Evening star., 1944-12-03
Defense Expects
To Have Say in
Sedition Ru|inq
Justice Department
Maintains Silence
On Future of Case
BY CARTER BROOKE JONES


Several defense attorneys in tn
sedition case were convinced yester
day that the Justice Department
will put it up to them to decid,
whether to consent to a continuance
OF the trial, interrupted by the deatl
Of Chief Justice Edward C. Eicher
or have the judicial marathon star
all over again.
But there was no confirmation O
this reported plan from the depart
ment, 1t was disclosed, in fact, tina
no decision has been reached re.
earding the future course of the
case If Justice James M. Procto,
declares mistrial when he recon
venes the cause celebre" Thursday
Attorney General Biddle had beer
at home for two days recuperatine
from cold and has conferred with
no one, it was said.
Special Prosecutors o. John
Rogge and Joseph w. Burns, both
assistants to the Attorney General
maintained their policy of sitting
tight and saying nothing. Legal re-
search, however, was reported to
have disclosed at least one case in
which criminal trial was COM
pleted after the death of the pre-
siding judge. In this case, accord
ing to an attorney at the depart
ment, the trial was continued, with
the consent of both sides. with a
new judge and the same jury, and
verdict of guilty later was upheld
by an appellate court.
Wants Mistrial Declared.
On the other hand, E. Hilton Jack
son, dean of defense counsel in the
sedition case and frequently their
spokesman. said: I'VE think there
is nothing to be done except declare
a mistrial. There is grave doubt in
our minds whether any judge would
undertake the responsibility under
the circumstances. The authorities
are extremely meager on the point
We have found only one case bearing
remotely on the issue, and we do
not believe it could possibly be ap-
piled to a case with these COM
plexities and pecularities.
Mr.. Jackson, who, with his son.
John w. Jackson, represents Gerald
Winrod, said only one or two other
defense counsel had indicated to him
a desire to attempt to carry on the
trial and he did not know whether
they would be willing to enter a for
NAL stipulation.
Another defense attorney said he
was certain the Government planned
to try the 26 defendants again and
he felt the present trial could be
continued if enough defendants were
willing.
It's simply question of whether
we want to waste seven months" he
explained. Il am advised that the
Government will demand that the
trialtstart over at once if there is
a mistrial. We might as well go on
from this point and finish it rather
than waste perhaps another year" !"
Doubt Renewal is Planned.
Other defense attorneys, on the
contrary, were sure the Government
had enough" and never would hold
the mass trial again. 1t might, they
conceded, pick out few of the de-
PENDANTS and bring them to trial.
A side skirmish developed, mean
while, over the stenographic record
of the trial. with which the Govern
ment has been furnishing defense
counsel daily copy for the benefit
Of defendants who could not afford
to buy it. These attorneys COM
planned that the record had been
"impounded" in the clerks office
since the death of Justice Eicher
Wednesday night. and they no
longer were allowed to see it.
The Justice Department was ac-
cused of Withholding the record
This could not be confirmed at the
department. 1t was said, however
that the defense had received the
record only as courtesy, not as a
right.
Albert w. Dilling, representing his
former wife, Elizabeth Dilling,
PolllUSo OuU llldb UllC u 1ldU
been made available to the defense
by order of Justice Eicher and he
charged that the department had
overruled the judge the moment he
was in his coffin
This trial is not over" said
Macmillan J. st. George, counsel
for Joseph E. McWilliams, "and We
have right to the transcript. The
Justice Department has no right
to overrule Judge Eicher. However
If the department wants to end the
case now, I'm ready to submit the
evidence against my client to the
jury without argument The Gov
ernment has failed to prove its
case after nearly eight months
fumbling"
Several defense attorneys threat
ened to ask a court order if the
transcript still is withheld from
them Monday.