# Mesarosh v. United States/Dissent Harlan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Harlan
United States Supreme Court
352 U.S. 1
Mesarosh v. United States
Argued: Oct. 10, 1956. --- Decided: Nov 5, 1956
Mr. Justice HARLAN, with whom Mr. Justice FRANKFURTER and Mr. Justice BURTON join, dissenting.
When the Court's order denying the Government's motion to remand, and granting the petitioners a new trial, was announced by THE CHIEF JUSTICE on October 10, Mr. Justice FRANKFURTER, Mr. Justice BURTON and I dissented. We reserved our right to file an opinion stating our reasons for thinking that the Government's motion should have been granted. This is that opinion.
On 670, 671, 18 U.S.C. §§ 2385, 371, 18 U.S.C.A. §§ 2385, 371, by conspiring to advocate the overthrow of the United States Government by force and violence. The Court of Appeals for the Third Circuit, sitting en banc, affirmed by a divided vote. This Court granted certiorari.
Mr. Justice FRANKFURTER, Mr. Justice BURTON, and Mr. Justice HARLAN dissent believing the Government's motion to remand should be granted, and reserve the right to file an opinion.
On September 27, 1956, about two weeks before the case was scheduled for argument, the Solicitor General filed a motion asking us to remand the case to the District Court for a hearing as to the truthfulness and credibility of one Mazzei, a government informant and witness at the trial. The occasion for this motion was that the Solicitor General's office, some ten days before, had come into possession of information which led it seriously to doubt the correctness of certain testimony given by Mazzei in various independent proceedings, all but one of which occurred after the trial, as to his relations with Communists and the Federal Bureau of Investigation. In its motion papers the Government stated that while it still believed that Mazzei's testimony at the trial had been 'entirely truthful and credible,' his post-trial testimony in these other proceedings was such as to 'lead us to suggest that the issue of his truthfulness at the trial of these petitioners should now be determined by the District Court after a hearing.' Petitioners' answer to this motion was that, while they considered themselves entitled to a judgment of acquittal or a new trial on the basis of the Government's disclosures, disposition of the Government's motion should nevertheless await this Court's decision on the issues brought here by the writ of certiorari.
On October 8, the Court directed that the Government's motion be heard orally at the threshold of the main case. My brother FRANKFURTER, who felt that the motion should have been granted forthwith, filed a dissenting memorandum. When the matter was heard by the Court on October 10, the positions taken by the Government and the defense were as follows: The Government was not yet prepared to say that Mazzei had committed perjury either at the trial or in any of the collateral proceedings. Conceivably, the Solicitor General thought, it might turn out that Mazzei was a psychiatric case. The Solicitor General pointed out that the petitioners had not previously moved for a new trial on the grounds relied upon in the Government's motion, although much of the later information as to Mazzei was known to them at the time of their motion for reargument in the Court of Appeals. Even so, the Solicitor General felt that in the broader interests of justice it was his duty to pursue the matter as soon as it came to his knowledge that a cloud was cast upon Mazzei's truthfulness or credibility. If he had been satisfied that Mazzei was a perjurer, the Solicitor General stated, he would have recommended that this Court reverse the convictions of two of the petitioners (Careathers and Dolsen). Since he was not so satisfied, he thought the proper procedure was to remand the case to the District Court for full exploration of the truthfulness and credibility of this witness. As to the other three petitioners, the Solicitor General regarded Mazzei's trial testimony of so little importance that the trial court, even if it found Mazzei was a perjurer, would have to review the entire case against them before ordering a new trial. Petitioners' position was that if this Court was unwilling to hear the main case on the merits, it should, without more, deny the Government's motion and reverse the convictions with directions for acquittal or at least a new trial. At the conclusion of the oral argument on the motion to remand, the Court recessed to consider the matter, following which its decision denying the Government's motion was announced from the bench.
We are in full agreement that the Court properly refused to pass on the merits of the case until this cloud upon the integrity of the convictions had been dissolved. Communist Party v. Subversive Activities Control Board, 351 U.S. 115, 76 S.Ct. 663. What we object to is that this Court itself should have undertaken to deal with the subtle and complicated issues presented by the Government's motion instead of sending the case back to the District Court for the determination of these issues after a full investigation. It is fitting that we state our reasons for this view.
1. We believe that the reversal of these convictions represents an unprecedented and dangerous departure from sound principles of judicial administration. The Court has overturned the results of a complex, protracted, and expensive trial before any investigation has been made of the suspicions which the Solicitor General brought to the attention of the Court promptly after the facts giving rise to them came to his notice. We find the Court's justification of its summary action unconvincing.
The basic justification given is that 'either this Court or the District Court should accept the statements of the Solicitor General as indicating the unreliability of this Government witness.' In effect, the Court has treated the case as if the Solicitor General had conceded the untrustworthiness of Mazzei's testimony at the trial. To us this reflects a misunderstanding of the Solicitor General's position. As to Mazzei's trial testimony, the Solicitor General-whose forthrightness and candor no one could doubt, and whose conduct in this situation has been commended by this Court-represented that the Government did not consider it yet had sufficient basis for regarding such testimony as untruthful. As to Mazzei's testimony in collateral proceedings, the Solicitor General, while stating his personal belief that some of it was untruthful, represented that he could not responsibly say whether such testimony involved perjury rather than psychopathic imbalance, and, if the latter, when that condition first arose or whether it was of such a character as to affect Mazzei's competency as a witness. In short, we think it abundantly clear that the Solicitor General conceded no more than that the situation was one that called for a thorough investigation.
We also observe that the Court finds that 'no other conclusion is possible' than that 'Mazzei's credibility has been wholly discredited,' and that some parts of his post-trial testimony have been 'positively established as untrue.' We do not see how these conclusions can be reached in the face of the Government's representation that it still believes Mazzei's trial testimony to have been 'entirely truthful and credible,' and without the production of any evidence, or the examination and cross-examination of Mazzei and those who contradicted him, as to the post-trial episodes which have been called in question. Nor can we agree with the manner in which the Court has dealt with the Solicitor General's contentions as to petitioners Mesarosh, Albertson and Weissman. The Court simply says that Mazzei's testimony against Careathers and Dolsen was of such a character that, having been admitted against all defendants, it tainted the whole trial. But we cannot understand how this can be said short of a painstaking appraisal of the entire record which the Court acknowledges it has not read. The Court was quite right not to read the record, for in our view this was not the business of this Court, but that of the District Court; but by the same token, we think, the decision as to whether a new trial was justified was also, in the first instance, the business of the District Court.
In the Communist Party case, supra, where there were undenied charges of perjury, we did not undertake to resolve those charges here, but instead sent the case back to the Board for exploration. We think a similar course should have been followed in this case. The Court suggests that the situation presented here differs from that in the Communist Party case, in that there the Board was the trier of the facts, whereas here it was for the jury, not the court, to weigh the truthfulness and credibility of Mazzei's trial testimony. This, however, overlooks the fact that as a preliminary to a new trial it must first be determined whether any of Mazzei's collateral testimony, now drawn in question, so reflects upon the truthfulness or credibility of his trial testimony as to warrant submission of the case to a new jury. That preliminary determination has always been recognized as the function of the trial court. United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562; United States v. Troche, 2 Cir., 213 F.2d 401; United States v. Rutkin, 3 Cir., 208 F.2d 647; Gordon v. United States, 6 Cir., 178 F.2d 896, certiorari denied, 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353.
Finally, the Court suggests that a different result might have been required if it were dealing with a defense motion for a new trial. However, we fail to see why the Government's motion, which was prompted by a desire to ascertain the true facts in all their ramifications, and which is aimed at the possibility of a new trial, calls for a different result or procedure than a defense motion for a new trial based on similar suspicions.
2. The District Court was the proper forum for the kind of investigation which should have been conducted here. This Court, and for that matter the Courts of Appeals, are ill-equipped for such a task. We need say no more than that appellate courts have no facilities for the examination of witnesses; nor in the nature of things can they have that intimate knowledge of the evidence and 'feel' of the trial scene, which are so essential to sound judgment upon matters of such complexity and subtlety as those involved here, and which are possessed by the trial court alone.
3. Certainly there is no room for doubting the Solicitor General's good faith in this matter, or for supposing that the conduct of the further proceedings below would fall short of the highest standards of criminal justice. We have the Solicitor General's assurance that all of the Government's information bearing upon Mazzei's truthfulness and credibility would be made available to the defense, subject to appropriate safeguards. As to the end result, the Solicitor General stated that in his view the trial court would have to acquit petitioners Careathers and Dolsen if it found that Mazzei had perjured himself at the trial or had then been incompetent to testify, and as to the other petitioners might have to order a new trial. We need not consider at this time whether the Solicitor General's statement exhausts all of the factors that might require a new trial. Suffice it to say that we regard the Solicitor General's approach to this difficult situation as unexceptionable; and it is hardly to be assumed that the District Court would not do its full duty or would fall into error. We need only add that had the Government's motion been granted this Court would no doubt have accompanied its remand with appropriate instructions to guide the District Court in coping with this complicated problem. And surely the fact that this case has been long-drawn-out does not justify short-circuiting normal and orderly judicial procedures. The procedure adopted in United States v. Flynn, D.C., 130 F.Supp. 412; D.C., 131 F.Supp. 742, commends itself to us as a proper means of dealing with problems such as those raised by the Solicitor General's motion. We do not, of course, even remotely imply that we give any tolerance to the notion that a criminal conviction found to be infected by tainted testimony should be allowed to stand. We do say that ascertainment of where the truth lies here requires the kind of probing that is beyond the facilities and practices of this Court.
For the foregoing reasons we dissent. We think that the Government's motion to remand should have been granted.

## Notes

* ↑ 352 U.S. 862, 77 S.Ct. 8.
* ↑ 223 F.2d 449.
* ↑ 350 U.S. 922, 76 S.Ct. 218.
* ↑ One of these episodes took place before the Senate Permanent Subcommittee on Investigations, in Washington, D.C., on June 18, 1953 (while the trial was still in progress). There Mazzei had testified that at a meeting of the Civil Rights Congress on December 4, 1952, one Louis Bortz (an alleged Communist Party functionary) told him that he, Bortz, had been 'selected by the Communist Party to do a job in the liquidation of Senator Joseph McCarthy.' On the oral argument the Solicitor General told us that the Government was not prepared at the time of the trial to regard this testimony of Mazzei as a fabrication, because Bortz when questioned on this subject before the Senate Committee had pleaded his privilege, stating that the answers to the questions 'would' incriminate him.
* ↑ 352 U.S. 808, 77 S.Ct. 14.
* ↑ As to Mazzei's trial testimony, the Solicitor General stated: 'Before the witness (Mazzei) was presented to the (trial) court, his testimony was carefully appraised as to whether or not it was supported by any other material the Department had, and he was not contradicted. Although witnesses took the stand in behalf of the defendants his testimony was not contradicted at all, and that was one of the factors that bothered the Government in connection with these subsequent events that have caused us to conclude that this man's testimony should be carefully reexamined by the lower court in regard to validity at the time of the trial, because of what has occurred since, which, ordinarily, even though there was actual perjury, would not determine the validity of the testimony at the trial, depending upon what the circumstances were.'
* ↑ As to this the Solicitor General stated: 'If I may say one word more in regard to that (the failure of the defense to move for a new trial), I feel that the obligation of the Government in a situation of this kind reaches far beyond the rights of these particular defendants, and it is its duty to this Court, and to the country, and it is our obligation in a situation of this kind, to try and see that justice is done. * * * We may be criticized for being too late, but I think it is never too late, to try to do justice. Having come to that conclusion (that the validity of this testimony is open to doubt), I think we should come before the courts, whichever one is proper, and try to get a correction of the wrong, if there is one.'
* ↑ The Solicitor General stated: 'Well, we would have recommended that (reversal) to the Court if we had been satisfied ourselves that Mazzei's testimony at the time of trial-which we think was the determining point in the proper conduct of judicial proceedings-(was untruthful), * * * because we feel at least as to these two defendants (petitioners Careathers and Dolsen) there was no (other) basis for their conviction. But it is possible that something has happened to this man (Mazzei), that his uncontradicted testimony was valid at the time of trial, and it seemed to us that with a long case tried like this and the jury involved and the trial court and the courts of appeal, and so on, the proper thing 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 (the trial court) would do his duty, which I think he will, and have the case handled properly at that point.'
* ↑ Whatever may be the differences between the rules governing a motion for a new trial based upon recantation of trial testimony or other types of 'newly discovered' evidence, ante, 352 U.S. 12, 77 S.Ct. 7, note 6, certainly none of those differences suggest that the trial court is not the proper tribunal for resolution of the issues presented by such a motion.
* ↑ In response to a question as to whether the defense would be furnished with all of the Government's information bearing on the truth of Mazzei's Senate testimony relating to the McCarthy incident, the Solicitor General stated: '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 suggest that possibly it should not be made available to them is that in this whole problem there are several people involved who might get hurt by a public airing of their connection with this matter. And it would be too bad, and very unfortunate, if it wasn't handled so as not to injure those people when it isn't necessary to the proper handling of this problem. * * * We will do whatever this Court thinks we should do, but what I had in mind was to lay before the judge all of the information 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 defendants) the benefit of the full and complete protection in such a proceeding as to what the facts are in this matter. * * * 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.'
* ↑ The Solicitor General stated: 'Yes, without his (Mazzei's) testimony as to those defendants (Careathers and Dolsen), I do not think they could have been convicted. I think the court would have had to direct a verdict in their favor, at least. 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. * * * (It) seems to me the lower court would have to examine the situation and see * * * whether or not it (Mazzei's testimony) had an effect on the conviction of every one of the defendants. * * * It would seem to me that * * * the trial court could determine the extent of the effect that 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 that they solicited money from him, two of them and is so slight as to any direct connection with it, that it seems to me the court would have to weigh whether or not, under that situation, he would decide that there is a doubt in his mind, in which case I am sure he would (direct a new trial).' In the absence of an exhaustive examination of the voluminous record, we are unable to understand how any adequate evaluation could be made of these considerations as to the petitioners Mesarosh, Albertson, and Weissman. When he was asked to 'assume' that the trial court would find Mazzei to have been a perjurer, and his trial testimony to have been of importance in the conviction of these three petitioners, the Solicitor General promptly stated that he was 'satisfied' that the court would set aside their convictions 'if he came to these conclusions.'
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