The sun. [volume] (New York [N.Y.]) 1833-1916, 1903-03-18
SILK INDICTMENTS QUASHED
BECAUSE SPECIAL PROSECUTOR
WENT BEFORE GRAND JURY.

Not Even the Attorney.General Can Do
That, Much Less . Special Inves-
tigstor-That Merchants offered to
Pay tho Prosecutor Doesn't Matter.
judge Edward B. Thomas quashed in
the United States Circuit Court yester-
day the indictments found In December
by the Federal Grand Jury against Abra-
ham 8. Rosenthal and Martin L. Cohn. the
Greene street silk merchants, and former
Assistant Appraiser Charles c. Browne.
for alleged fraud and conspiracy against
the Government in the importations OF
japanese silks.
The Court holds in q long decision that
W. wickham Smith. the special assistant
to the Attorney General who was specially
appointed by the latter to conduct the prose-
cution OF the so-called silk-fraud cases,
was without authority to appear before the
Grand Jury, and that the indictments are
invalid because he did 20 appear.
Judge Thomas says that the only oficer
OF the Government who has q right to APP
pear before the Grand Jury In furtherance
OF a prosecution is the District Attorney
and in any subsequent proceedings to in
dict the three men Gen. Henry l.. Burnett
OF one OF Hlb osoiptohs ifoScpoAhy aus
charge Of the silk cases.
The motions TO quash were made four
weeks ago. A. j. Dittenhoefer and Frank
H. Plat appeared for the silk merchants
and Judson Wells for Browne. Judge
Dittenhoefer made the principal argument.
He made two contentions-frst, that Mr..
Smith had no right to appear before the
Grand Jury, and. second. that " he had the
right. the proceedings should be dismissed
because, as he alleged. Mr.. Smith was in
the pay OF the Merchants Association.
A TO the latter conten ton. JudgeThomas
after q ca eful review of the facts leading
UP to Mr. Smiths appointment. finds
that the assurance given BY the Merchants
Association to the Attorney General that.
II necessary. 1t would furnish funds to COM
pensate a special assistant TO the Attorney
General to prosecute the silk cases. was an
arrangement inter- alios and did not dis
quality the appointee. who became an
employee Of the United States. to whom
alone he could look for compensation. and
for whom he performed his duty with fidelity
As 10 the other contention, which he
upohlds, Judge Thomas says that II was
not until 1870 that the Attorney General
or other officers Of the Department OF jus
toe we're even allowed to appear in a cas-
except III Tic supreme NouIt' iho o''c
of 1870 authorizing them 70 argue any case
in any court or 70 ATTEND TO the interest
OF the United States In any suit pending in
any court or ito attend to any other in
terest Of the United States. do not EN-
power them to appear before Grand Jury.
Moreover a special assistant TO the Attorney
General Ia not an officer Of the Depart
ment Of Justice.
Mr. Dittenhoefer said last night that he
would this morning enter an order has d
on the decision and that as soon as the order
was entered. his clients would be freed
from any charge whatever and that their
s,ireties would be released,
whether the Government can appeal from
this decisdon IL q debatable question. said
he. .Of course. I am delighted with the
decision. The Grand Jury IL a secret
body and neither the defendants nor their
counsel. have . right 20 appear there. nor
can they offer any evidence. lts all one
sided and the theory 10 tina, the District
Attorney. who can have no prejudice, Dan
alone conduct thee secret proceedinss.'