The New York herald. [volume] (New York, N.Y.) 1920-1924, 1921-02-01
Socialists Affidavit Of
Prejudice Upheld by SUI
preme Court, 6 to 3.
NOT FREED OF CHARGE
Decision, Based in Desire
for Absolute Justice,
Affects Four Others.
CASES MAY BE RETIRED
Department Of Justice Conf
dent Another Conviction Of
Conspiracy Can Be Secured.


New York Herald Bureau,
Washington, ID. c., Jan. 81.
The United States Supreme Court
to-day upheld the contention of Victor
l.. Berger. Milwaukee Socialist, and
four of his associates in the Socialist
party. that Judge Kenesaw Mountain
Lands of the Federal District Court of
Chicago was not qualified to preside at
the, trial and to sentence them to
twenty years imprisonment for VIOLA
ton Of the espionage law.
The decision, handed down by 6
to vote, held that Judge Lands
should have allowed another judge to
preside when Berger and his friends
fled with the court an affidavit alleg-
ing that in sentencing German
American in a similar case short
time before he had displayed preju-
dice against those Of German or Aus
TRAN extraction.
The result of the decision probably
will mean new trial for the Socialists.
but with some Federal Judge other than
Judge Lands presiding. Berger and the
others were not in any way freed from
the charge by the decision, and Depart
ment of Justice officials here believe the
that another conviction will be obtained.
Those sentenced to prison by Judge
Lands with Berger were Adolph Ger
mer, national secretary of the Socialist
party; william F.. Kruse, editor Of the
Young Socialists Ma0aSirc; Irwin st.
John Tucker and j. Louis Engdahl, So
cialist lecturers.
Three Questions Answered.
Judge Lands was not held by the
Supreme Court to have been guilty of
the Socialists charge of prejudice and
bias. but the court decided that In the
insurance of absolute justice 1t would
have been wiser for him to allow another
judge to preside.
The case came before the court when,
during the consideration of Bergers APP
peal, the Circuit Court of Appeals GER
titled three questions for answer. This
was done because Of few precedents for
Landis's actions. The questions were:
/. Was the affidavit Of prejudice
sufficient to invoke the law requiring
a change of venue? To this the Su-
preme Court answered yes.
2. Did Judge Lands have the right
to pass upon the sufficiency OF the
affidavit which involved alleged
prejudice on his part? The answer .
was yes.
3. Did Judge Lands have the right
to preside at the trial? The answer
was no.
The division Of the court disclosed a
sharp conflict Of views, Chief Justice
White. Justices McKenna, Holmes, Van
Devanter. Brandeis and Clarke forming
the majority and Justices Day, Pitney
and McReynolds being the dissentcrs.
Justice Mckenna In reading tho ma
jority opinion stated that Federal Judges
readily should allow another Judge to
preside II any charge Of prejudice, sub
stantiated In any particular. Is pre-
scented against them. The view of the
court was that the Judge should lean
toward the defendants In order to in
sure absolute justice.
Judge Lands In overruling the re-
quest for another Judge to try the case
presented tho Official stenographic re-
port Of the remarks he made which the
Socialists claimed revealed prejudice.
These we're not the same as those
quoted in the affidavit of prejudice. and
the Judge claimed the AFFIDAVIT was not
based on factA To this the court re-
piled that II the affidavit were false the
Socialists were subject to prosecution
for perjury.
Case Far From Finished.
ably will not be finally decided until a
District Court again tries the case.