Bisbee daily review., 1921-02-01
BERGER AND FOUR C0NP PAN|ONS I l GET NE M TRIAL UNDER RUL|NG
Supreme Conrt. Divided 6 To 3, Decides LandiS
 Was Prejudiced
OPINION DISSENTING
Three Justices Hold Court Not Biased' For Dislike
 Pro-Gel1nanS In T.. s.

WASHINGTON. Jan. 3I.-victor L. Berger, Socialist editor Of Milwaukee, and four co-defendants who were sen- . tenced to terms ranging from 10 to 20 years for violation of the espion- age act. will be given new trials un- der a decision today -by the supreme court z t--1s' s9s 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 affidavit by the defendants charg- ing him with personal bias and prej- udfce. because of the nativity of cer- tain or them:
 Herger and his co-defendants are AdGlrh Ge, nor. national secretary of the Socialist carty, a native of Prus- sia; William Kruse, editor of the Young Socialist Magazine whose par ents were Gernans; J Louis Engdahl and Irwin St John Tucker. writers and lecturers. natives of the United States. and claiming to be not of i'm mediate Geiman descent
 The sole question before the su- preme court was whether Judge Lam dis had erred in continuing to Sit in the case after defense counsel had filed properly drawn affidavit Of prejudice. Six members of the court including Chief Justice White. held that he did. Three other members. Justices Day, Pitney and MeReynolds held he did Tot. and filed opinions dissenting from that of the maj6rity.
 mckenna's Opinion
 Justice McKenna, departing from his written opinion. said it should be of no importance to a judge whethS he sat in any particular case He added that the section of judicial code nnder which the affidavit was filed was drawn to assure that the court not only would be impartial but could be free from even a suspicion of partiality.
 We are of the opinion therefore" he continued. that an affidavit upon slnfgrmauon and belief, satisfies the section and that uIOn its filing if it shows the objectionable inclinatiOns or disposition Of the judge. it is his duty to proceed no further
 The facts and reasons the affida- wit states are not frivolous and fan ciful. but substantial and formidable and they have relation to the attitude of Judge Landis' mind toward the de- fendants."
 The affidayits filed by Berger and other defendants set forth as proof Judge Landis' personal bias and prejudice" remarks he made in pass ing sentence on August Weissenel. a German-American. on November 1. 191S- Judge Landis was alleged to have said
 One must have very judicial mind. indeed. not to be prejudiced against the German-Americans in this country. Their hearts are. reekpg 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 Germans in this country,
 Justice McReynolds, in his dissent ing opinion. said that "a public offic- CT who entertained no aversion to- wards disloyaI German immigrants was simply unfif.for his place"
 And" he added. while an over speaking judge is no well-tuned cym- bal neither is an afnorphous dummy, unspotted by human emotions. be coming receptables for judicial pow. CT. ..
 Says Pm rjudice Natural
 "The indicated prejudice was to ward certain maleyolent men from Germany. a country theh engaged ir