Arizona republican., 1921-02-01
SOCIALIST EDITOR AND CO-DEFENDANTS
 GRANTED NEW TRIAL BY SUPREME COURT
PERSONAL PREJUDICE AND BIAS OF
 JUDGE LANDS SUFFICIENT CAUSE FOR NEW TRIAL IN CASE OF VICTOR BERGER AND MILWAUKEE SOCIALISTS
IRepubllcan A. p. Leased wIre]

WASHINGTON, Jan. 3l--N1ctor F. Berger, Socialist editor of Milwaukee and four CO., defendants who were sen fenced to terms ranging from 10 to 20 years for violation of the espionage act, will be given new trials under decision today by the supreme court
 Dividing. six to three. the court held that Judge Landis of Chicago was in- eligible to conduct the trial and should have retired on the filing of an affi- davit by the defendants charging him with personal bias and prejudice be- cause of the nativity of certain of them.
 Berger and his co-defendants are Adolph Germer, national secretary of the Socialist party, a native of Prus- sia; William Kruse, editor Of the Young Socialist magazine, whose par ents were Germans; J. Louis Engdahi and Irwin St. John Tucker. writers and lecturers, natives of the United States and claiming to be not of immediate German descent.
 The sole question before the supreme court was whether Judge Landis had erred in continuing to sit in the case after defense counsel had filed a prop erly drawn affidavit of prejudice. Six members of the court, including Chief Justice White, held that he did Three other members. Justices Day, Titney ana McReyanolds. held he did not. and filed opinions dissenting from that or the majority.
 Justice McKenna, departing from his written opinion. said 1t should be of no importance to judge whether he sat in any particular case. He added that the section of judicial code under which the affidavit was filed was drawn tn assure that the court not only would be impartial but could be free from even Q suspicion of partiality- Landis Biased Court Rules We are of the opinion therefore. he continued, "that an affidavit upon 1 information and belief, satisfies the section and that upon its filing. 1t shows the objectionable inclination or disposition of the judge. it Is his duty to proceed no further.
 sThe facts and reasons the affidavit
 states are not frivolous and fanciful but substantial and formidable and l they have relation to the attitude ot Judge Landis' mind toward the de- fendants.''
 The affidavits filed hv Berger and other defendants set forth as proof Judge Landis' personal bias and prej- udiee' remarks he made in passing sentence on August Weissenel. Ger man. American on November l, 1918. Judge Landis was alleged to have said "One must have a very judicial mind indeed. not to he preiudiced
 aga nst the German Americans in this country. Their hearts are rocking with disloyalty. This defendant Is the kind of man that spreads this kind of propaganda and it had spread until it has affected practically all the Ger mans in this country"
 I Dissenting Opinion
 Justice MeReynolds in his dis sentinq opinion said that "a public
 officer who entertained TO aver
 sion towards disIoyal German
 immigrants was simply unfit for his place."
 And" he added, while an over
 speaking judge is no well-tuned cym-
 ball. neither is an amorphous dummy,
 unspotted by human emotions be- coming receptacle for judicial power
 .The indicated prejudice was toward certain malevolent men from Germany, a country then engaged in Hunnish
 warfare, and notoriously encouraged by
 many of its natives who. unhappily, had obtained citizenship here. An in- , tense dislike for class does not ren- 7 der a judge incapable of administering
 complete justice to one of its mem
 bers."
 Confessing that he was unable to \ follow the req soning of the opinion approved by the majority, Mir. Mcftey- holds said it seemed to mean that If , an admitted anarchist charged with murder should affirm an existing
 prejudice against himself, and specify [ the judge had made certain depreca- tory remarks concerning all anar-
 chists." the judge in question would
 have to retire from the case.
 Justice Day. in dissenting for him
 self and MT. Pitney. regretted the de-
 cision of the court, saying it would
 have the certain result Of impeding 2