The Birmingham age-herald., 1921-02-01
DEFENSE WITNESSES SECRETED
 BY STATE COUNSEL, IS CHARGE
Berger Gets Ne.D Trial; Debs to Remain in Jail
Landis Was Ineligible to Con- duct Trial of Socialists and Should Have Retired When "Bias" Affidavit Was Filed, Supreme Court Rules
By Associated Press


 Berger, socialist editor of Milwaukee, and four codefendants. who were con victed and sentenced to terms rangin,, from 10 to 20 years for violation of the wartime espionage act will be given new trials under a decision today by the su- preme court
 Dividing six to three, the court held that Federal District Judge kenesaw Mountain Landis of Chicago was ineligi- ele to conduct the trial and should have retired upon the filing of an affidavit ny the defendants charging him With
 personal bias and prejudice" because Of the nativity of certain of them.
 While Justice McKenna was reading The majority opinion of the court, announce ment came from the White House that President Wilson had oyerruled recon mendation of the department of justice that the sentence of Eugene V. Debs, previously affirmed by the supreme court. be commuted to expire next Feb ruary l2 Dens. many times candidate ot the socialist party for President, is serv. ing 10 years in the federal prison in At lanta as result of his conviction at Cleveland. Ohio, on practically the same charges as were Berger and his codefend- ants.
 Those codefendants are Adolph Ger mer national secretary of the socialist party, a native of Prussia. William krnse, editor of the Young Socialist Magazine, whose parents were Germans; J. Louis Engdahl and Irwin St. John Tucker, writer's and lecturers, natives of the United States. and claiming to be nos of immediate German descent.
 QUESTION BEFORE COURT
 The sole question before the supreme court was whether Judge Lands had erred in continuing to sit in the case after counsel for the defense had filed a properly drawn affidavit of prejudice. Six members of the court, including Chief Justice White. held that he did. Three other members, Justices Day, Pitt ney and McReynolds, held that he did not and filed opinions sharply dissent ing from that of the majority.
 Justice Mrnenna, departing from his written opinion, said it should be of no importance to judge whether he sat in any particular case. He added that the section of the judicial code under which tue affidavit was filed was draNn be impartial but would be tree from even a suspicion of partiality
 We are of the opinion, therefore, he continued, that an affidavit upon infor- nation and relief satisfies the secg.cn that upon it's filing, if it shows the oD- jectionable inclination or disposition of the judge, it is his duty to proceed no further in the case.
 The facts and reasons the affidavit states are not frivolous or fanciful, but substantial and formidable, and they have relations to the attitude of Judge Landis mind toward the defendants.
 THEIR ALLEGED PROOF
 The affidavit filed by Berger and the other defendants sets forth as alleged proof of Judge Landis personal bias and prejudice" remarks the jurist made in passing sentence on August Wessenel, a GermanAmerican, on November l. 1918. Judge Iandis was alleged to have said then in substance:
 'One must have very judicial mind, indeed, not to be prejudiced against the German-Amcricans in this country. Their hearts are rocking with disloyalty. This defendant Is the kind of man that spreads this kind of propaganda, and 1t has spread until it has affected practi- cally all the Germans in this country.
 Justice McReynolds, in his dissenting opinion, said that "a public officer who nc aversion toward dislo3'aI German immigrants was simply unfit for his place.
 And" he added, when an over speaking judge is no well-tuned cynical, neither is an amorphous dummy unspot- ted by human emotions a becoming re- cepta ble for judicial power.
 AThe prejudice was toward certain iI.a- leyolent men from Germany, country then engaged in Hunnish warfare, and encouraged by those who un- happily had obtained citizenship here. An intense dislike for class does not refa- der a judge incapable of rendering com plete justice to one OF it's members.
 CAN'T FOLLOW REASONING
 Saying that he was unable to follow the reasoning approved by the majority MT. Reynolds said that it seemed to mean that if an admitted anarchist. with murder, charged a judge and himself specified the judge had made certain remarks against anarchists, the judge in question would have to retire from the case.
 Justice Day. in dissenting for himseir and Mir Pittney, regretted the decision of the court, saying it would have the certain result of impeding the operation of federal courts It would make the justice liable to attack, he add- sd by any defendant on the ground or alleged prejudice simply as means fer delay
 Justice Day also said that a simple af- ridavit lon information and belief. and unsupported by further facts, was nof m itself sufficient grounds to cause trial judge to withdraw, and that Judge Landis was within the law in refusing ,~ ontnrfaip if