Introduction

Years ago, when I tried to enlist the services of the great defender of the underdog, Clarence Darrow, against a free speech prosecution of some midwestern radicals, he refused, not because of lack of sympathy but, as he said, because it was hopeless. “You can’t get anybody off in these radical cases,” he said. “Whenever I get a case with anything radical in it I cut it out. I’m not taking any more of them. I am just defending murderers and other respectable criminals; sometimes I can get them off.”

What Darrow observed then is the theme of lawyer Kunstler’s selection of cases where justice might have yielded to community passion and prejudice. The cases are not exceptional: they are symptomatic. In the First World War, passion against dissenters rose so high that, in surveying the wreckage of the hundreds of federal prosecutions for anti-war utterances, the then Chief Justice of the United State Supreme Court, Charles Evans Hughes, was moved to wonder whether “American democracy could survive another great war, however victoriously waged.”

Half of the ten dramatic court cases skillfully analyzed by lawyer Kunstler for laymen are still for me vivid experiences in the struggles of the American Civil Liberties Union for fair trials against fear and prejudice. All but two of them occurred during the period of my active association with the Union from 1920 on. In some the Union was only indirectly involved; in others it directly took part, and in one, the trial of Scopes for teaching the theory of evolution, the Union initiated the prosecution and handled the defense.

This experience confirms the thesis underlying Mr. Kunstler’s selection of a few of the hundreds of cases he could have cited to show how difficult it is for juries and judges to rise above community fears to deal justly and fairly with unpopular or hated defendants. In most of the cases, “who you were, not what you did,” was on trial, what you represented as a threat to majority prejudice or dominant powers, not what you represented as a force of protest or progress with a claim on equal justice.

It is an old story forever new, and the lesson of history needs constant repetition for us in the United States in terms of our time. It was just such community hostility that condemned Socrates before the jury of Athenian citizens, and forced Pontius Pilate to turn over Jesus of Nazareth to the jury of priests. The witches of Salem were hung in a fury of community condemnation, with the blessing of clergy and officials. In our times, Mr. Kunstler could have brought to witness the hundreds of cases against members of the Industrial Workers of the World before and after World War I, condemned even before they were tried as destroyers of property and enemies of government. Or coming up to date, he could have cited dozens of prosecutions of Communists in which conviction was a foregone conclusion, whatever the charge.

His selection omits these cases in favor of more dramatic and better-known trials illustrating a larger variety of intolerances, racial, religious and political. Only four of the ten involve political radicals,—three of them the casualties of cold war fears for national security. All the defendants are long since dead or freed, with the sole exception of Morton Sobell, convicted with the executed Rosenbergs, now serving a savage thirty-year sentence. The stories are therefore history in the dark chapter of dubious trials, with no call to present action.

What lessons can be learned from the record? Mr. Kunstler offers a few in his preface. I would add one or two of my own.

The emphasis on due process of law as the basic guarantee of our liberties, so often voiced by courts and lawyers, and reasonably true in ordinary trials, is secondary where prejudice prevails. And prejudice is not confined to the fears of war-time, hot or cold, or to the racial conflicts dramatized by a case nationally or internationally famous, as most of these in this book were, but it exists in our courts every day all over the country. What Negro can be assured that he will get equal justice with a white man for the same offense? What Mexican-American in the Southwest? What Puerto Rican in our eastern cities? Is justice as equal in any court for the non-conformist and unpopular as for the regulars?

If our juries and judges are to approach the goal of even-handed justice, we need the restraints, as Mr. Kunstler suggests, of fewer trials by newspapers, more searching screening of juries, more resolute and independent judges, and public defenders, competent to counteract prejudice, for indigent defendants. I would not tamper with the jury system, imperfect as it is in rising above community prejudice; but skilled defense lawyers always know, when there is a choice, whether a judge or a jury is likely to assure a fairer trial.

Not all the cases Mr. Kunstler presents came out badly. Some had salutary effects, even striking. The impact of the Tennessee evolution case was so profound that, although anti-evolution laws were not repealed, they were nullified in practice. The resistance to the McCarthy inquisition, set forth in the Lamont case, combined with the Senator’s own excess of zeal, destroyed him as a political demagogue though the prejudice and fears he aroused continue, greatly diminished, under cold war pressures. The recent school prayer decision will doubtless do much to clarify the delicate relationship between church and state.

The short-range good won from the evils of most of these trials may be matched by their long-range effects if the lesson Mr. Kunstler impresses on us is learned in the administration of justice. But it is a hard task to guard against the prejudices and fears of an aroused community, as all history shows, and yet one which must be achieved if our professions of justice are to be vindicated.

Roger N. Baldwin Founder of the American Civil Liberties Union

New York, N. Y. October 9, 1962