Earl Warren: Number 137, Ben Gold, Petitioner, versus United States of America.
Harold I. Cammer: May it please the Court.
Earl Warren: Mr. Cammer.
Harold I. Cammer: The petitioner, Ben Gold, was convicted on two counts of filing a false affidavit under Section 9 (h) of the Taft-Hartley law.Gold executed this affidavit, which, by statute, is at the present tense, on August 29, 1950. He was at that time and for 13 years preceding the execution of this affidavit, he had been president of the Fur and Leather Workers Union. By its verdict, the jury found first that on August 29, 1950, Gold, as he knew, was a member of the Communist Party. And second, that on the same day, Gold, as he knew, supported an organization which advocated the overthrow of the Government of the United States by force and violence. For about 30 years before August 1950, Gold had been a leading member of the Communist Party. This membership, he had always openly acknowledged and even proclaimed it. It was common knowledge in the fur industry, in the leather industry, in the trade union movement, and elsewhere that Ben Gold was a member of the Communist Party. Between the enactment of the Taft-Hartley Act in 1947 and May of 1950, the union had refused to comply with the filing requirement of Section 9 (h). On May 8th, 1950, this Court in Douds sustained the constitutionality of the statute. At the union's biannual convention held two weeks later, Gold suggested to the union, advised the union that in view of the decision the time would come for the union to comply with the filing requirements of the Act. And he stated to the convention that if it adopted his resignation, he was uncertain -- his recommendation, he was undecided whether he would quit his union office or whether he would thereupon quit the Communist Party. The convention voted to comply and gave Gold time to reach a decision. Within the next two or three months, delegations of union members called upon Gold and urged him in the interest of the union to remain as president. On August 24th, 1950, Gold sent a letter to the National Secretary of the Communist Party in which he said, “Dear Gus, the letter was to Gus Hall, I am herewith submitting my resignation from, and severing my affiliation with, the Communist Party. Fraternally yours, Ben Gold.” Five days later, on August 29th, 1950, Gold signed the 9 (h) affidavit and the next day filed it with the Labor Board. At the time of his resignation, Gold issued a public announcement of his resignation. In this resignation, he expressed -- in this announcement, he expressed indignation against Section 9 (h) of the Taft-Hartley law to which he referred as a slave labor law.He said that neither he nor the Communist Party had at anytime advocated the overthrow from any democratically-elected government. On the contrary he said, Communist, workers, trade unionist, liberals, and progressives fought for and appreciated democracy. That was only the profiteers who opposed it. He concluded by saying that although he had resigned from the Communist Party, he did not thereby give up his belief in true democracy. And that therefore, he would continue to work for the repeal of the Taft-Hartley law and for the reenactment of the Wagner Act. In this trial, no witness testified and the record contains no evidence that after Gold had filed his resignation from the Communist Party he had had any communications or any transactions or any conversations with the Communist Party. The record does not show that he had attended any meetings of the Communist Party whether open meetings, close meetings, secret meetings, or that he paid any dues or that he carried out party assignment, submitted to its discipline or engaged in any conduct whatever, indicative of membership in the Communist Party. Neither does the record contain any evidence and no witness testified that after he had signed the affidavit he said or did anything which supported the overthrow of the Government of the United States by force and violence. Nevertheless, the Government urges that Gold continued to be a member despite his resignation and that his continued membership fulfilled its allegations to prove under both counts of the indictment. In other words, that his membership constituted support on which he was convicted on the third count. As evidence of its claim of continued membership after the resignation, the Government relies upon three things plus some additional factors, which while they were pressed and relied upon heavily at the trial, are presented now as make weight or corroboration. The three principal items relied on by the Government are these, first, that Gold having been for 30 years a hardcore member of the Communist Party. The jury could infer from that fact that he was the kind of a Communist who would submit a sham resignation from the Party and falsely swear that he was no longer a member. Second, the Gold -- the Government relies on the fact that in January of 1948, nearly three years before he had signed the affidavit and more than two years before this Court sustained 9 (h) in Douds, Gold had attended a meeting between -- between officers or leaders of the Communist Party and officials of some left-wing trade unions for the purpose of determining what the point he has added to Harvey's policy towards 9 (h) should be and whether the Party should give permission to left-wing union officials or Communist Party union officials to comply with Section 9 (h). The Government's witness who testified to this meeting, testified and said that the outcome of the meeting was that permission would not be given. From this the Government argues that there is an inescapable inference that because for a deduction or an inference, that because the Party had discussed in January 1948 the -- the question of granting permission, it necessarily meant that if permission had been granted the Communist trade union leaders would have then filed false affidavit. And we -- we submit that this is a surmise which is no better than a surmise that if the Party had granted permission at that time to file the affidavits, it might just as well have instructed the trade union people either to get out of the Party or to quit their union office. Thirdly, the Government relies on the testimony of two witnesses which are not supported by any facts but stated as a conclusion that the Party had a policy of favoring the submission of sham resignations and the filing thereupon of false 9 (h) affidavits. To these three main items of its case, the Government adds the following, first, four of its professional witnesses testified that Mr. Gold's statement that he had resigned from the Communist Party but did not thereupon give up his belief into democracy meant that he was thereby reaffirming his membership in the Party and that this was soapy in language, so that the resignation meant to read the exact opposite of what it said and was thereby a reaffirmation. Now, these witnesses -- of these four witnesses, none of them testified to any conversation or transaction with Mr. Gold except one who had last talked to him in 1929. Another one had never seen him or met him. The others testified to having seen him last one in 1940 and another last 1948. And while these witnesses were presented as experts in the Communist Party's use of language, none of them claimed and did not assert any expertise in the defendants, in Mr. Gold use of language. The only evidence which is in this case is that the defendant was very fond of using the terms democracy and true democracy and that he had frequently used them in the deferring to the Government of the United States. Secondly, the Government argues that there was testimony in this case that there was no such thing as the resignation from the Communist Party. There -- there is no such thing. You cannot resign from the Communist Party. On the basis of this testimony, the prosecutor, three times, told the jury and in considerable -- at considerable length that membership in the Communist Party is like membership in the United States Army, the United States Navy, the United States Marine Corp and the United States Air Corp. And the only way you can get out of the Communist Party, just as the only way you can get out of the armed services, is by being drummed out in court-martial. Of course, these witnesses -- themselves, three of them had left the Party without incident and official F.B.I figures show that certainly in recent times tens of thousands of persons have been dropping -- have dropped out of the Communist Party. In substantiation of the can't resign theory, the Government had its witnesses testify that on five or six occasions after Gold had resigned, the Daily Worker had referred to Gold in matter of fact terms and without abusing him. The fact that he was referred to without abuse means that he was favorably referred to and these ex-Communist witnesses gave that as their opinion that if he had resigned, the Daily Worker would not have spoken of him without abusing him. Now, some of this testimony was qualified, some said that the Daily Worker would not have carried these favorable references if he had in fact broken with the Party or that if he had testified against it or if he had denounced it. Fourthly, the Government relies on the fact that in 1951 -- in 1951 and in 1952, the petitioner had marched in and have participated with his union in the May Day Parade celebrations in New York. Its witnesses, the prosecutions witnesses had left the Party before 1951. And before 1952, the ones who testified to this were Manning Johnson who had left in 1940 and John Lautner who had -- who had the last -- had any connection with May Day in 1949. And they said that it was their opinion that the Communist Party controlled May Day in 1951 and 1952. And it was their further opinion that the Communist Party would not have permitted the petitioner Gold to participate in these parades if he had in fact broken with it and left it. The uncontradicted evidence in this record is that since 1907, which is long before Gold was a member of the union, long before the Communist Party was formed in this country, the fur union had been annually participating in the May Day celebration and the New York locals of the fur union, the collective bargaining agreements of the New York locals provide that May Day is a holiday. This was the Government's evidence and what it boils down to is the fact that the petitioner had been a long time member of the Communist Party, that there was opinion evidence why its experts -- that his resignation was insincere because the Party didn't accept resignation and because no one (Inaudible) was demonstrated between Gold and the Party after the resignation. More testimony that the Party frequently used deceitful practices and the opinion of the experts that the resignation meant the opposite of what it said. Now, the first legal question, which I would like to discuss, concerns the applicability of the perjury rule. Subject to a few inapplicable exceptions, perjury rule requires that the falsity of a sworn statement must be proved by the direct, that is the eye witness, testimony of two witnesses or one witness plus one independent corroboration. The question about the perjury rule arises in two ways. First as Judge Bazelon pointed out, the Government's evidence is circumstantial, weak circumstantial evidence as this, and does not meet the requirement of the perjury rule so that there should have been a judgment of acquittal. I do not believe that the Government will contend that its evidence meets the requirements of the perjury rule. On the --
Felix Frankfurter: Was the question raised by any request?
Harold I. Cammer: Yes, sir, they were.
Felix Frankfurter: (Voice Overlap) denied?
Harold I. Cammer: The -- the -- I will discuss that under instructions. We did request the trial court to charge the applicability of the perjury rule. The trial court instructed that it did not apply, that there could be a conviction on circumstantial evidence alone and exception was taken to that instruction. He denied our request to -- to instruct on the perjury rule.
Felix Frankfurter: If you're right about that (Inaudible) if you're right about that, namely, perjury rule applies (Inaudible) is the charge or the requested charge which was denied of the kind which we dealt with in whatever the case was sometime ago.
Harold I. Cammer: Weiler?
Felix Frankfurter: Weiler.
Harold I. Cammer: Yes, sir. We -- we cited the Weiler case --
Felix Frankfurter: The case is the -- what I want to know is whether this point can be dealt with in a very simple fashion can go right where the request may and the request denied which brings you within the Weiler case, what's the answer to that question?
Harold I. Cammer: Exactly, yes.
Felix Frankfurter: All right.
Hugo L. Black: Does the Government challenge that?
Harold I. Cammer: No, Your Honor. I'm sure they do not challenge that. Now, the --
Felix Frankfurter: But the challenge, I suppose, they claim the perjury rule does not apply.
Harold I. Cammer: Exactly or that the case comes within an exception to the perjury rule.
Felix Frankfurter: What's the exception?
Harold I. Cammer: The so-called nonobjective exception.
Felix Frankfurter: None what?
Harold I. Cammer: Nonobjective exception, this objective exception that we're -- you say I'm afraid or I was afraid. They say that since it deals entirely with -- with the subjective -- subjective statement it is not dissectible to prove by two.
Felix Frankfurter: Or even by one?
Harold I. Cammer: Or even by one, that's right. The difficulty with that is that in the Douds case, membership was held to be an objective fact and something which would be proved -- provable by directive testimony and by the overt manifestations of membership.
Felix Frankfurter: Now, what -- what is the punishment as enlisted that there is a statute dealing with false appeal --
Harold I. Cammer: Yes, I intend --
Felix Frankfurter: -- that made criminal by federal enactment and the various punishments which is affixed to them -- which are affixed to them?
Harold I. Cammer: If you'll bear with me one moment, I intend to come to that in --
Felix Frankfurter: All right.
Harold I. Cammer: -- in this -- in a very brief time. The second way in which the perjury -- the perjury question -- the perjury rule question arises is that --
Felix Frankfurter: In that short -- short circumstance, if you got one (Inaudible) why do we bother about this that are -- if it arises because of its -- if -- if it all turns on whether or not the perjury rule apply and if we invoked it by (Inaudible) to deny, do you need anything else?
Harold I. Cammer: I'd like to have -- I'd like to --
Felix Frankfurter: All right.
Harold I. Cammer: -- present -- there are so many things going on with this conviction, Mr. Justice Frankfurter.
Felix Frankfurter: I sometimes forget that. I have six reasons that I assume are enforceable.
Harold I. Cammer: Well, all right. The -- the trial court having -- having charge contrary to the perjury rule that there could be a conviction hereby on circumstantial evidence of the instruction if the perjury rule applies was error under the Weiler case. Now, in the -- in Hammer against the United States, this Court held that the perjury rule apply to prove a falsity of a false sworn statement. Even in the case, subornation of perjury, he pointed out that falsity is the corpus delicti of the offense in subornation of perjury as in perjury. Now --
Felix Frankfurter: The -- the Hammer case conceded the Weiler.
Harold I. Cammer: Yes, it did.
Felix Frankfurter: That's an old -- what you young lawyers call an old case.
Harold I. Cammer: Well, I don't think it's so old.
Felix Frankfurter: That's 14 years ago.
Harold I. Cammer: Now, in the present case, the -- the petitioner was indicted not under the perjury statute but under the False Statements Act, Section 1001. Nevertheless, the corpus delicti of the offense charged against the petitioner here was falsity of a sworn statement. And under Hammer, the perjury rule should have been applied.
Felix Frankfurter: Well, but was it -- Hammer was the supporting verdict, is that right?
Harold I. Cammer: Yes.
Felix Frankfurter: And the Court held that perjuries following perjury may be tried in the same case and would be observed on -- would be observed that have a separate standards.
Harold I. Cammer: No, this -- no, no, that's not what Hammer said. In Hammer --
Felix Frankfurter: In Hammer way back 275?
Harold I. Cammer: That's correct, Your Honor.
Felix Frankfurter: That's what it said?
Harold I. Cammer: No, it didn't say that. In Hammer, the Government asked the Court to review -- to reconsider whether the perjury still had continued vitality. There it was a prosecution for subornation of perjury, the Government tell that because it wasn't perjury that was under way, the perjury rule did not apply and no such instruction had to be given. And this Court held that the perjury rule must be applied and the instruction must be given in any case where falsity of the sworn statement is the crux as the gist of the -- of the crime.
Felix Frankfurter: I understand it like that when I read it.
Harold I. Cammer: Yes, it did decide that.
Felix Frankfurter: Are you saying that this Court has rules that wherever falsity is an ingredient of the offense that perjury must be applied?
Harold I. Cammer: Wherever --
Felix Frankfurter: Are you saying that?
Harold I. Cammer: I'm saying that in Hammer it said that where or since falsity was the -- was the corpus delicti of the offense and in a prosecution for subornation of perjury; the perjury rule must be applied. Yes, sir, that's what Hammer said.
Felix Frankfurter: (Voice Overlap) well, we --
Harold I. Cammer: No, it said -- it said what I --
Felix Frankfurter: Did discuss --
Harold I. Cammer: -- just represented.
Felix Frankfurter: It said that the rule applied to subornation of perjury as it did in perjury and it lead on to say that falsity is an ingredient in both.
Harold I. Cammer: And therefore --
Felix Frankfurter: Is there any different thing from saying wherever falsity is an ingredient you must have the perjury rule?
Harold I. Cammer: I didn't quite say that. If I did, I'm sorry. I said that Hammer applied the perjury rule in the case of subornation of perjury.
Felix Frankfurter: That's all to understand.
Harold I. Cammer: That's correct.
Felix Frankfurter: I'm not saying you're right or wrong in your general conclusion, but I think cases ought to be confined to what they desire.
Harold I. Cammer: Now, the Government's contention in this case is that the perjury rule does not apply because this prosecution was laid under 1001 instead of the perjury statute 1621. But we think that Judge Bazelon was correct when he says that there is no reason why a person charged with perjury under the name of false statements should be entitled to fewer safeguards and the person who was charged with perjury under the name of perjury. The Government says that since prosecutions are frequently brought under 1001 for a false unsworn statements, therefore, the -- the perjury rule does not apply to 1001 prosecutions. But in this case, Congress by Section 9 (h) required that the statement be sworn.It required that the representation be in affidavit form. Therefore, whatever the case may be as to other 1001 prosecutions, false swearing was declined charge in this case and it was the fact that the statement was under oath was in the essential element of the Government's case. The Government --
Hugo L. Black: Has -- has there been any case that held that this Court -- had held the two would be proved did not apply the charges of falsity where they were not for inducement?
Harold I. Cammer: The Government cites no cases in support of that proposition.
Felix Frankfurter: Has there been --
Harold I. Cammer: But --
Felix Frankfurter: -- any case which applies the rule, the cases other than perjury and subornation?
Harold I. Cammer: Well, yes. I think the Wood case, United States against Wood, which is the source and origin of the rule in this country way back in 1854, I think, which elucidated the perjury rule. It was a case which involved the false custom's declaration. And in that case and in the context of that case the perjury rule was written, of course there were cases -- other cases where the representation is under oath and not in a judicial proceeding where perjury -- the perjury rule apply. Now, the -- the argument and I think it's the only argument which the Government -- upon which the Government relies in support of its contention that the perjury rule doesn't apply is the fact that Congress in 9 (h) provided that prosecutions for a false affidavit should be under Section 1001. But there is nothing in the legislative history to show that Congress in designing such prosecutions under 1001 intended thereby to repeal the perjury rule. And that is Judge Bazelon that pointed out, it may -- a more likely assumption is that at the time of the enactment, 1001 contains different penalty for a false swearing into the perjury rule. And a more -- another plausible explanation is the fact that Congress would have thought -- might have thought that neither draftsmanship to lay all prosecutions for misuse of the 9 (h) affidavit and this includes the filing or the using of the false affidavit even though not made by the affiant under one statute, 1001.
Felix Frankfurter: Did I hear you say that the punishment is severer under this falsity statute of the perjury?
Harold I. Cammer: It was at that time, Your Honor. At that time it was and I -- and I think its quite unreasonable to infer that when the Congress provided a more severe penalty for one kind of perjury than it provided for another, that it intended thereby to repeal the safeguard -- the ancient safeguards of the perjury rule without at least saying something about it and without at least saying that that was its intention. Now, the Government argues further that the perjury rule cannot be applied because the issue in this case is whether the petitioner's resignation was sincere or not. But petitioner wasn't indicted for an insincere resignation, he was indicted for falsely swearing that he was not a member of the Communist Party and that he did not support an organization which taught violent overthrow. Insincerity of the resignation may be part of the Government's theory of the case but it is not the issue in this case. And the existence of the resignation cannot change the minimum requirements of proof which are needed to establish membership and support. We submit that it is precisely in Section 9 (h) cases that the perjury rule safeguards are most vital. Experience has shown that accusations of Communist membership and support are a prevalent phenomenon, and that the Government witnesses in this field are often highly unreliable. This is dramatized in this case and on this record by the fact that the Government's main witness in this case was Manning Johnson, who testified that he had lied, who admitted that he had lied under oath and that he would lie under oath a thousand times if he thought that that was necessary to observe his commitments to the FBI In the Communist Party case, this Court held that the record was tainted by -- by the allegations that Manning Johnson had perjuriously accused Ralph Bunche of having been a member of the Communist Party. This Court remanded the -- the Communist Party case to the Board, but the Department of Justice prefer to have Johnson's testimony stricken rather than to defend it against the allegation. In this case, we invited the Solicitor General to inform the Court as to whether or not it had evidence that Manning Johnson was a perjurer. The Solicitor General refuses, however, to say whether or not the Department has evidence that Johnson has committed perjury. So we have a situation here where the Government refuses to vouch for the credibility of one of its main witnesses for the reason in publicly accused of perjury and at the same time argues that the safeguards -- the traditional safeguards for one accused of false swearing should be discarded. We contend further that even without reference to the perjury rule, the evidence was -- is insufficient to sustain this conviction. The Government's case consists of membership, as I have said, before August 24, 1950, plus the opinion evidence which impugns the sincerity of the resignation. Even if this opinion evidence prove that the resignation was insincere, it does not prove post affidavit membership or support.Proof of that insincere resignation proves only that the petitioner was a member on the day he resigned and during the period before he resigned. But it does not prove membership after August 29, 1950.
Speaker: You don't think it has -- you don't think it's permissible to project some inference into the future? You think you have to cut it off at that point?
Harold I. Cammer: There is no permissible inference in view of the presumption of innocence.
Speaker: Well, is that a complete answer to that?
Harold I. Cammer: There is no inference possible of continued membership once he had signed an affidavit. The mere fact that he had been a member before, and a valid member and he signs an affidavit, no longer permits of any inference that he has -- that he's (Voice Overlap) --
Speaker: I know, but if --
Harold I. Cammer: -- after he had signed an affidavit.
Speaker: If a man -- if a man goes through a purported resignation which a jury finds insufficient evidence is -- can apply, isn't it a permissible inference for them also to draw the -- the reason he did that instead of out-making a resignation is to cover up something for the future?
Harold I. Cammer: Well, before the jury could find this, Mr. Justice Harlan, I think it's going to have some evidence, any evidence of post affidavit membership before it can say that the resignation is insincere. You can't say he's a member because his resignation is insincere. You can say his resignation is insincere because there was evidence of continued membership, but there must be some evidence, any evidence to show post affidavit membership activity which does not exist in this case. We have purely the opinion of the experts, so the mind readers that his resignation was insincere.
Stanley Reed: But that's based on his statements and interviews, isn't it, or his public release? That came from him.
Harold I. Cammer: That's correct, it did come from him.
Stanley Reed: And -- and that occurred after his affidavit?
Harold I. Cammer: Well, contemporaneously before it occurred with his resignation, he resigned August 24. He signed the affidavit August 29. Contemporaneously with his resignation he -- he issued his public announcement.
Harold Burton: If you interpret that the way the experts say, why then did he skip on that resignation.
Harold I. Cammer: Well, then you have an insincere resignation but it doesn't prove post affidavit membership. May I -- suppose on New Year's Day, I insincerely say I'm going to stop smoking, and I've been a heavy smoker until on that date. Now, that is an insincere statement. Does that prove that I have continued to smoke without some evidence that I smoked the next day?
Stanley Reed: Well, you can commit both insincerity and perjury, both of them.
Harold I. Cammer: You -- you can commit insincerity, but I don't think insincerity is perjury. Now, the -- the point of the Government's case is that where it -- where it has proved in this case, where it had admitted past membership, the burden of proof in some way shifted to the petitioner to prove that he was no longer a member. This is an impermissible transfer of the burden of proof. It's inconsistent with the presumption of innocence which prevailed. It's inconsistent with the affidavit which he filed, and that's inconsistent with the assurance, which this Court made in the Douds case, that there is no one who may not, at any time, quit the disqualifying alliances, quit his membership in the Communist Party to qualify thereby to sign the affidavit. Not only was the Government's membership insufficient, in our view, but it was also inadmissible. First, there was evidence, weeks and weeks of evidence, going back to the 1920's and concentrating around the 1920's and 1930's that the petitioner had been, what he always said he had been, a member of the Communist Party for 30 years.
Felix Frankfurter: How long did the trial go?
Harold I. Cammer: Six weeks.
Felix Frankfurter: Five days a week?
Harold I. Cammer: No, four. At the -- in his pretrial papers, motion papers at the outset of the trial and this whole thing to the jury, the -- the petitioner said that he had been a member of the Communist Party for 30 years and offer to stipulate that he had been a member of the Communist Party. The prosecutor refused the stipulation, and instead introduced volumes, literally volumes of (Inaudible) testimony about petitioner's experiences in Moscow and in the Party, in the 1920's and early 1930's, to prove that he -- that the petitioner had been a long time member of the Communist Party. The trial judge should never have permitted this -- this course, and the only purpose of this testimony and the only result of it was to inflame and to intimidate the jury. More pair less evidence be justified on a theory that it was being introduced in support of the third count to show that the Communist Party taught violent overthrow. In the first place, it was introduced and admitted only for the limited purpose of showing petitioner's past membership. It was not offered in support of the third count to prove the doctrine violent overthrow.
Hugo L. Black: How many weeks did it take (Inaudible) of his membership (Inaudible)
Harold I. Cammer: About four. About 2000 pages of -- of transcript. We don't think that the evidence of his past membership can be justified now on the theory that it was introduced in support of the support count.
Speaker: Did he take the witness stand?
Harold I. Cammer: He did not. The second good part of this evidence had nothing to do with even the third count, because it related to matters and periods which were remote from -- from August 1950. And even if they weren't remote, there was such testimony, for example, that in 1926 he had participated in the bidding of a striker, of a (Inaudible) and of an employer, and that had nothing whatever to do with even the third count. The opinion testimony of the ex-Communist witnesses was also irrelevant and calculated to confuse the jury. The Government now concedes that any party policy against resignation couldn't bar petitioner from resigning. That if the Communist Party had a can't resign rule, that wouldn't have prevented the resignation. In fact if a member can't resign then 9 (h) would be a bill of attainder. Nevertheless, the prosecutor promoted a conviction by -- are they impermissible? And even the unconstitutional argument by telling the jury time and time again that the petitioner could not resign because of the can't resign rule, that he couldn't resign anymore than soldiers can resign from the United States Army. And the trial court refused to correct this argument by instructing the jury that the can't resign rule -- by refusing to instruct the jury that the can't resign rule didn't bar a resignation. One testimony, the testimony of the so-called expert that the petitioner's resignation statement meant the opposite of what it says was likewise inadmissible. These witnesses weren't qualified as experts on the defendant's use of language even if they -- assuming that they were experts on the Party use of language. And they could no more -- they couldn't say that the defendant, inviting as he did, meant thereby to say as they testified. What he is saying here -- what he means here they said is that I am a Communist and I will always remain a Communist, and that testimony was -- was admitted over objection.I want to pass over various other points in order to deal with the error in refusing to mistrial because of an FBI agent's tampering with the jury during the trial. In March 1954, while the trial of this case was in progress, the United States Attorney's office in the district asked the FBI to investigate whether perspective jurors on the master jury list had been receiving literature pertaining to the case of one Hugh Bryson. Bryson was then under indictment, for a false 9 (h) affidavit. Bryson's case had nothing whatever to do with Gold's case and Gold had no connection with any literature on Bryson's case. Unfortunately, no one told the FBI to stay away from seating jurors. At 9:30 o'clock in the evening, an FBI agent named Smazel called juror Morton, a government employee. According to Morton and obviously, the important thing is the impression the jurors got as to what Smazel said, not Smazel's version of what he said he said. According to Morton, Smazel identified himself as being from the FBI, he said he knew Morton was on the jury panel, told them that somebody had tried to get next to the jurors by sending propaganda literature to their homes and asked Morton whether he had gotten any. That same night, the FBI agent called the home of juror Abrams, Abrams wasn't home so he spoke to Mrs. Abrams. When Abrams got home close to midnight, his wife told him that the FBI had called to find out whether he had received any Communist literature. The next day, the FBI agent went to the home of Juror (Inaudible) wasn't home so he spoke to (Inaudible) wife and children.
Hugo L. Black: When was that?
Harold I. Cammer: Pardon?
Hugo L. Black: When was that in connection with the trial?
Harold I. Cammer: This was during the fourth week of the trial while Budenz was on the stand and -- and after the jury had been hearing about hanging from the trees, how the Communist were -- who are ready to -- to hang --
Hugo L. Black: Fourth week of the trial?
Harold I. Cammer: Yes, that's right. The FBI agent spoke to (Inaudible) wife and children, and when (Inaudible) got home she told him that the FBI had been over to ask if he had received any mail on the Gold case. And -- and the FBI agent had also said that they had to be careful because in cases such as this, they were sometimes tampering with the jury, and the wife had the impression that he was talking about the Gold case.
Hugo L. Black: Was that evidence introduced (Inaudible)
Harold I. Cammer: Yes, it did happen. The -- the witness so testified (Inaudible). The -- the (Inaudible) so testified.
Hugo L. Black: Did anybody deny it?
Harold I. Cammer: Well, no, there was no denial. Smazel said that he had -- that he had been in there to ask about the Bryson case, but he hadn't asked about the old case.
Felix Frankfurter: Would you mind telling what the procedure was in the Court to which these questions and answers that were elicited. Is this brought to the attention of the Court?
Harold I. Cammer: Yes. Juror Raver --
Felix Frankfurter: And then you had -- and then there was an in camera or competing outside?
Harold I. Cammer: There was a conference in chambers, Your honor, of which the -- incidentally, the defendant was not present but --
Felix Frankfurter: (Inaudible) Is this the point two of your brief?
Harold I. Cammer: No, all right.
Felix Frankfurter: So it's not in theory.
Harold I. Cammer: All right.
Felix Frankfurter: The -- the judge interviewed the FBI agent and the United States Attorney who had issued the instruction --
Harold I. Cammer: In this chamber conference?
Felix Frankfurter: Yes, Your honor. Who had issued the instructions --
Hugo L. Black: What instruction?
Harold I. Cammer: I beg you pardon?
Hugo L. Black: What -- what has -- must be determined for the purpose?
Harold I. Cammer: Well, not -- not the prosecutor in this case, not Mr. Lowther. The prosecutor who's in the Bryson case, who had instructed the FBI to find out about the Bryson activity. It came in and laid an explanation and said he was sorry that it happened, perhaps as -- perhaps he hadn't been this careful as he should have been in -- in issuing instructions to the FBI. And the --
Hugo L. Black: Was this man a juror in the Bryson case?
Harold I. Cammer: No, he was not. The FBI was conducting --
Hugo L. Black: He happened to be a juror on this case.
Harold I. Cammer: He happened to be a juror on this case, that's right.
Felix Frankfurter: I missed something. Did he bring this to the attention of the Court?
Harold I. Cammer: Well, they -- it all happened together. The United States Attorney brought it to the attention of the Court and one of the juror --
Felix Frankfurter: Who brought it to the attention of the United States Attorney?
Harold I. Cammer: A juror.
Felix Frankfurter: All right.
Harold I. Cammer: The juror was so scared he hired a lawyer to find out what was happening to him.
Felix Frankfurter: I just want to know at the Court proceeding, did the juror spoke to United States Attorney?
Harold I. Cammer: He spoke to the FBI.
Felix Frankfurter: Pardon me?
Harold I. Cammer: The juror came with his lawyer to the FBI to say, “What is all this about?Are you after me?” And the FBI then reported it to the United States Attorney. The United States Attorney reported it to the Court.
Felix Frankfurter: And then the Court assembled these people?
Harold I. Cammer: That's right, and then --
Hugo L. Black: (Inaudible) the juror in this case that went to the --
Harold I. Cammer: Yes, Your Honor.
Hugo L. Black: -- FBI?
Harold I. Cammer: That's right.
Hugo L. Black: Did he sit in this case?
Harold I. Cammer: No, he was excused. This juror said he was too scared to continue as a juror, so he was excused.
Felix Frankfurter: Is that in this case?
Harold I. Cammer: Well, after this had happened, he was excused.He had sat for four weeks as a juror in this case.
Felix Frankfurter: And then one of the extra jurors, the State put in his place.
Harold I. Cammer: Yes.
Felix Frankfurter: The 13th juror was -- is that right?
Harold I. Cammer: There were two alternates. One of the alternates was put in his place and then this alternate said he would rather not sit too, so they then --
Hugo L. Black: Why? Did he say why?
Harold I. Cammer: He said he was uncomfortable about -- about it.
Felix Frankfurter: How did he know? Had he been approached too?
Harold I. Cammer: Well, the Court then called in all the jurors, one at the time --
Felix Frankfurter: That's what I want to know.
Harold I. Cammer: All right.
Felix Frankfurter: Tell us just what happened and where was this called up.
Harold I. Cammer: The Court called in the jurors, all the jurors and questioned them one at a time. Five of them said that they had heard something about it.
Felix Frankfurter: Privately one by one?
Harold I. Cammer: Serialy -- yes, one by one.
Hugo L. Black: They had heard about what?
Harold I. Cammer: They had heard that the FBI -- they didn't say what the -- we -- well, we did not participate in the questioning, and we objected to this inquiry because they were in the midst of a trial and we were put in the situation of having to interrogate jurors.
Felix Frankfurter: Did you at once move for mistrial?
Harold I. Cammer: We certainly did.
Felix Frankfurter: And the Court denied that? Is that -- that done in open court or in chambers?
Harold I. Cammer: In chambers and again in open court.
Felix Frankfurter: (Voice Overlap) then made this inquiry, it means the two jurors, is that right?
Harold I. Cammer: That's right.
Felix Frankfurter: All right. Go on from there.
Speaker: Were -- was the -- this juror that was approached also on the list of the -- was part of the jury panel for the next trial?
Harold I. Cammer: Well, I don't know whom the FBI --
Speaker: I don't quite understand why -- why they went to this man. Why they (Voice Overlap) --
Harold I. Cammer: Well, they -- they -- I think they were investigating the whole jury list to find out whether Bryson or someone in Bryson's behalf had circulated literature about Bryson to the juror. This had originated because someone on the master jury list had come to the U.S. Attorney and said, “Look I have received this literature.” And then the U.S. Attorney ordered --
Speaker: (Inaudible)
Harold I. Cammer: Yes.
Speaker: What was his name?
Harold I. Cammer: He had nothing to do with this case. I don't know who he was. How -- how this came to the attention that --
Speaker: What's the juror's name? (Inaudible)
Harold I. Cammer: There were three jurors who were approached, (Inaudible), Morton, and Abrams.
Speaker: They -- all three sat (Inaudible)
Harold I. Cammer: No, Abrams got out -- was -- was removed at his request and (Inaudible) and Morton continued to sit.
Hugo L. Black: They -- they've sat on the case and help render the verdict?
Harold I. Cammer: They did. They did, Your Honor.
Felix Frankfurter: In the footnote, if you care to give me the exact date when the FBI litigated the wives of the jurors themselves and the exact date when this is brought -- was brought to the attention of the FBI, can you do that?
Harold I. Cammer: Well, it was on the Thursday in March. It was on the Thursday --
Felix Frankfurter: When were the instructions given by the attorney in the Bryson case to make its investigation, can we do that?
Harold I. Cammer: I -- I'll have to notify you later about that.
Felix Frankfurter: Well, can we do that? I have a reason for a relevant reason as I believe I have.
Harold I. Cammer: Very well.
Hugo L. Black: Now, you have reached the point whether the 13th juror objected to sit for some reason --
Harold I. Cammer: He did.
Hugo L. Black: -- why is that?
Harold I. Cammer: He said -- he said that the case -- he said he was a government employee and the case concerned Communism, he hadn't realized its implications, he would be uncomfortable, and he would to please be removed.
Hugo L. Black: Was that statement made in open court?
Harold I. Cammer: It was made in chambers.
Hugo L. Black: To the judge?
Harold I. Cammer: Yes, it was.
Hugo L. Black: Now, what happened to him?
Harold I. Cammer: Well, he was removed.
Hugo L. Black: Was he excused?
Harold I. Cammer: He was excused and he was replaced by a government employee.
Hugo L. Black: Well, what happened about him? Did he -- was he approached in any way?
Harold I. Cammer: He had not been approached. He had heard of this.
Hugo L. Black: Does the evidence show that?
Harold I. Cammer: It does.
Hugo L. Black: What does it show he knew of it?
Harold I. Cammer: He had very -- when -- when these jurors came in --
Hugo L. Black: Well, he heard the conversation (Voice Overlap) --
Harold I. Cammer: Among the jurors.
Hugo L. Black: Among the jurors. Did he hear what was said to -- by the judge and the others?
Harold I. Cammer: Well, the record doesn't appear. The record doesn't disclose that, Mr. Justice Black.
Hugo L. Black: Well, the record does disclose that he had learned it from the juror? What had he learned from the juror?
Harold I. Cammer: The record does not disclose. The record simply shows that five jurors had heard that there had been -- that an FBI agent had contacted or made some inquiries about the case.
Hugo L. Black: And -- and was it after that this juror who was excused? Does it show whether the other jurors knew why the -- Mr. Abram's was excused?
Harold I. Cammer: No explanation was ever given by the Court to the jurors even though we asked the Court to explain, because of press accounts that appeared and which imply that we have been guilty of jury tampering, we asked the Court to make some explanation of the fact that we'd had nothing whatever to do with what had developed between the FBI and the jurors.
Hugo L. Black: Does the record absolutely clear on the point which you stated that the juror knew that the FBI went to 14 jurors and their family?
Harold I. Cammer: Well, three -- two of them knew it certainly because they had been approached themselves. Two of those who sat and rendered the verdict knew it. Five others testified that they had heard something about the FBI being interested in the jurors.
Felix Frankfurter: Could I -- in the interest at present, could you (Inaudible) tell me this. How many jurors who sat in the Gold case or actually sought to be communicated with and were -- were communicated was either directed to their wives by the FBI.
Harold I. Cammer: Two, Morton and (Inaudible).
Felix Frankfurter: Two?
Harold I. Cammer: Yes, Your Honor.
Felix Frankfurter: And you said something about five?
Harold I. Cammer: Five of the jurors who sat and rendered the verdict heard -- had heard from these jurors.
Felix Frankfurter: From the other two.
Harold I. Cammer: From the other two, that the -- or three, that the FBI had --
Felix Frankfurter: You're talking about three? I'd like to be very accurate. I have reason for asking this (Voice Overlap) --
Harold I. Cammer: Three -- three jurors had been approached by the FBI.
Felix Frankfurter: Three not two? You said a minute ago --
Harold I. Cammer: Well, three.
Felix Frankfurter: Three?
Harold I. Cammer: Of the three, one was removed because he said --
Felix Frankfurter: That left two?
Harold I. Cammer: That left two. Now, the --
Felix Frankfurter: They sat throughout?
Harold I. Cammer: They sat and rendered the verdict.
Felix Frankfurter: (Voice Overlap) Mr. Justice Black tell you --
Harold I. Cammer: They did, yes.
Felix Frankfurter: -- and rendered the verdict.
Harold I. Cammer: Now, five more of those who sat learned from either the three or the two who were approached that they had been approached by the FBI.
Felix Frankfurter: How did the judge examine -- Judge McLaughlin wasn't it?
Harold I. Cammer: Yes, he was.
Felix Frankfurter: Did he examine each one of the juror to ask whether they -- how many jurors did the judge --
Harold I. Cammer: He examined them all.
Felix Frankfurter: One by one or collectively?
Harold I. Cammer: He examined them all one by one, and he asked each and everyone whether they felt that what they had heard, whatever it was, they were never asked what they had heard, had impaired, in their opinion, their ability to render a fair and impartial verdict.
Felix Frankfurter: Generally whether it didn't happen?
Harold I. Cammer: That's right. And they all said yes, it had not impaired.
Felix Frankfurter: (Voice Overlap) happened sometime after the trial began in March 11 -- March 1954 --
Harold I. Cammer: It happened in the fourth week of the trial, Mr. Justice Frankfurter.
Felix Frankfurter: 1954?
Harold I. Cammer: March 1954, that's correct.
Hugo L. Black: When he asked the (Inaudible), collectively or did he call them in separately so the others could not hear what --
Harold I. Cammer: They were called in one at a time.
Hugo L. Black: One at a time.
Earl Warren: Mr. Cammer, is there any evidence in the record to show that any set of propaganda was distributed among the jury?
Harold I. Cammer: Well, we don't know. The FBI --
Earl Warren: No, I said is there anything in the record to show --
Harold I. Cammer: Oh, no, nothing -- nothing at all. Nothing developed as far as that is concerned. No juror said that he had received any material and as far as we know only one person on the list had received material at all. Now, in this Court --
Felix Frankfurter: And you're going to tell me if the evidence is somewhere in the record that you find out, maybe the Government -- maybe the Government could find. When it is that the authority of the FBI is -- or the attorney or whoever it was in the FBI (Inaudible) instructed communication that he had with these jurors (Inaudible)
Harold I. Cammer: I have so. Well, we think that in view of the Remmer case, the recent Remmer cases and the rule of this Court in Mattox which was reaffirmed in the Remmer cases. This FBI interference with the jurors in the middle of the trial deprived the --
Felix Frankfurter: I might --
Harold I. Cammer: -- petitioner of any possibility of a fair trial.
Felix Frankfurter: (Inaudible) the reason I asked about the time is this Court decided the Remmer case in March 8, 1954 and the Court of Appeals decided (Inaudible) case where this problem was brought to the attention of the authority, I suppose so, in May 28.
Harold I. Cammer: Well, Mr. Justice Frankfurter, the answer to that is that this happened --
Felix Frankfurter: 1953?
Harold I. Cammer: This happened --
Felix Frankfurter: The Court of Appeals at June 30, 1953. The case was decided here and we said that that certainly giving him notice about the seriousness of the problem on December -- on March 8, 1953.
Harold I. Cammer: Mr. Justice Frankfurter, we had the Remmer case. The Remmer case was 10 days old when this happened. When we were in judge -- or two weeks old when we were in Judge McLaughlin's chambers and we had the Remmer case, we had the split opinion.
Felix Frankfurter: You had told me all right, I wouldn't go to this (Inaudible)
Harold I. Cammer: Well, I didn't know what you had in mind. I'm sorry.
Hugo L. Black: Was that pointed out in [Laughter] the Court of Appeals? The Remmer case?
Harold I. Cammer: Oh, yes, oh, certainly. The Court of Appeals wrote no -- no opinion except Judge Bazelon's opinion for acquittal. Now --
Felix Frankfurter: You can make judicial notice (Inaudible) just as lawyers in the Court of Appeals and the District Court read the opinion. I wouldn't go on if it was beyond that but just assume that so.
Harold I. Cammer: Well, the trial court felt that they're here because it granted a hearing. The problem was solved because all of the 12 jurors were called in and interrogated and they said they were not defective that -- except their subjective reaction. And in the Mattox case, this Court said that the subjective reaction of the jurors to this kind of interference is not even admissible, it's not relevant. The question is whether or not the interference could have frighten them and it did. I have time just very briefly to -- to say on the membership instruction, the Court did not instruct the jury as to what are the components or the definition of membership. On support, the Court refused to instruct that the defendant's knowledge of the unlawful objectives of the Communist Party was necessary to a conviction. And it defines support in terms of a dictionary definition which included -- simply read a dictionary definition which included such phrases as support means taking the side of or defending his valid and right or support the claim which was dragging that lose definition of support. There was no evidence in this case, this -- this petitioner should never been indicted. He was indicted in the District of Columbia before a grand jury dominated by government employees. After two grand juries in New York, to whom the question of his affidavit have been presented, had refused or had failed to return an indictment. The -- the conviction rest entirely on the testimony of the -- on the opinion of the paid ex-Communist witnesses of the Department of Justice. No one came to say that he had seen or heard the defendant that any leading or -- or pay any dues or do in the act of membership. This conviction rest entirely on opinion and while a conviction resting on opinions of these magicians who were presented by the Department might be valid in the days of (Inaudible), I don't think it justifies or can support or meets our concepts of -- of inadequate predicate for a conviction in this day and age.
Harold Burton: Does the record show what class -- what -- what the FBI communication to the jurors at the time (Inaudible)
Harold I. Cammer: Justice Burton, the jurors were interrogated about that and the jurors were questioned about that.
Harold Burton: Yes, I know. But when the FBI went to see about the man, who was this Smazel, did they tell why they were asking them with regards to Bryson?
Harold I. Cammer: Bryson. The -- the agent's name was Bryson -- the agent's name was Smazel and he was inquiring about Bryson. Smazel says that was asking about Bryson. The jurors say that he was asking about Gold because there is that -- well, at least they understood him to be asking about Gold or they thought he was asking about Gold.
Earl Warren: Mr. Lowther.
Joseph A. Lowther: Mr. Chief Justice, may it please the Court. Since the petitioner has closed his argument on the question concerning the FBI contact of the jurors, I should like as a first point to continue the argument on that point. Now, to set the -- to set the incident in its factual background, here is what happened and the record bears this out, I submit to the Court. The Gold trial had been in progress some four weeks. On March the 5th, according to evidence adduced during a hearing, attended by petitioners counsel in the trial court, an all the day hearing incidentally before Judge McLaughlin, it became apparent that the United States Attorney for the District of Columbia, Mr. Leo A. Rover, now Judge Rover, had been informed by the Federal Bureau of Investigation, sometime prior to March the 5th of 1954, that a juror who had been sitting on a prior panel, that would be either January or February of 1954, had received a circular in the mail concerning the case of United States against Hugh Bryson which at the time of the Gold trial and at that the time of the incident concerning which petitioner complains, there was an indictment in the United States District Court and that indictment was waiting trial. In any event, it's clear that the woman who first received the circular which was a pro-Bryson circular and which is in the record in the transcript before this Court. That circular said, in substance, Bryson great constitutional issues are involved in the trial of Hugh Bryson and it went along in that line. The woman called that to the attention, if Your Honors please, of the Federal Bureau of Investigation's local office here in Washington, who in turn called it to the attention of the United States Attorney upon consideration as the United States Attorney testified before Judge McLaughlin in the hearing in the Gold case. The United States Attorney requested the Federal Bureau of Investigation to make an investigation to determine whether or not there was a systematic attempt to circularly -- circularized and circulate jurors in the District of Columbia with this pro defendant Bryson statement with an indictment pending in this Court -- in the -- in the District Court. Now, with that as a background, if Your Honors please, and that letter incidentally was written on March the 5th, 1954, that is the letter from Mr. Rover to the Federal Bureau of Investigation's local office requesting the investigation. Thereafter, and I might point out to Your Honors there, it's obvious that the United States Attorney was not asking the Federal Bureau of Investigation to investigate jurors sitting on the Gold case to where --
Felix Frankfurter: (Voice Overlap) what is called the instruction of the FBI that you just refer to the United States opinion in Rover? Instruction or request, is that right?
Joseph A. Lowther: It was a letter, Your Honor.
Felix Frankfurter: Where is it? Is that in the record?
Joseph A. Lowther: It is in the record, sir. It's during the --
Felix Frankfurter: Well, could you quickly --
Joseph A. Lowther: I can, Your Honor. If Your Honor will indulge me one minute.
Felix Frankfurter: Don't take any (Inaudible) time.
Hugo L. Black: Page 1587 and 1588.
Joseph A. Lowther: It appears, if the Court of pleases, on page -- excuse me just a second. It's around 1587, 1588, Your Honors. Now, it's obvious from reading Mr. Rover's letter to the Bureau that he was not requesting the Federal Bureau of Investigation to investigate sitting jurors in the United States District Court for the District of Columbia. He did ask that an investigation be conducted to see whether or not, in -- in substance, there was and had been an attempt to obstruct justice in an indictment in a case that was pending in his Court that didn't involve Gold in one way, shape, or form. Now, if Your Honors please, the FBI agent did go out and investigate. And during the course of his investigation, he went to the Jury Commission's Office and he there obtained a list of the January and February panel of the jurors in our court, that is the United States District Court for District of Columbia. The petit panel sits for one month from the first Tuesday of the month until the first Monday of the following month. The Gold case started on February the 23rd, a Monday. It didn't end up until April, if the Court please, so that on unbeknownst to the agent who was doing the investigation when he called juror Abram's wife and when he called juror Morton on the telephone and when he went to see Juror (Inaudible) wife, the agent did not know that they were active jurors in the Gold case. The reason being that the February panel had completed its work on the first Monday of March and except for the -- the Gold jurors who were still sitting in March on the Gold case which it carried over due to the volume of evidence. And it's clear from the record that that incident, namely, the fact that the agent did unknowingly contact the jurors in question, three. One of them on the phone, the wives of two of the others, and -- and Mr. Abrams, whose wife had been contacted, later came in person the next day. It's clear that the agent was called before Judge McLaughlin and that the agent told the judge and was cross-examination if -- cross-examined, if the Court please, by defense counsel in the judge's chambers as to the nature of the content. And the agent said, I told them that I was inquiring whether they had received literature in the Bryson case. I didn't say anything about Gold. If that is apparent from the hearing before Judge McLaughlin which took all day long from early morning, and that is I should say from 10 o'clock until my recollection is about 4:30 in the afternoon with time out for lunch, it's apparent that the -- that the affair was called to the attention of the Government by the FBI when Abrams, the juror -- one of the juror's wife had been contacted, came to the FBI office the next day. And as soon as he came down, he talked with another agent who was one of the receiving agents there and he said, “Someone called up my house last night and asked my wife some questions as to whether I received Communist literature.” The agent said -- and then Mr. Abrams said, “I'm sitting on the Gold case”. The agent who he talked to and this is all in the record, if Your Honors please. The agent to whom he talked said, “Did he mention the Gold case?” And Abram says, “No.”
Felix Frankfurter: (Inaudible) you mean the agent?
Joseph A. Lowther: That is correct, sir. When Mr. Abram's came down the morning of the day after his wife had been called by Agent Smazel, he talked with a second agent at the Washington field office. And he came down there (Inaudible) burden of the testimony in that point which is in the record is that at first he wasn't going to do anything about it, he thought it was joke or an impersonator, but he came down. When the Federal Bureau of Investigation learned through Abrams that there had been this contact of Abrams by Agent Smazel, Agent Smazel went to see Abrams at his place of employment in the Washington Post, Saturday morning, March the 20th, 1954. And Agent Smazel told Abrams, “I'm interested only in the Hugh Bryson advertisement. Here it is. I didn't know you were sitting on the Gold case, I'm not investigating you.” Thereafter, on that Saturday, it was immediately called to the attention of the United States Attorney's Office, I myself happened to be in New York on the Gold case. The United States Attorney immediately went into action, this was a Saturday, if Your Honors will recall as I stated and the record so shows. The United States Attorney immediately went into action. When I came home that evening, I was surprised of the matter for the first time. I thereupon held a conference as the record will indicate because I made my statement during the course of the hearing before Judge McLaughlin all day. I held a conference in the Department of Justice and called the FBI agent there and several of the attorneys in the Department. I have the list of the jurors sitting in the Gold case. I make it a business to keep those jurors in my mind when I can. So the thought occurred to me when the agent explained to me that he didn't know that there were any February jurors still on there, that he might have not only contacted the wife of Abrams but that he might have contacted someone else. So I said, all right, I'll name -- I'll read these names, if you contacted anyone else, I want to know about it. And on reading the names, I found that the agent unknowingly, obviously, that he was contacting anyone sitting in the Gold case, had contacted on the phone juror Morton and had contacted the wife of Juror (Inaudible), gone over there -- he'd gone over in the morning of Friday, the 19th day of March and talked to Juror (Inaudible) wife.
Felix Frankfurter: When did Abrams talk to him?
Joseph A. Lowther: Abrams' wife was talked to --
Felix Frankfurter: No.
Joseph A. Lowther: I'm sorry, Your Honor.
Felix Frankfurter: I want to know when -- as I -- as I hear that Abrams himself, after his wife told him, went to the FBI appealing (Inaudible), is that right?
Joseph A. Lowther: That is correct, sir.
Felix Frankfurter: Now, when was that?
Joseph A. Lowther: My recollection and I'm sure I might on this -- is March the 20th in the morning.And thereafter --
Felix Frankfurter: They had already -- in the meantime, they -- they -- the FBI agents, whose names I do not know, they had already talked to Morton and the other person.
Joseph A. Lowther: That is correct, Your Honor. That is correct. As soon as the situation -- as soon as I discovered that there were two others who talked to either on the phone or the wife of (Inaudible) was talked to, I conferred with the United States Attorney at his home, that Sunday afternoon. And it was clear that it was incumbent upon the Government in the light of the first Remmer decision which came down on March the 8th, about two weeks before this incident happened, and even if the first Remmer decision hadn't come down, obviously, it was incumbent upon the Government that this was a matter to be called to the trial judge's attention in (Inaudible). Well, it was done the best we could do it. That was a Sunday. Judge Rover called Judge McLaughlin and said there was a matter that he wanted to talk -- take up with him in chambers. I personally, when I returned to my home, called defense counsel and told them that there was a matter to be taken up. I didn't tell them what it was. In the morning of Monday, March the 22nd, we repaired. And when I say we, I mean myself, Judge McLaughlin, all counsel for defendant Gold and no question was ever raised in any time about defendant Gold himself not being at the hearing, repair to the judge's chamber. There was no request that this be held in open court and from 10 o'clock in the morning until about 4:30 in the afternoon, if my recollection serves me correctly and the volume of the records will bear me out in volumes 4 and 5, Judge McLaughlin heard from Mr. Leo Rover, Judge Rover, the United States Attorney who gave his statement as to how the matter had been brought to him. A Mr. (Inaudible), who was an attorney working on the Bryson case, Agent Smazel, who was the agent who made the contact, Agent Smazel who was the agent on that Saturday morning of March the 20th to whom Abrams came in person down at the -- at the local FBI office. Up to that point, there was ample opportunity and the defense wasn't asked to post questions, asked to cross-examine and they did.At that point, Judge McLaughlin with the first Remmer decision before him and that's adverted to in the record, said, “I do not find from these facts as adduced here that this was a contact with a juror about a matter pending before the jury, nor was it an investigation of the conduct of the juror.” Now, understand me why, Your Honors, that is before any jurors are called in. At that point or shortly thereafter, Judge McLaughlin on the suggestion of government counsel and the record will bear me out with full concurrence of the petitioner Gold's counsel to this extent said that he would call in the three jurors (Inaudible), Morton and Abrams. Petitioner's counsel wanted him to call him in and question him, but they didn't want the trial judge to ask the jurors what their reactions to the contact was. Judge McLaughlin said that he was going to ask them respect -- concerning their reactions to the contact and it's submitted, if Your Honors please, that he was duty-bound so to do because the first Remmer decision verbatim -- the whole reason for the remand in the first Remmer decision as I read it is because the trial court without telling the defendant, without letting anyone else to know, and without even having a hearing brushed the matter aside. And this Court sent the case back in order that the trial court might inquire into the impact of any contact on the juror's mind.And that's what Judge McLaughlin did. And he called in Abrams and he called in (Inaudible) and he called in Morton. Abrams, during the course of interrogation and defense counsel were asked if they wanted to ask questions, were asked if they would post questions. Abrams said when asked how he felt on exhaustive probing by Judge McLaughlin, who was a learned judge. Abrams said, "You ask me how I feel? I -- I feel -- I think I feel somewhat intimidated." The judge made it clear as soon as Abrams had stepped out, Abrams will be excused from this jury. (Inaudible) and Morton, Morton who was contacted on the phone made it clear and the transcript will bear me out that the agent, when he talked with Morton on the phone, was not and did not refer to the Gold case in any way, shape, or form. When asked as to if anything had happened --
Earl Warren: Did he refer to that kind of case?
Joseph A. Lowther: You mean in haec verba Your Honor? I mean in -- in --
Earl Warren: I mean did he -- if he referred to cases like the Gold case, Communist cases.
Joseph A. Lowther: I think that Morton testified -- if Your Honor indulge me one second so that I may be accurate on this. Morton, Your Honor, testified that his -- testified that Smazel said this, Smazel, Your Honor, had said that he called and inquired whether Morton had received literature pertaining to the Hugh Bryson case. Morton said that he got the telephone call in Thursday evening and that Smazel said, "I knew you were on the jury panel for last month." Someone tried to get next to the jurors by sending propaganda literature to their house -- homes. He called, meaning Smazel, called the name of a case I didn't understand which obviously couldn't have been the Gold case. At least I'd heard nothing about it. And he asked if I'd received anything, and I said no, and I told him I was still on the jury. Smazel said he has no clear recollection that Morton ever told him that on that evening. Now --
Earl Warren: Do we have -- who's word do we have to take from this, the juror or the -- or the agent?
Joseph A. Lowther: I think, Your Honor, that the juror's understanding of what was told him even though he might be wrong is what you have to take. And I'm perfectly -- I think it would be an untenable position to say otherwise, but I further submit, if the Court pleases, that the first Remmer decision made it incumbent upon Judge McLaughlin to do just exactly what he did, namely, to inquire into the impact of the contact upon the juror's partiality. And when juror Morton, the one whom Mr. Chief Justice just questioned me about, was asked by Judge McLaughlin, not only asked but probed and probed extensively as to what his reactions were, he said, wouldn't affect me one way or the other. (Inaudible), the other juror who remained on the jury, Your Honors, was asked the same question, not asked at once, he was asked in the negative and the positive and with all one who answers, and he answered the same way. Now, it became --
Earl Warren: Why would the other -- why would the FBI agent call the others -- the other jurors after he had found out that one of them was serving on the Gold case?
Joseph A. Lowther: Your Honor -- I beg Your Honors' indulgence. That is not the -- the sequence as the Bureau agent testified.
Earl Warren: Was Morton last?
Joseph A. Lowther: No, Your Honor. Morton was on Thursday evening --
Earl Warren: Yes.
Joseph A. Lowther: -- but the agent said that he had absolutely no recollection of Morton telling him, as Morton says he did, that he was then on the Gold case. In other words, the first word that the agent had was when Abrams came down to the Bureau office, the -- the Federal Bureau of Investigation office the morning of the Saturday following the night that the agent had called Abrams' wife.
Stanley Reed: Is this -- the evidence of the conversation with the judge, copies as to that in the record?
Joseph A. Lowther: It is, Your Honor. It appears at the --
Stanley Reed: (Inaudible)
Joseph A. Lowther: No, Your Honor. The reason for that was that I like to try to extract them. I can read my own handwriting a little bit better than print sometime, makes a little more sense to me anyhow.
Hugo L. Black: Mr. Morton testified also did he not?
Joseph A. Lowther: He did, Your Honor.
Hugo L. Black: After he told that same day he was on the jury. At that time, Mr. Smazel asked him if he had received any propaganda about the case.
Joseph A. Lowther: That is what Morton testified, Your Honor.
Hugo L. Black: He testified.
Joseph A. Lowther: That is right.
Hugo L. Black: And after that and it was at the next day that he went to (Inaudible) or that night?
Joseph A. Lowther: No, it was the next day that Agent Smazel went to see (Inaudible) wife, Your Honor. But may I make it clear to Your Honor, that the agent made it clear abundantly that he had absolutely no recollection of having been told by Morton on the telephone conversation that Morton was a sitting juror. Morton says he did, the agent says that he has no recollection that he did. In other words, the point that I make to Your Honors is that the agent was not contacting (Inaudible) and Abrams after he had heard from Morton, at least in his own time because he says he doesn't recall that.
Speaker: I don't understand that your opponent is suggesting at all that this was deliberate effort to influence the jury by the Government. They don't make that charge, do they?
Joseph A. Lowther: Well --
Speaker: In other words, the case isn't a case in this posture that whatever the instructions whether they were given to the jurors, the FBI slapped over into this case. Didn't do a good job if you please or what not, the only question was that here is what the effect of all this was on the hearing.
Joseph A. Lowther: I think that that is the question without a doubt, Your Honor.
Speaker: (Voice Overlap) --
Joseph A. Lowther: Yes, Your Honor.
Speaker: So all of this long defense of the Government's position really is beside the point here, isn't it?
Joseph A. Lowther: Well, with all due deference to Your Honor, I don't think it's beside the point because --
Speaker: I can appreciate it if I was in your position, I want to make it clear too. But actually the issue we've got is simply whether or not the judge dealt with the situation that existed, arose without the Government's fault, if you please, adequate (Inaudible), isn't that all there is to it?
Joseph A. Lowther: That is correct, Your Honor. And with that in mind, if I may take one more moment of the Court's time, and the reason that I took this much time on the factual situation was because I didn't think that the factual situation with all due deference to my opposition was adequately brought to the Court's attention. One more bit on the facts, after it became apparent that there had been some conversation between Morton and (Inaudible) with some of the other jurors again on Government's motion, the Court brought everyone of the 11 remaining jurors on alternate end and inquired of them exhaustedly as to what they -- as to whether they had any reason that they couldn't be fair and impartial.
Felix Frankfurter: May I ask you this? What is the evidence (Inaudible) if I may say so, what is the evidence as to communications made by the three jurors who were approached (Inaudible) or on a knowledgeable way --
Joseph A. Lowther: Yes, Your Honor --
Felix Frankfurter: -- by the FBI agent. What was the evidence as to communications made by the three innocently (Inaudible) jurors to the other jurors?
Joseph A. Lowther: The evidence, Your Honor, is this that they all -- five of them said that they've heard something. They didn't say what they'd heard.
Felix Frankfurter: Something as vague as that?
Joseph A. Lowther: It's nearly as vague as that, Your Honor. That they'd --
Felix Frankfurter: Is there no evidence -- is there no evidence in the record that the three approached juror, I cover the wives with the husbands (Inaudible)
Joseph A. Lowther: Yes, Your Honor.
Felix Frankfurter: The three approached jurors told some of their fellows, (Inaudible) that they had been visited or inquired of by the FBI agent. Is there no evidence to that effect?
Joseph A. Lowther: From the answers of the subsequent jurors, I think that it could be inferred that -- that Morton and (Inaudible) had told them that, but there's --
Hugo L. Black: (Inaudible)
Joseph A. Lowther: I beg -- I beg your pardon, sir?
Hugo L. Black: They said that in the courtroom.
Joseph A. Lowther: Morton and --
Hugo L. Black: (Inaudible) asked by the Court, ”Have you talked to any of the other jurors about this conversation?” The juror says, “Well, to my curiosity I just asked them if someone called them this morning.” Court - “How did you report this to the Court?” Juror - “Well, I saw the clerk, I guess, this morning. I reported to him after as to (Inaudible) And Mr. Morton also said -- he said -- he told some of the jurors, didn't he?
Joseph A. Lowther: Your Honor, I'm not in disagreement with that but Justice --
Felix Frankfurter: (Voice Overlap) --
Joseph A. Lowther: -- Justice Frankfurter's question was, is there anything in the record that reflects what the other juror said had been told them by Morton and (Inaudible).
Felix Frankfurter: My question was that if any of the five so-called said something whether they suggest Abrams or Morton told me about this FBI agent.
Joseph A. Lowther: At best it's vague, Your Honor.
Earl Warren: Mr. Lowther, suppose these -- these acts of the FBI which you say are innocent and which we don't the challenge. Suppose they have been done deliberately, the purpose of investigating, investigating the jury, would you call for a new trial?
Joseph A. Lowther: I'm not sure that I get the full burden of Your Honors' question. If you'll indulge me --
Earl Warren: We're dealing -- we're dealing with the reaction on the jury, are we not?
Joseph A. Lowther: Yes.
Earl Warren: And you said we'll have to judge by that.Now, the actions of the FBI in -- in going to the jurors that you say was -- where the action was innocent because they had no idea, they're investigating a juror. Suppose it had not been done in that posture. Suppose they have done it for the purpose of investigating a jury to create an impression on them, and suppose the jury had exactly the same reaction to it under those circumstances as the jury had in this case, would that call for a mistrial?
Joseph A. Lowther: Well, may I answer Your --
Earl Warren: Yes, you may.
Joseph A. Lowther: First of all, may I say with all due deference to the Court that of course the FBI wouldn't never be sent to make such an investigation --
Earl Warren: Oh, we're not -- we're not choosing anyone (Voice Overlap) --
Joseph A. Lowther: I realized that, Your Honor, but --
Earl Warren: -- putting a hypothetical case to you.
Joseph A. Lowther: Well, the posture which is in the hypothetical case. I think that if it could be shown that the Government, meaning -- say the United States Attorney, undertook to send the FBI to investigate the conduct of a sitting juror and for that purpose alone, which never would happen I'm sure, it would call for a new trial but --
Earl Warren: Even though -- even though the reaction on the jury under those circumstances was exactly the same as the reaction to this in this case?
Joseph A. Lowther: I would say that that case is not the same as this, Your Honor.
Earl Warren: I didn't say -- I didn't say it was.
Joseph A. Lowther: I'm sorry. I -- I mean to say the answer that I -- as I see it to Your Honor's question is this, I can't envision, number one, the situation never arising.
Earl Warren: Well, I think -- we'll -- we'll adjourn.
Joseph A. Lowther: Very well, Your Honor.