Evening star. [volume] (Washington, D.C.) 1854-1972, 1957-06-04


ing a new trial. But it split 5-3
on the finding that the Govern
ment must produce at the trial
pertinent FBI files containing re-
Pc is against Jencks.
Justice Brennan said it was
up to the Government. and not
the judge, to decide whether it
ought to disclose state secrets
and other confidential informa-
ton" in criminal trials or allow
a crime to go unpublished if a
conviction could be obtained
only by turning over relevant
material to the defense.
Justices Burton and Harlan,
while concurring in the majority
for a new trial, said it should be
granted only because the first
trial judge gave erroneous in
structions about the meaning Of
Communist Party membership
and affiliation. Justice Whit
taker did not take part in the
decision.
Justice Clark. in his dissent,
protested that even the de-
PENDANT Jencks did not have
the temerity to ask for such a
sweeping decision" He said the
defense asked only that the
judge be permitted to examine
the documents and say whether
the defense should see them.
Justice Clark. a former AttUr-
hey General also regretted that
the court majority did not pass
upon the sufficiency of the trial
judges instructions. He de-
clared that 1.-The court is sorely
divided on this important issue
and proper judicial administra-
ton requires that charges as to
what constitutes membership
and affiliation in the Communist
Party be announced"
Questions as to what consti-
tutes membership and affiliation
in the Communist Party continue
today to vex and divide the Su-
preme Court as it nears the end
of its current term.
That point was raised yeSter-
day by Justice Clark in a dissent
to a ruling that the Government
can prosecute defendant in a
non-Communist affidavit case
only if he is shown some FBI
informant reports against him.
Justice Clark referred to his COL
leagues as "sorely divided"
The basic difficulty also was
indicated by the court in order
ing further arguments next term
in two cases challenging the So
called knowing membership"
clause of the 1910 Smith Act.
Similar questions are involved
moreover in several of the 40
argued cases still awaiting deci-
sion before the court adjourns
this month until october 7. The
tribunal disposed Of 10 argued
cases in written opinions yester-
day. Because of the volume and
scope of many of the remaining
cases it is believed unlikely that
the term will end before June II.
To the numerous cases &C
cepted in recent weeks for argu-
ment next year were added the
two challenging the Smith Act
provision for prosecution Of per-
sons who belong to the Com
munist Party while. knowing it
teaches and advocates violent
overthrow of the Government.
The court heard arguments on
those cases last October, but
apparently was unable to reach
decision. Justices Brennan
and Whitaker have joined the
court since that time.
The two cases, first Of their
kind to reach the high court.
we're appeals of Junius I. Scales,
Communist Party leader in the
Carolinas and Tennessee. and
Claude M. Lightfoot, Illinois
Communist Party leader, from
convictions for violation Of the
membership clause"
In recent years the court has
upheld constitutionality Of the
Smith Act section under which
some top Communist Party lead
ers we're convicted on charges OF
conspiring to teach or advocate