Page 76 - ACTL_Sum23

Without the knowledge of their lawyers, the Philadelphia defendants initially tried to advance the same strategy. The day before arraignment they issued an open letter assert- ing that they would use the trial to identify to the “bar of public opinion” the “true conspirators against the best in- terest of our people.” They identified the lead conspirators as President Eisenhower, Joseph McCarthy and Attorney General Brownell. The Philadelphia Inquirer published ex- cerpts of their letter under the front-page headline: “Phila- delphia Reds Threaten to Make Trial a Circus.” McBride quickly repudiated that strategy in a statement to the press. From the vantage of 2023, it is difficult to fully grasp the country’s red scare hysteria in the early 1950s. China had fallen to the Communists in 1949 and North Korea had invaded South Korea in June 1950. It was the age of “nam- ing names.” Former Communist Party members identified other members and suspected sympathizers in public hear- ings resulting in the publication of their names, addresses and employers. The Hollywood Blacklist is the most familiar example, but the effort was far more pervasive, local and petty. In 1954, the House Unamerican Activities Committee conducted a road show in various cities in an effort to cleanse public schools of “Reds.” The Committee convened a public hearing in the federal courthouse in Philadelphia during which paid informants listed the names of teachers who had allegedly been associated with the Party in the past. The teachers were identified to the press in advance and subpoenaed to testi- fy. Many invoked their rights under the Fifth Amendment leading to death threats. Their names, photographs, home addresses and school assignments were published in the Phil- adelphia Inquirer the next day, leading to their subsequent discharge, a process upheld by the United States Supreme Court in Beilan v. Board of Education, 357 U.S. 399 (1958). The government’s approach in Smith Act cases was to pros- ecute the Communist ideology more than focusing on the defendants’ specific acts, by offering a combination of tracts by Marx, Engels, Lenin, Stalin and other theorists – the so-called “classics” – which were then “interpreted” by paid informants who claimed to be “reformed” communists and who were proffered as experts. The same informants then identified defendants as having attended Party meet- ings, educational programs, fund raising dinners, anti-war demonstrations or as acting as Party officers or editors for its publication, The Daily Worker. There was generally no evidence of violence or advocacy of violent action by the individual defendants beyond flowery rhetoric. The United States Supreme Court observed, in Yates v. United States, 354 U.S. 298 (1957), that these Smith Act trials consisted of: the routine introduction in evidence of massive collections of books, tracts, pamphlets, newspapers, and manifestoes discussing Communism, Socialism, Capitalism, Feudalism and governmental institutions in general. . . . The testimony of witnesses is comparatively insignificant. Guilt or inno- cence may turn on what Marx or Engels or someone else wrote or advocated as much as a hundred or more years ago. But for the very reason that the government prosecuted the ideology, the defendants and their movement lawyers often took the bait and used the trial to attack the capitalist system, defending the movement in accordance with Party dictates. The Party reasoned that, based on the assumption that the defendants could never get a fair trial in the rigged capitalist system, the defendants must use the trial forum to demon- strate the system’s injustices and ultimate doom as predicted in Marx’s Communist Manifesto. The New York case was a disaster for the defendants, who adopted the Party’s strategy. The defendants and the defense lawyers – who were movement and left-leaning labor union lawyers, not criminal defense lawyers – mounted a sustained attack on the judicial system with constant interruptions, re- petitive and recalcitrant objections and personal attacks on the trial judge. It did not end well. Several of the defense lawyers were disbarred for their conduct during the trial. Immediately after imposing sentence on the defendants, the trial judge summarily held the defense lawyers in contempt and sentenced them to jail terms, later resulting in the vali- dation of a trial court’s summary criminal contempt power in Sacher v. United States, 343 U.S. 1 (1952). The pretrial proceedings for the Philadelphia defendants dragged on for weeks when no lawyers would represent them, most of whom languished in jail because no bail bond agency was willing to issue release bonds for “subversives.” Bernard G. Segal, then Chancellor of the Philadelphia Bar Association and a named partner of a large institutional law firm, at the instigation of the American Civil Liberties Union, organized a defense team around Thomas D. Mc- Bride and his partner Michael von Moschzisker, the leading criminal defense lawyers in Philadelphia. Segal then asked several large law firms to commit their best young associates to the team, three of whom were later inducted as fellows. McBride announced that they had assembled a blue ribbon team— we would call it a dream team now—of those young lawyers who were described as “luminaries” by The Phila- delphia Inquirer. McBride assured the press that the defense would ensure that the accused would be “given a fair trial without resorting to the defense tactics that have marked other trials of accused Communists,” a clear reference to the New York debacle. Public bias was palpable: Julius and Ethel Rosenberg were executed several weeks before the arrests; the Korean Ar- mistice was announced the day before but the hostilities 75 JOURNAL