Chapter I: Front Matter

... 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

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