Evening star. [volume] (Washington, D.C.) 1854-1972, 1921-01-31
court REVERSES
BERGER SENTENCE;
.DEBSL0SESPARD
Supreme Judiciary Holds
Judge Lands Should Not
Have Heard Case.
JUSTICES DIVIDE. 6 TO 8.
IN DECISION ON APPEAL
President Declines to Commute So
cialist's Sentence Favored
by Palmer.

The conviction of Victor L. Berger.
Milwaukee socialist publisher. on
charges of violating the wartime
espionage act was reversed today by
the Supreme Court on the ground that
Federal Judge Landis should not have
presided at the trial after his eligi-
bility had been attacked in an affi-
davit filed by Berger and charging
pre- judice.
WITHIN a few minutes after the
courts decision had been announced
President Wilson refused to commute
the ten-year sentence imposed on Eu-
gene v Debs. many time socialist
candidate for President, for viola
ton of the same law.
The court divided. to 3, in Berger's
case Justices Day, Pitney and Nc
Rt ynoIuS dissenting.
Affidavit Held Sufficient.
The majority opinion held that the
affidavit of prejudice filed by Berger
against Judge Landls was sufficient
to have caused his withdrawal from
the case and that Judge Lands him.
self Was not justified in passing upon
the affidavit.
Justice Day. who filed a dissenting
opinion. he'd, however. that the mere
filing of an affidavit should not be ac-
cepted as sufficient evidence of the
unfairness of the Judge The Berger
affidavit should not be taken at face
value" he said. because the facts
therein had been made solely on in
formation and belief" and no attempt
was made to substantiate them.
Mr.. McReynoids added to the dis
senting opinion a strong appreciation
of Judge Lands sentiments as mery-
ly showing his detestation of the
"HunniSh warfare which was being
backed by compatriots in America
under our too indulgent laws
Ten to Twenty Year Sentence.
1t should not be of any ini.'vr,ancc
to any judge that he sit in amy par
ticular case, the opinion said, and
only a false affidavit of prejud.ce
would remove the protection the law
gives the defendant in such. cases.
= Berger and the four other men We're
convicted under the sec.ioi. proh. 80
ing attempts to cause INSTRUMENTATION
and disloyalty in the naval and ,nit
tary forces, and each was sentenceu
TO from ten to twenty years imprison-
ment.
The appeal was brought to the Su
preme Court on the ground that jude.
kenesaw Mountain Lands, who pre-
sided at the trial. had SHOWN per
sonal bias and prejudice" against the
defendants because OF their nation
ality.
The effect of the majority opinion.
Mr. Day said. would be to place The
federal courts at the mercy of the
defendant and certainly Will great
ly retard the machinery of justice
"The case scenes to be traught with
danger of interference with tne order-
ly conduct. of the business of the
courts" ne continued.
Barred From House.
Next to that OF Eugene v. Debs
the case of Victor Berger, publisher
of the Milwaukee Leader. a socialist
paper attracted more attention rhan
any other brought by the government
under wartime espionage act pe.-
ger was accused of diSloyaity and wa
convicted at Chicago on January y.
1919. Subsequently he was twice de-
MED a seat in the House of Repre-
sentat tiveA by that body and the tnird
time he offered for Reelection ne was
defeated
Four other leaders of the socialist
party were convicted Win the MIL
waukee publisher
movement to bar Berger from the
seat in Congress. to which he had just
been elected from Milwaukee dls-
trict, was at once started, representa-
tive Mann. former republican leader,
heing one of the few influential MEM
hers of the House who came out in
bebalf of the socialist editor. a new
election having been ordered. Berger
was again returned and again the
House voted to bar him. 32S to =,
within an hour after he had presented
himself to be sworn in.
in refusing to commute the sentence
of Debs. President Wilson turned
down a recomme ndation from the De
partment of Justice which was placed
before him this morning