New-York tribune., 1921-02-01
Court.
Grants Ii New
rial tt, Berger 4.
Tribunal Divides, 8 to 3. i'm
Reversing Conviction Be
!. cause Judge Landis Ig-
\ 1aorcd Charge Of Bias
Anotller .Jurist to Act
Four Other Socialists Be-
sides Ex-C,ongressnran
joint Nictors by Decision

EE ----~----~~-------.--~-
{ tFroin she IrbaNe's 'wasaiaoton Burea.
WASHINGTON, Jan. 3l.---In divid-
sssd opinion to-day the Supreme Court
/ tef the United States reversed the con-,
safction of Victor L. Berger, the Mil
|. isaakee Socialist ana publisher and
eisrmer member of the House of lepre-
h hssentatives. who was found guilty of
/ Saelstien OF TIE espionage act. The
+ Supreme CouTS based its reversal on
Nea ground that Federal Judge Kene-
IS ssw Mountain Lands should not have
ssrssided at the trial after Berger in
sgn affidavit which was filed with the
ryeourt charged prejudice and attacked
eEkis eligibility.
4 The effect of the decision is not to
+ sse ssse sse Berger. of the charges against
}san, but to remand the case for q new
tsxlal in the district court.
E-The court divided, six to three. Jns-
[, ttises Day, Pitney and McReynolds dis
f. Esented. The majority opinion held that
IRerger's affidavit of prejudice should
lhaye caused the withdrawal Of Judge
fisndis from the case. The court sharp-
Ily reflected on Judge Lands for re-
Emainng IN the case and said he wac
q HSS JuStaleO IN QQ1ng SO. 4s-t
In the dissenting opinion of Justice
b sDay he held that merely the FLING Of
lysn affidavit should not be accepted as
ksafhcient evidence of prejudice or un-
b fairness. He held the affidavit Of
Merger was based only on ssinformation
land belief and therefore ought not be
Staken at face value.
Ess The majority opinion was delivered
sby Justice McKenna. It quoted the
| Ia tnh IL. = I. 4. =.
Eendants expressing their belief that
P FJudge Lands had personal bias and
L fnfej judice."
III In addition to Berger, the defendants
Awere William +. Kruse, Adolph Germer.
Louis Engdanl and Edwin st. John
STucker.
Il isJustice McKenna, after going into
+ sshs law IN such cases, saideof the affi
Il 81 drThe facts and reasons it states are
|88ot frivolous or fanciful, but sub
astantial and formidable, and they have
5relation to the attitude Of Judge
landis's mind toward defendants"
u The Supreme Court inquiries of what
sencern it is for judge to preside in
Ia particular case. 1t rules that the
section of law under which q Judge is
barred from trying a case on the fling
|Tsf an affidavit of prejudice is impera-
81 tive and Eve cannot be relieved from
Its imperative conditions upon a dread
or prophecy that they may be abusiveiy
Hased. They can only be so used by
fmaking false affidavit and charge
81 Strain from that-perjury in him who
n makes the affidavit, connivance therein
lei counsel thereby subiecting him to
NJ Sdisbarment." sRa
III Justice Day pointed out that Judge
Lands had used the. words quoted in
n the affidavit in sentencing a man
/ named Weissensell after a jury had
convicted the prisoner under the es-
,pionage act. Justice Day said:
n .'The judge. in speaking of the con-
n aytcted defendant said he was of the
n: type of man who branded almost the
~ whole Americans German population,
and that one German-America such as
tsmore damage to his people than thou
Esands of them could overcome by be-
Ii ing good and loyal citizens, and that
1.-THE defendant was an illustration of
The occasional American Of German
birth whose conduct had done so much
Ito damn the whole 10,000,000 in Amer
Sca. While this language might have
appear to be in it anything fairly
establishing that the judge directed his
III observations at the German people in
II general, but rather that his remarks
were aimeds at the one convicted as
was the defendant of violation of law"
II Justice Day further said:
II 1T does not appear that the trial
Judge had any acquaintance with any
Il OF the defendants, only one Of whom
i vas of German birth, or that he had
II any such bias or prejudice against any
/ of them as would prevent him from
fairly and impaftiaily conducting the
trial. The opinion of the court places
| h. 49, x,Ax ,A - a.
-defendants who are willing to make
affidayits as to what took place at
previous trials in court which the
knowledge of the judge and Che un-
eontradicted test of an official show
up be untrue, and in many districts
Hsay greatly retard the trial of criminal
ESAses."
Justice McReynolds. in dissenting,
Said:
5i ITO claim personal bias without more
| sis insufficient; the facts and the rea-
<spns for the belief that such bias orI
Nrejudice exists must be set out, and
aaainiy. / think this must be done inl
EEerder that the judge or any reviewing
I siribunal may determine whether they
Hpfiice to support honest belief in the
E3stssqualifying state of mind. ~
Il ss}sat Defendants affidavit discloses no
Sdequate grounds for believing that
nersonal feeling existed against any
ohe of them. The indicated prejudiee
4 MAS toward certain malevolent men
1Tom Germany, country then en-
gagged in Hunnish warfare and motor
Ypsiy encouraged by many of its na-
i tfves who unhappily had obtained citi-
3e nship here. The words attribuhd |
EIo the judge q do not credit the ai-
dhYit's accuracy may be fairly cen
ssrued as showing detestation for a
rJowd Of Germans then engaged IN