did the Department first come to question the — the truthfulness of Mr. Mazzei in that regard?

J. Lee Rankin:

At the time that they learned of the Sheiner matter, the testimony in Florida when it became cumulative of all these things that had occurred and they reflected back and we came to the conclusion that the only sound way to examine this matter in the interest of justice was to go back and see whether or not in light of what occurred later, the testimony of Mr. Mazzei at the trial which is the matter in point, was valid or credible or not.

Earl Warren:

Do you now — do you now believe that Mr. Mazzei lied at that hearing of the Committee in which he testified to the assassination about the post assassination of Senator McCarthy?

J. Lee Rankin:

We believe that his testimony in that regard was not credible in light of what happened later.

We do not know at this point whether or not there is something psychiatric about this situation.

We are disturbed about that and I’d like to point out to the Court why.

Earl Warren:

Yes, but what — the point I’m getting at is when you get back to the — to the District Court, if you go back there —

J. Lee Rankin:

Yes, sir.

Earl Warren:

— are you going to represent to the District Court that this testimony in your opinion is untrue or that it is true?

J. Lee Rankin:

Well, some of the testimony of these later events —

Earl Warren:

No, I’m talking about this attempt to assassinate Senator McCarthy or the — the suggestion that he would be assassinated.

Are you going to — to represent to the court below that Mazzei was truthful or untruthful in that testimony?

J. Lee Rankin:

We’re going to frankly present to the court below the fact that the records that we have — the information we have does not support that testimony.

That the fact that what the testimony of Mr. Bortz before the Committee which he said would incriminate him to answer the questions and the testimony, and present the whole matter for the Court’s determination.

Earl Warren:

You mean you’re not going to take the position either in this Court or the court below as to whether Mr. Mazzei lied or not in — on that occasion?

J. Lee Rankin:

We don’t have sufficient knowledge to be sure.

Earl Warren:

What is your belief?

J. Lee Rankin:

My personal belief is that it was not truthful.

Earl Warren:

Now, that’s — that’s all.

Tom C. Clark:

How many days did the trial continue in the instance before — before the Committee?

J. Lee Rankin:

It was for several weeks as my understanding.

Counsel says that’s correct.

Tom C. Clark:

Did the Department then appraise as far as you know in his testimony as to whether or not they had evidence supporting the entire testimony or —

J. Lee Rankin:

Before the witness was presented to the Court, his testimony was carefully appraised as to whether or not it was supported by other material the Department had and he was not contradicted, although, witnesses took the stand after the defendants.

J. Lee Rankin:

His testimony was not contradicted at all and that was one of the factors that bothered the Government in connection with this subsequent — these subsequent events that have caused us to conclude this man’s testimony should be carefully reexamined by the lower court in regard to the validity at the time of the trial, because of what has occurred since which ordinarily, you know there was actual perjury.

It would not determine the validity of the testimony at the trial but they need to find what the circumstances were.

William O. Douglas:

What would the — what would the Court do (Inaudible) judgment on the remand?

J. Lee Rankin:

Well, I have in mind the procedure that was followed by Judge Dimock in connection with the Flynn case in which it seems to me the Court would examine the occurrences that relate and all of the evidence which the Department will present in regard to the files it has to the Court for its consideration to carefully determine whether or not at the time of the trial, this man’s testimony was credible.

William O. Douglas:

But that’s a jury question.

J. Lee Rankin:

Well, the question of whether or not he did fairly or whether it was credible, it seems to me, the Court could determine for himself if it’s something that he did not feel the jury should even consider because of the nature of the testimony and how it conflicted with what he stated later.

And there are also may be a factor where the Court by a careful consideration of this matter would determine that there’s a psychiatric element in this man’s testimony on how he testified in the later events, and therefore, it should not be presented or considered by the Court.

His testimony would have to be not permitted before the Court because of lack of competency as a witness.

I think that could fairly happen in this case.

Harold Burton:

All — all the knowledge that came from the Department came after this case you filed, as I understand.

J. Lee Rankin:

Except for the matters that were interrogated about like this matter before the Senate Committee.

And the Court knew of that at that time, it was brought to the attention, I think, by both parties and he then asked the jurors whether it had any effect.

Harold Burton:

But there’s no — no reason to think that the respondents here, the defendants below had any knowledge of the Florida situation — the Florida testimony.

J. Lee Rankin:

At the time of the trial?

Harold Burton:

Yes.

J. Lee Rankin:

It couldn’t have.

It occurred after the trial.

Harold Burton:

Well then, there’s been — they’ve come into the possession of information since that time.

J. Lee Rankin:

That’s right.

Harold Burton:

And yet, they have to move for a new trial.

J. Lee Rankin:

No, they haven’t moved for a new trial.

We felt that there was responsibility on the part of the Government that went beyond that question.

Harold Burton:

Certainly, it’s not criticizing or intending to criticize the —

Tom C. Clark:

Well, you asked (Voice Overlap) —

Harold Burton:

Well, it calls this to the attention of the Court (Inaudible) but whether or not the fact that I would of course recommend it, in short whether to — but the defendant is also in this case, (Inaudible) certain responsibilities and they have the same information that you have at least now.

J. Lee Rankin:

Yes.

Harold Burton:

They have not objected.

J. Lee Rankin:

That is correct.

Now, the further fact should be made known to this Court and I plan to make it known, that much of this material was known at the time of the presentation, the motion for rehearing in the Court of Appeals.

And defense counsel at that time referred to some of that material and urged the Court that the witness should not believe along with other witnesses in the case because of it, but there was no request for the matter to be returned to the trial court or to have a new trial based on that.

J. Lee Rankin:

There is a — as I get the threat of the argument, the thrust of the argument was to suggest that it should be considered as to whether or not the defendant should be acquitted, rather than to go back and carefully examine the testimony and see whether this witness was credible.

Earl Warren:

Well, Mr. Rankin, on the question of — of whether the defense moved for a new trial on the basis of this Florida evidence, did they have available to them the same information that — that you now have that cause you to disbelieve the witness, Mazzei, in this connection?

J. Lee Rankin:

No.

They never had the full evidence that we had because we had the opportunity to compare certain material that we had in the files in the preparation of the case and other matters that they didn’t have.

They drew the inferences from the action that anyone could draw, and I think they were sufficient that they could have moved for a new trial if they wanted to use it that way.

Earl Warren:

Do they have the same information that you have concerning the possible untruthfulness in the — in the McCarthy incident that happened in — at the time of the trial?

J. Lee Rankin:

No, they do not.

Earl Warren:

Is that to be made available to them if it goes back to the — the trial court?

J. Lee Rankin:

Well, that would depend on what the trial court thought should be done, I think, in the conduct of the case.

The only reason I would suggest that, possibly, it shouldn’t be made available to them as that in this whole problem, there are several people involved who might get hurt by a public hearing of their connection to this matter.

And it would be too bad and very unfortunate if it wasn’t handled so as to not injure those people when it isn’t necessary to the proper end of this problem.

Earl Warren:

Well, I can understand that, but when the case goes back, do they have to operate in the dark and without any — any knowledge of the facts you have that caused you to disbelieve this man?

J. Lee Rankin:

Well, we’ll do whatever this Court thinks we should do, but what I had in mind was to labor for the judge all of the information that the Government has about the entire matter.

And then, he can sort out and protect the various innocent persons who are described in the files and should not be hurt in such a proceeding.

And yet, give them the benefit of a full and complete protection in such a proceeding as to what the facts are in this matter.

Earl Warren:

Then you’ll try it in camera with the judge, would you?

J. Lee Rankin:

Well, I had in mind that certain portions, the judge would handle in camera so as to protect innocent people and all others that would reach into the merits of the situation would certainly be handled by the Court in such a way as to give all the parties an adequate opportunity to present their defense.

Felix Frankfurter:

Mr. Solicitor, I should like to ask you just one question.

Am I right in inferring from what you have said that you take no point and make no point of anything that the defendant did or didn’t do with reference to the matter that you call the attention of the Court?

You’re here with the discharge of what you concede the responsibility of the Government that is fully unrelated, either to the resourcefulness or the alertness or the vigor or the notion of higher educational status beyond the part of the defendant.

J. Lee Rankin:

That is correct.

If I may say one word in regard to that, I feel that the obligation of the Government in a situation of this kind reaches far beyond the rights of this particular defendant and its duty to this Court and to the country.

And that it’s our obligation in a situation of this kind to try to see that justice is done.

I believe that if this case is reexamined in regard to this witness, the trial court can properly protect the various innocent people in its procedures and has the skill by the experience in handling such matters to determine who is telling the truth and who is not, and whether there is a — a perjury involved in this situation or in fact, some psychiatric development maybe that occurred after the trial or after this basic testimony was given.

And I think any court would look at the testimony and think that the witness has testified and nobody contradicted the testimony of this witness, although the — it was of a character that certainly people could have.

There was other — there were other people would not.

And so that would be a factor that I’m sure the Court would want to consider and examine this whole situation, try to determine what the truth is.

We don’t feel that with the great supervisory powers of this Court, it has the power to watch every court — federal court in the country that we are busily engaged in trying to develop and work on the various litigation the Government end.So that, we have to do what we can within our proper sphere to see that justice is done.And whatever this Court thinks is proper in this situation, we felt that we should bring it to your attention for your determination as to the best course to follow.

Mr. Solicitor, if the defendant has made a motion for the defendant for a new trial on the grounds of newly discovered evidence, would such a new trial be granted with the newly discovered evidence, not only to the credibility of the witness?

J. Lee Rankin:

I think not.

Was that this case?

J. Lee Rankin:

I think it reach —

(Inaudible) you’re — assume you can make a motion for a new trial.

J. Lee Rankin:

I think it reaches beyond that.

I think that the Government comes here saying, “We have doubts about the testimony of a —

(Inaudible)

J. Lee Rankin:

I feel that the Government was the prosecutor in this case and we urged this case and the conviction.

And therefore, at anytime during the trial and we maybe criticized for being late, I think it’s never too late to try to do justice.

And having come to that conclusion, I think that we could — should come before the courts, whichever one is proper and try to get a correction of the wrong if there is one.

(Inaudible)

J. Lee Rankin:

Well, I examined this testimony to determine how important it was to this case.

And my examination showed, satisfied me at least that as two — two of these defendants, it was crucial.

And in view of that, I would not want to have on my conscience the idea that they were convicted without testimony that would support their conviction.

William O. Douglas:

And why shouldn’t we reverse this demand?

J. Lee Rankin:

I — I would think you should except for this question of whether or not it’s a psychiatric condition that would leave the Court to conclude that in fact, the — this testimony was valid when made and these other occasions while — on their face, they throw great doubt, cause us to doubt, are not sufficient in view of what happened.

Now, the reason I say that is there are several instance here that do not follow the usual pattern of — of perjury for someone who is deliberately falsifying.

Now, here’s the testimony about this bastardy proceeding, which also was developed in this trial.

And the witness said that he was persuaded to — to plead guilty by FBI agent.

Tom C. Clark:

When did he say that?

J. Lee Rankin:

That was during the — after the trial period.

He said that he was persuaded to plead guilty and he tried to have it set aside in the state —

Tom C. Clark:

When did new trial (Inaudible)?

J. Lee Rankin:

I think so.

But the FBI agent testified that he did not urge or he has anything to do with it and the Court denied his motion to set aside the plea of guilty.

But then, in the Florida incident, he repeats that same statement.

Now, it isn’t usual for anyone who is deliberately falsifying to — to repeat something in identical terms in that way, it seems to us.

Usually, he changes the story a little bit after he’s been caught to try to adapt it to the situation in the hope that will be a little better, a little more palatable the next time.

And —

Tom C. Clark:

(Inaudible)

J. Lee Rankin:

No, I want to call the Court’s attention to that.

Tom C. Clark:

(Inaudible)

J. Lee Rankin:

Yes, without those two — without his testimony as to those two defendants, I do not think they could have been convicted and the Court would have — had to direct the verdict in their favor at least.

But as to the other three defendants, there is practically no testimony by this witness.

It is very slight.

I could give it to the Court if —

Hugo L. Black:

It was offered against all of them, was it not?

J. Lee Rankin:

Yes, that’s the point that the Court would — it seems to me, the lower court would have to examine the situation and see in view of the offer being general, whether or not it had an effect on the conviction of every one of the defendants.

Hugo L. Black:

And how could — how could the lower court — I want to say that I — I approve what you’re doing.

I think I agree with you.

It’s the duty of a prosecutor to see the justice when it can whenever the occasion arises, calls for his action.

But if — if it be true this evidence that it developed, let’s assume now that it developed that this man is now known to be psychopathic perjurer or some other kind of perjurer.

His evidence was important in connection with the other — with all the defendants.

Why isn’t the jury the only one that could pass on the credibility that would — why wouldn’t a proper grand jury be to — why would it not be proper to reverse and remand the case for a new trial?

How can you do otherwise?

How could the judge pass on that question finally?

That’s — that’s what I want to ask you about.

J. Lee Rankin:

Well —

Hugo L. Black:

Without encroaching on the — on the privilege of the jury to try cases and decide whether there is an evidence, is such or the person is such who gives the evidence that he should — his evidence should not be believed.

J. Lee Rankin:

It would seem to me that the way trial courts have often times examined the weight and this amount of evidence with regard to a particular witness that there is some doubt raised at sometime during the proceedings, either later or at the time, could be followed and that the trial court could determine the extent of the effect this witness might have had on the other defendants because there was a large volume of testimony in regard to the other defendants that bore directly upon their participation in the conspiracy and their overt acts and the testimony of this witness was so limited as to even a reference.

He said he will solicited money from him — two of them and it’s so slightest to any direct connection.

That seems to me the Court would have to weigh whether or not under that situation, he had decided that there is a doubt in his mind, in which case, I’m sure he would —

Hugo L. Black:

He disclosed to the doctrine of error without injury.

J. Lee Rankin:

That’s right.

Hugo L. Black:

Let’s — let’s assume now that the evidence is of importance with reference to all the defendants and the case were remanded that it is of importance.

The Court reached the conclusion that he was or has been established since that time to be a perjurer.

Would there be anything else for the trial court to do or should there be anything left for him to do except to remand — to — to set aside the judgment and have him try it by the jury to confess on the whole evidence with knowledge that this man has been used against is what is his — his reference to be.

J. Lee Rankin:

And he says — right, that’s what the Court would do, if he — if he came to those conclusions.

Hugo L. Black:

He came to the conclusion that the evidence was important and that the man was a perjurer.

J. Lee Rankin:

And the only thing further that I have to say is that it seems to me that this Court cannot better handle this matter or it wouldn’t serve any real purpose to examine all of the other questions in this case when this particular question is so important to the matter of justice in this proceeding and that the decision as to this matter by the trial Court sent back to it.

It might be very important if not conclusive as to whether these other problems ever had to be passed upon by this Court.

Earl Warren:

Mr. Solicitor General, you didn’t get ever to the Florida incident.

That — that is not your fault, it’s because the questions we asked, but I’d like to have you discuss that if you will, please.

J. Lee Rankin:

Well, the Florida incident is so extreme that there isn’t — that was the accumulated part.

Earl Warren:

Would you mind saying what he did testified?

J. Lee Rankin:

Yes.

He testified in a disbarment proceeding of one Leo Sheiner for the Circuit Court of 11th, the Judicial Circuit of Florida in Miami.

He then said that he was induced to plead to this bastardy proceeding by the FBI agent.

He repeated that same testimony.

Then, he said that he visited Dade County, Florida on behalf of the Communist Party during each of the years from 1946 to 1952 that the Communist Party in Miami had attempted to lease a bus line which served the Opelika Air Base, that in 1948, the Communist Party made plans for the armed invasion of the United States on orders from the Soviet Union and that he and Mazzei was selected to go to Miami in 1948 because it was a C4.

Now, this is July 2nd, 1956 that he was testifying, that he took courses in the Communist Party on sabotage, espionage and handling arms and ammunition.

He was taught by officers of the Communist Party in Pittsburg how to blow bridges, poison water in reservoirs and to eliminate people.

He discussed with Sheiner in 1948, knocking off Judge Holt, a Florida judge, who may presumably the Communist Party we’re having trouble with in importing one, Louis Bortz, a strong armed man for the Communist Party to do the job that he and the Communist Party have made plan to assassinate Senators, Congressmen and even went to Washington and beat up a Senator.

To his knowledge, Schreiner was extensively engaged in Communist Party activities in 1945, 1947, 1950, 1951 and 1952.

None of his testimony at the Florida proceeding is supported or corroborated by information in the possession of the Government.He also testified that he was — went into the army because the FBI asked him too and they got him in the army.

It only took a very short time and I think a couple of days to get him in the army for this limited purpose.

And the fact is we know in the investigation that he went in because he was under the Selective Service Act.

Now, that information in a — in a form of a transcript was gotten as soon as the Department could and it came to the attention of the Internal Security Division early in September and they then tried to check back on in to determine whether there was any support for that kind of testimony in whatever the Government have.

Mr. Rankin, could I ask you this question?What would be your view as to the propriety of this Court reversing the case here without sending it back, reversing it on your statements and directing a new trial?

J. Lee Rankin:

Well, we would have recommended that to the Court if we had been satisfied ourselves that Mazzei’s testimony at the time of the trial which we think is the determining point in the proper conduct of judicial proceedings that it’d be reversed and go back with — because we’d feel at least as to these two defendants, there was no basis for their conviction.

But it’s possible that something has happened to this man that his uncontradicted testimony was valid at the time of the trial.

And it seemed that with the long case tried like this and the jurors that involved, the trial court, Courts of Appeals and so forth, the proper way to do was to send it back to the trial court for its examination carefully into this question to determine what the fact is and then assume that he would do his duty which I think he will and have the case handled properly at that point.

Earl Warren:

Well, Mr. Solicitor General, I understood you to say that you — you believe that the testimony he gave about the plan to assassinate Senator McCarthy was untrue and that was given at the precise time of this trial.

If that — if you believe that was untrue, why do you believe anymore that — that the testimony he gave at this trial was true?

J. Lee Rankin:

Well, one of the things that cause me to think that there is that possibility is the fact that no one contradicted that as I understand the evidence, and that’s his testimony.

And there were people available to do that.

And the — Senator McCarthy instance seems so remote from whether or not these particular people were engaged in particular incidents, detailed incidents of the Communist Party action and meetings and things of that character.

That – it seemed to me that it didn’t — it wouldn’t determine whether or not the witness testified credibly at the time.

Earl Warren:

Well, was the — was the testimony that he gave in this trial contradicted by the defendants?

J. Lee Rankin:

There was no testimony to contradict it, as I understand the officer.

Earl Warren:

I mean the testimony that he gave at this trial.

J. Lee Rankin:

At the trial of the case, Your Honor.

Earl Warren:

Yes.

J. Lee Rankin:

No.

As I understand —

Earl Warren:

Well then, why wouldn’t that be subject to the — to the same — same thing that the — his testimony before the Un-American Affairs Committee is subject to?

You say there, you — you didn’t believe it or you have reason to believe it because it wasn’t contradicted.

J. Lee Rankin:

No, I — I was talking about the — at the time of the trial but there was no (Voice Overlap) —

Earl Warren:

Over this case?

J. Lee Rankin:

Yes, sir.

Earl Warren:

I beg — I beg your pardon.

J. Lee Rankin:

The case, I’m sorry.

Earl Warren:

Yes, that’s my fault.

J. Lee Rankin:

But I — they didn’t have an opportunity –-

Earl Warren:

Yes.

J. Lee Rankin:

— to appear before the Senate Committee and —

Earl Warren:

Yes.

J. Lee Rankin:

— I wouldn’t hold that in any way against them.

Earl Warren:

Yes.

Well, Mr. Solicitor General, you now believe, do you not that the testimony you gave in that Florida proceeding is false?

J. Lee Rankin:

Yes, I do.

I don’t know the reason why though.

That’s the thing that bothers me.

Earl Warren:

Yes.

Well, the only — the only thing — only question then that bothers you is whether this testimony which was admitted as to all of the defendants was of sufficient importance to the others except the two that it directly affected in order to taint the trial?

J. Lee Rankin:

No.

I think there’s a further question as to whether or not the testimony at the time of the trial was credible because in the experience of courts, there’s often times that something occurs afterwards that clearly shows that the witness as to some other matter may not have been telling the truth.

Earl Warren:

But didn’t this McCarthy testimony occur precisely at the time of the trial, it was in the middle of the trial.

Wasn’t it?

J. Lee Rankin:

Yes.

But that —

Earl Warren:

When —

J. Lee Rankin:

— itself — well, it satisfies me.

Apparently, it didn’t satisfy the Court at the time and there is this factor of the other witness who says that it would incriminate you.

The fact that that is a factored away —

Earl Warren:

Yes.

J. Lee Rankin:

— and I think the trial court should be able to do it.

Earl Warren:

But may I ask you this?

When you get — if you should get down to the trial court, do you propose to argue to the Court that this testimony has not tainted the trial and that — and that no new trial should be granted?

J. Lee Rankin:

No.

I’m going to try to examine to see that the Government examines exactly what the situation as to — as to the validity of the testimony of this first — this very witness first.

Then, if it’s determined by the Court that this witness is not credible in regard to the testimony he gave, I want to help the Court examine the situation and see what the reach of that testimony was frankly and openly.

And then if it reached into the other defendants, I think that the Government should suggest and the Court certainly would regardless, determine that they should be entitled a new trial.

Earl Warren:

Well, the reason I asked you that is because in your motion, you stated that the Government in spite of all these other things still believes that all the testimony that he gave in that trial is true.

Now, the question I profound to you is this.

If you should go back to the trial court, are you, in spite of these other perjuries that he has — has committed, going to represent to the Court that you still believe that the testimony he gave there was true in order to prevent the defendant from getting a new trial.

J. Lee Rankin:

Well, I won’t — I won’t say we will do it to prevent anybody from getting a new trial.

We will try to examine it fairly and we had corroborative material at the time we presented the witness to support the testimony he gave at the time of the trial.

And unless there are some circumstances that the trial court finds that justifies this testimony later and separates it as being something that other reasons to justify, then the fact that this man is falsifying, we are — we would contend that that testimony is a valid.

But if they can’t separate this, the trial court on a careful examination and find this man did falsify at a later date and there’s no explanation of the psychiatric nature that will justify separating the two why we can’t support that testimony and certainly wouldn’t.

Earl Warren:

Well, is there any corroboration in the record of the testimony of this man concerning those two defendants, concerning whom you say his testimony is crucial?

J. Lee Rankin:

It’s — and my recollection of that, there was testimony to support it.

But there were instances in which — which are very important and very disturbing too in which he testifies to conversations that he alone had —

Earl Warren:

That’s right.

J. Lee Rankin:

— with these important defendants.

And —

Earl Warren:

And that’s the crux of his testimony, isn’t it?

J. Lee Rankin:

Well —

Earl Warren:

That they — that they proposed to do violence?

J. Lee Rankin:

It — it also testified to in regard to meetings generally, but these particular situations are ones that could only be answered by the defendants taking the stand, which according to Judge Dimock, did not — wouldn’t be fair to them and I agree with that interpretation in the application of the law.

So that insofar as that element, if his testimony is found beyond truth, well, it certainly would reach to those defendants and might reach to the entire matter.

J. Lee Rankin:

Is that — that the answer to it?

Earl Warren:

Well, Mr. Solicitor General, I’ve asked you great many questions.

I — I don’t want you to — to feel that I cast any aspersions on you bringing this here.

I think it’s the most commendable thing to do.

The — the only question in my mind is to — to the procedure that we should follow whether this Court knows as much now as the court below will know and based upon your statement that you believe this man to have been a perjurer in these very vital matters affecting the same subject should cause this Court to act — act here rather than to send the case back and have it moved through the courts for a term of years and eventually come to us again.

That’s the reason that I — I was asking those questions to you.

J. Lee Rankin:

May I make one statement?

I do not —

Earl Warren:

Yes, certainly.

J. Lee Rankin:

— I don’t want it left on the record that I believe this man to be a perjurer because I think in order to commit perjury, you have to have the intent.

And that’s what disturbs me about this whole situation.

I can’t accept his testimony overall these events as being valid, but whether or not he knowingly does it with the intent to commit a crime is something else and that’s what — where I can’t follow through.

Earl Warren:

Well, do you have any information now as to — as to when, if there was a psychiatric condition, that it — it started?

J. Lee Rankin:

No, but I am disturbed —

Earl Warren:

It may have developed.

J. Lee Rankin:

And I’m disturbed about whether it occurred even back at the trial and I think the trial court had examined it that carefully.

Tom C. Clark:

Do you think it occurred when he filed his motion in the (Inaudible) case?

J. Lee Rankin:

It certainly seems to me that that’s a very peculiar action and that he should have anticipated even if he want to lie about it that the FBI agent would be there promptly in testifying to the fact.

And — so it’s very unusual to me that the person normally wanting to falsify would do such a thing.

But I think the trial courts have examined into competency a good many times and do it everyday and should be able to determine whether or not he was confident at the time.

Tom C. Clark:

This man maybe been hospitalized, do you know it?

J. Lee Rankin:

I — not that I know of.

Frank J. Donner:

May it please the Court.

Earl Warren:

Mr. —

Frank J. Donner:

Donner.

Earl Warren:

That’s — pardon me.

Frank J. Donner:

I’d better start by summarizing the items of testimony for which this witness was responsible.

There are five in number.

Three of them are private conversations and two deal with teaching in school.

The conversations which involved teaching in school — the testimony which involves teaching in school attributes to the petitioners Dolsen and Careathers’ statements involving force and violence.

Frank J. Donner:

Then the witness said that these two petitioners thought that the witness was insufficiently instructed in Marxism-Leninism and required some private tutoring.

And so he said they went to him privately and again told him that the only way that we can achieve a revolution is by force and violence and with the aid of the Communist Party.

And curiously enough, the things that he testified, they said to him privately, not only deal with force and violence or are almost in the same language, that is force and violence and with the aid of the Communist Party, as he says was used in the school.

In addition to that, there is another private conversation with the petitioner, Dolsen, along the same lines.

Now, this is the — the evidence with respect to the private conversation, obviously could not have been contradicted by anyone or a petitioner.

In addition to that — and here, I’m forced to disagree with the Solicitor General, he testified about a school, but he didn’t identify a single student in that school.

For all that could have happened, that never — that never could have been said and the defendants could never have brought anyone to contradict it.

There is not a syllable in this record to identify any one student in this school.

And so first, it is not a fact that the evidence with respect to the teaching in the school was corroborated.

There was no other witness who testified about teaching in the school.

And second, the defendants could not have refuted it because no one who heard the conversation, no one who heard the teaching was identified by name so that he could have been subpoenaed and brought into court.

So you have these statements, all of them, in isolation, all of them made under circumstances in which the defendants could not have refuted them, all of them dealing with force and violence.

And the two dealing with the schools being the only statements in the record dealing with what in fact was taught and advocated.

Now, that —

Hugo L. Black:

May I — may I suggest that it will help me if you would state what’s the defendant’s position with reference to the motion.

Frank J. Donner:

Very well.

It seems to me that this motion involves two questions.

First, the question as to what is the appropriate legal procedure in connection with the motion, and second, whether the Court should retain jurisdiction over the case, and here, the other issues.

That is the issues that are presented by the petitioner.

Now, with — with respect to the first, we contend that it would be appropriate on this record for the Court to order the dismissal of the two defendants, the two petitioners as to whom there is only this evidence which is now tainted.

And second, that as to the remainder that in order a remand for a new trial because there is no question here that you have a situation like the SACB situation, a Communist Party case, in which the collateral perjury, the collateral falsities of a witness discredit — inevitably discredit his testimony in the principal proceeding.

And — since in fact the testimony was admitted against all of the defendants, over — over the defendant’s protest, so that there isn’t anything for a District Court to do but to decide an issue of credibility which is for the jury.

Once it’s recognized that in these collateral proceedings of this witness showed himself to be an unreliable witness.

In this posture, a District Court could only decide the same thing.

He could only say, “Well, I agree with the Government that he was — he was an unreliable witness.

The record is tainted and therefore, a new trial should be ordered.”

Of course, there’s no question that the evidence was material.

They all dealt with force and violence and most of it dealt with teaching.

So that on this record, I repeat that the appropriate procedure would be, first, to dismiss as to the two, and second, to remand this to the other.

Now, I — I too feel —

William O. Douglas:

To dismiss, you mean grant a new trial?

Frank J. Donner:

No.

Order of judgment of acquittal as to the two, Your Honor, because that’s the only evidence asked to them.

There is no other evidence.

Now —

William O. Douglas:

For the same — the same remand do you mean?

Frank J. Donner:

For a new trial as to the other three.

Because as to Dolsen and Careathers, the principle evidence against them are these private conversations which this man testified to contemporaneously with his testimony before the Senate Subcommittee about Senator McCarthy.

Now, bear in mind that in 1953, this man had been an agent for the FBI for 11 years.

He testified that he — that he had made a room-full of reports.

The FBI knew everything that he was on a position to report about the Communist Party.

So it can hardly be said that the Government was completely in ignorance of the possible lack of credibility of this witness when a man is working for any employer for 11 years in one field and he doesn’t tell them that the Communist Party had a shooting practice, that it practiced manufacturing bombs, that it had a rifle range in a home, that it took pictures of the City of Pittsburg and staged, mocked sabotage raids.

Why, that was precisely what the FBI employed him to do.

And to suggest that there could be any doubt that this was an invention, it seems to me is rather extreme under the circumstances of his relationship to the FBI.

And it — it does not involve merely the question of Bortz.

Bortz was one individual who was mentioned in the testimony as the alleged finger man for Senator McCarthy, but their huge plot was laid out involving, for example, petitioner Dolsen who presided at the meeting where plans were made so that the fact that Bortz pleaded the Fifth Amendment, horribly explains the Government’s satisfaction with that testimony because as I say, it covered far more than Bortz.

Now, I also want to point out to the Court that this testimony, and the Solicitor has pointed it out in his motion, that the Court of Appeals referred to this testimony not once but twice.

Once, in connection with a discussion of the sufficiency of the evidence, and another occasion, in connection with a discussion of the admissibility of the evidence.So that there is no question that the evidence loomed large in this case.

There were only five witnesses and this — this witness testified about in his conclusory way about force and violence in such a way that he couldn’t have failed to impress both the Court and the jury.

It seems to me that you could — the testimony is only 54 pages long.

The Court can read it and you can’t help reading it but what — but what — but inevitably come to the conclusion that this witness made the case for the Government.

He was the force and violence man.

He was the person who talked about shedding blood and — without equivocation on this bare-faced conclusory kind of — of statements which informers are told to give.

And so Your Honor, it seems to me that to prove now whether there was some psychiatric barrier which possibly separated the testimony in the trial court from everything that went afterwards, seems to me to be rather irrational if I may say so.

It seems to me that when you have this man who was contemporaneously lying, he gets off a stand in this case and then he gets on the Senate Committee and he says, “The — the Communist had this huge plot.”

He — if he was psychiatric, he must have suffered from a form of schizophrenia or divided personality.

But nevertheless, it seems to me, viewing this thing in an ordinary common sense rational way, it’s quite obvious that the petitioners here were the victims of a perjurer, a man who lied and lied boldly and without much skill.

And so — and — and this is particularly true of course with respect to the two petitioners as to whom there is no other evidence.

Harold Burton:

Mr. Donner, you are also going to refer to the other facet of this motion as to whether or not you should argue the merits of the main case?

Frank J. Donner:

I’m sorry, Your Honor, I’ll do that.

Frank J. Donner:

I’m glad you reminded me.

The question of whether the Court should hear the whole case in order to determine these other issues really involves values that don’t impinge on petitioner so much as they do on the business and function of the Court.

Now, we have presented a number of questions.I’ll just list them briefly.

And we have presented questions about the admissibility of the evidence, whether a pre-1940, pre-statutory evidence is admissible, whether the evidence antedating the indictment is admissible.

We have presented questions about the comments on clear and present danger which the Court — the trial court engaged in.

We have presented questions about the conduct of — of the voir dire.

Now, there have been, as the Court knows, 14 Smith Act cases tried, and they — these cases produced characteristic and predictable kinds of problems.

And one of the most characteristic is the admissibility of the evidence.

That’s fought out in every case.

And it seems to me that — that the Court has a duty to tell the District Courts of this country what the rules are in Smith Act case about the admissibility of evidence because — otherwise, regard to have the same kind of confusion and conflict which it seems to me should be avoided.

In every case for example, the Government has a witness named John Lautner.

He testifies about what he taught in a school in 1930.

The defendants object.

Well, importantly to say their testimony is competent or it’s incompetent.

It’s remote or not to remote.

But in every Smith Act case, John Lautner has testified.

Now, it seems to me that this Court must sometimes say whether that testimony is admissible.

That question is one which will continue to play the administration of the statute in this field until this Court speaks with some authority.

And that troubles us and I’m sure that it troubles everybody who is going to try one of these cases.

Now, another kind of problem, “Are you entitled to a hearing on clear and present danger or aren’t you?”

Three District Courts — two District Courts have now given hearings.

All the rest say that what was held — that was held in Dennis that you’re not entitled to a hearing.

Another recurrent problem, there’s a universal national feeling against Communism.

The climate is awful.

It’s hard to get a fair trial.

What are the trial judges’ duties with respect to the conduct of the voir dire?

Does he have a special responsibility to cure the prejudice in a hostility?

How far must he go?

That — those kinds of questions, it seemed to me, which are polished by our case, have to be resolved sometime.

Now, I don’t want to put myself in a position of saying that I’d rather have my day in court today rather in sometime in the future.

Frank J. Donner:

But I do feel it’s my duty to remind the Court that you do have these problems, and I think the Court can solve them as expeditiously and as quickly as possible.

Earl Warren:

We’ll recess.

The Court will recess.