Preface

In 1953, Professor Edmund M. Morgan, of Vanderbilt University’s School of Law, in his introduction to a reprint of Felix Frankfurter’s The Case of Sacco and Vanzetti, wrote: “In times when the opinion of the community is shot through and through with deep-seated prejudices concerning race, social class, economic theories or political ideologies, a case in which either the issues or the parties involved touch these prejudices, arouses passions which becloud judgment and make impossible a fair consideration of the evidence.” Like Professor Morgan, I have always felt that “the fixed preconceptions of the community” can, in too many instances, contribute more to the outcome of criminal trials than the quantity or quality of the evidence. It was with this uncomfortable thought in mind that this book was conceived and written.

I do not claim that all the cases which appear in this collection bear out the truth of Morgan’s observation. But they do illustrate some of the difficulties that confront a defendant who is being tried in an environment that is, to say the least, hostile to him or his cause. This does not mean, of course, that his chance of a fair trial are hopeless. But it goes without saying that he must struggle against greater odds than those faced by others accused of crime who are more acceptable to the community.

Leo Frank, for example, was an outsider and a Jew charged with a particularly heinous crime. As the judge who presided at his trial so aptly put it, “If Christ and his angels came down here and showed this jury Frank was innocent, it would bring him in guilty.” The Scottsboro boys were southern Negroes accused of raping two white women. The fact that the complaining witnesses were tramps, the defendants young boys, and the evidence far from convincing, did not deter three successive juries from imposing the death penalty. Sacco and Vanzetti were immigrant Italians whose anarchistic views had made them anathema to a society which sought its salvation in Attorney General Mitchell Palmer and his pre-dawn raids. Mary Surratt, Alger Hiss, the Rosenbergs and Corliss Lamont were, in one way or another, enemies of the state, Tom Mooney an obstreperous labor agitator in an era of anti-unionism, John Thomas Scopes a threat to the Bible, and the five petitioners in the recent Herricks school prayer case against God.

In all but three of these cases (Mary Surratt was tried by a military commission, Corliss Lamont’s fate decided by a solitary judge and the school prayer petitioners were limited to a single-judge court) the defendants faced juries which were prepared to believe the worst of them before their trials began. Mrs. Surratt was judged by nine army officers wholly subservient to a vindictive, autocratic Secretary of War, and Dr. Lamont, although he was spared a jury trial by the dismissal of the indictment against him, would undoubtedy have been confronted by a panel not overly favorable to an acknowledged leftist who had defied a congressional investigating committee. But, whatever the mode of trial, or type of tribunal involved, the fundamental fact remains that all the pariahs had to run the gamut of a hostile climate of opinion which militated strongly against their chances of success.

The dilemma of the unpopular defendant (or plaintiff) has caused grave concern to those interested in the just administration of the law. Many solutions have been suggested. Some have urged that, as in Great Britain, the news media be forbidden to report any but the most rudimentary details of pending civil or criminal cases. Others have proposed that more frequent changes of venue be granted by the courts. Still others have questioned the validity of the jury system itself. It is my hope that the cases in this volume will illustrate the gravity of the situation and provoke some fruitful discussion of the problem. As Prof. Morgan points out, “the administration of justice, particularly in times of crisis, is one of the most important functions of government.” It deserves the immediate attention of us all.

William M. Kunstler

New York, N. Y. September 15, 1962

“I PLEDGE ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA AND TO THE REPUBLIC FOR WHICH IT STANDS, ONE NATION UNDER GOD, INDIVISIBLE WITH LIBERTY AND JUSTICE FOR ALL.”

PLEDGE OF ALLEGIANCE TO THE FLAG

Table of Contents

Introduction VII

Preface XI

1. She Helped to Kill a President United States v. Surratt 1

2. Atlanta’s Northern Jew Georgia v. Frank 24

3. In Union There is Death California v. Mooney 37

4. Anarchists With Bloody Hands Massachusetts v. Sacco and Vanzetti 65

5. He Defied the Bible Tennessee v. Scopes 102

6. Their Skin was Black Alabama v. Patterson 120

7. A Traitor from Harvard United States v. Hiss 137

8. They Gave the Bomb to Russia United States v. Rosenberg 170

9. Contempt by Silence United States v. Lamont 194

10. Five Against God Engel v. Vitale 210

Bibliography 230

Index 232