Evening star., 1947-06-12

with fresh hope OF getting one. jus
tice Holtzof rejected, In Eislers
case, an afiidavit Of prejudice similar
to that involved in the Barsky case.
4. II he fails to get a new trial,
Eisler's attorneys may take the case
to the Court of Appeals with still
greater hope of success.
Barsky's lawyers had sought JUS
tice Holtzoff,s disqualification on the
grounds that, as a former assistant
to the Attorney General, he acted
as legal adviser to the FBI while
that organization was investigating
the Anti-Fascist Committee. The
FBI reported the committee was a
Communist front"
Denies Hearing of Committee.
In an affidavit attached to the
petition for rehearing fled by the
Government, Justice HoltZoff de-
MED he had ever heard OF the
Anti-Fascist Committee while in
the Department of Justice.
The af11davit said the jurist de-
nies "that he played part in ad-
vising and aiding In determining
the policy, nature, scope and OBJ
jectives of the investigation OF the
committee by the FBI."
The work Justice Holtzoff did
for the FBI while in the Justice
Department took only "a minor
portion of his time" it was asserted.
"The respondent (Justice Holt
zoff) has absolutely no recollection
of ever having heard of the Joint
Anti-Fascist Refugee Committee or
of any of the defendants in the
Barsky case during his period OF
service in the Department OF JUS
tice,' the affidavit said.
The committee describes itself as
a relief organization devoted chiefly
to aiding Spanish Republican refu-
gees. It's leaders are accused of
having conspired to withhold their
records from the House Committee
on Un-American Activities.
In his opinion yesterday, Appeals
Court Justice D. Lawrence Groner
made it plain the decision was not
taken lightly, and did not mean the
jurist was, in fact, biased.
He described Justice Holtzof as
"a very able and conscientious
judge" but took up Mr.. Rogge's
that the strength of the
courts depends upon the confidence
Of the people"
unless the court is supported by
what is practically universal feel
ng on the part Of the people that
It is absolutely fair and above criti-
cism," Chief Justice Groner said,
~ our whole system Of justice
becomes a farce.
Ultimately" he continued, "the
country would become what we are
seeking in every way in the world
10 avoid-something else than a
democracy" 3
Mr.. Rogge had argued eloquently,
Tor nearly an hour. No man, he
should be forced to pre-
sent his case to a judge in whose
he does not trust.
Our administration of justice, like
Caesars wife, should be above sus-
picion," he said.
Legal History Made.
For the experts, Chief Justice
Groner's opinion made legal history.
They were certain it was the first
time Federal judge had been dis
qualified from case once hearings
had begun. They belived it was
the first time this had happened
after a Federal judge, charged with
bias, has refused to disqualify him.
self.
1t was also an opinion which, as
delivered extemporaneously, left the
experts asking many questions.
There are two schools of legal
thought about the kind Of affidavit
of prejudice which the Barsky law
yers filed with Justice Holtzof three
days before the mass conspiracy
trial opened.
The first is that, II the charge
of prejudice is filed In time and
is backed by sufficient facts, the
justice must disqualify himself,
whether or not the facts are true,
The second is that disqualified tfon
depends on the truth Of the facts
set. forth. ~ n,
Based on Both Positions.
The Chief Justices opinion
seemed, to the experts, to base itself
on both positions.
On the one hand, he said: II
do not want for a moment to be
as implying that what
has happened in this case is any
more than a recognition by us that
a sufficient affidavit has been
filed"
1t made no difference whether
the facts set forth in the affidavit
were true or untrue" Chief JUS
tice Groner said, adding: ut does
not lie in the conscience of the trial
judge to question the facts"
On the other hand, the jurist
complained that Justice Holtzoff S
answer, as presented by Mr.. Muir
ray was based wholly upon the
technical factor that the precise
terms of the statute have not been
followed"
Chief Justice Groner said he had
assumed Justice Holtzof would an
swer that, while 1t was true he
had been a legal adviser to the
FBI, he had never taken part in
activities which would affect his
ability to preside without bias at
the trial.
Basis for Rehearing Plea.
II Justice Holtzoff had said this,
the chief justice remarked, he per-
sonally would have concluded that
Barsky's petition for writ of man
damus and his affidavit of prejudice
were without foundation.
1t was this statement which moved
the Government to its action this
in seeking rehearing.
Mr.. Chief Justice Groner," the
petition read, stated
N substance that denial by the
Justice Holtzoff) of the
allegations in the affidavit OF
prejudice would not only be in order
l.