Your rights are on trial; Right to Definite Charge

The following tape recorded program is distributed by the National Association of educational broadcasters. You see the original charges were that I was a spy and that I was a top Soviet agent and that kind of thing. That was the actual voice of the defendant in our High Court case today a case in which your rights are on trial. Your rights are on trial as produced by the University of Minnesota radio station KUAR when under a grant from the Educational Television and Radio Center in cooperation with the National Association of educational broadcasters and the University of Minnesota Law School on today's program the case still call one last time or you will hear Owen Latham or his attorneys but first to set the stage for one of our most famous contemporary cases. Here is one of the consultant commentators for your rights are on trial associate

professor of law at the University of Texas Mr. Charles Allen right. The sixth amendment to the United States Constitution guarantees DeVry person accused of a crime the right to be informed of the nature and cause of the accusation. But. Problem. Sometimes very complicated problems as to what this right means arise even today. The most dramatic contemporary case illustrating these problems is United States versus I when Latham are a lot of more I was not officially charged with being the top Russian espionage agent in the United States and later officially charged with being a pro communist sympathizer. What do these charges mean like away. As we examine the case of Ellen Latimer and see how the criminal charges against him came into being. Listen for several things. Are the charges against him definite. Are they relevant. Do they really state a crime or do they fall into the area of

unpopular ideas. Finally of course how definite and significant is a legal charge have to be. These are the questions asked and answered in the case of United States versus Ellen White a more a case in which both an expert on the far east and one of your fundamental legal rights the right to be responsibly charged or on trial. For Owen Latimer an author and authority on the far east and teacher at Johns Hopkins University. It all began one cold March afternoon in Afghanistan halfway around the world. Mr. Latimer was one of five members of a United Nations technical assistance mission to Afghanistan. In his book ordeal by slander Owen Lattimore writes We were all working in one crowded smoky room around an iron stove that earned a lot of fuel but gave off a little heat. There was some scuffling and whispering at the door and the Afghan messenger came in

with him a blast there. He brought me a telegram which read WASHINGTON March 24th 950 I received Kabul Afghanistan March 25th. Senator McCarthy says off record you top Russian espionage agent in the United States and that his whole case rests on you stop. I have carried Mrs. Latimer's and Dr. Broncs denials of McCarthy at public Senate hearing that you pro-communist stop. Please cable your own comment on the cause of these accusations below. Associated Press. Six weeks later Owen Lattimore was in Washington D.C. testifying before an investigative committee of the United States Senate. At this time a lot of more was cleared. Some called this a whitewash. Others

such as the Philadelphia evening Boehner said quote. The result of this Senate hearing was a finding that the charges were a fraud and a hoax perpetrated on the Senate of the United States and the American people unquote own lot of what I was called before another congressional committee nearly two years later he was questioned for 13 days at this time as a result of this congressional committee questioning on November 4th 1952. The United States District Court for the District of Columbia so don't write him or with this indictment the grand jury charges on or about February 27 1952 in the District of Columbia and within the jurisdiction of this court all of them are the defendant here in having duly taken an oath before a competent tribunals and inquiring into matter then and there pending before the said subcommittee in which the law of the United States authorizes an oath to be administered that he would testify truly did

unlawfully willfully and knowingly and contrary to said oath state a material matter which she did not believe to be true. What all this official language adds up to is a charge of perjury although seven counts were presented against Owen Lattimore. They all fall into two categories. Law on an alleged deliberate misstatement of fact before the congressional committee and to statements or activities a lot of mores part which run contrary to one particular speech he made before the committee. Here is a dramatization of Owen Lattimore its legally provocative speech. All kinds of attempts have been made to depict me as a communist or a Soviet agent. I have in fact been falsely addenda fide as a fellow traveler or sympathizer or follower of the Communist Lionel promoter of communist interests. I want to make my position clear. I

am none of these things and have never been. I am not and have never been a communist a Soviet agent a sympathizer off any other kind of promoter of communism or communist interests. And all of these are nonsense. There obviously were numerous ways in which Mr. Latimer might be proved a perjurer if the facts were contrary to his statement and answers further questioning and much investigation however failed to show that Ellen Latham or ever was a communist or part of any communist operated us or under communist discipline. One statement by Latham or however still was left open for disprove. I am not and never have been a communist sympathizer all promoter of communist interests. On this program we are not concerned with anyone's political views. The problem here is much more simple. A man who stated under oath that he never has

sympathized with or promoted certain concepts is sympathy with a matter for legal proof. Can the promotion of ideas and interests be proved if they can. Is want to perjure for not realizing his own sympathies or the concepts involved here too personal and too abstract to form definite legal charges. Better these questions in mind as you hear additional excerpts taken from the congressional committee transcript which form the basis for the charge that the defendant testified falsely when he said he had not been a sympathizer or promoter of communism or communist interests. I have one more excerpt that I would like to read. Mr. Chairman from Mr. Latimer's book solution in Asia this is from page 139 and I quote The fact that the Soviet Union always stands for democracy is not to be overlooked it stands for democracy because it stands for all the other things here in America. We are in the habit of taking a narrow view of foreign claimants to the status

of democracy. The fact is that for most of the people in the world today what constitutes democracy in theory has more or less irrelevant since the quotation. Lot of Moore's book did seem to be pro-Communist and on lot of Maura testified under oath that he was not pro-Communist did this constitute perjury. But of Moore's defense here wasn't the quotation was taken out of context. The statement as presented in the transcript looks as if I had merely given a human just tic description of Soviet Russia as my own description without reference to the opinions of the people whom I had previously mentioned. Then no the complaint that you have to make against the committee is for not working I won't walk in the country let alone one for the complaint I have is that this particular paragraph is so clearly related to my statement of other people's opinions that it is a quotation out of context to put it in a manner that would lead the hero when he merely has it read to him to believe that it was a statement of my own opinion.

It appears to me that it would be a statement of your opinion but that's a matter for construction. Bear in mind that the issue here is the definiteness of the charge. Can one sympathies ever be definite enough to form the basis per charge of perjury. The second area in which I would write of my Was charge was comparatively more substantial. This area involved misstatements of fact. Is any lapse of memory perjury. Or does the misstatement have to be deliberately misleading and important to the bigger issues. Typical of this kind of charge against Owen Lattimore is what resulted from the following testimony. Again these are the exact words as dramatized from the Internal Security Subcommittee transcript. QUESTION Mr. Lott is or was. And you testified that your meeting with Mr Lomax he was after the Hitler invasion of the Soviet Union.

That's at the top of that page. That is page 37 of the previous times. Yes I stated that it was just before I went out to China so it must have been June or early July of 1941. Mr. Mandela when you were that if I that document place this is a photostat of a carbon copy of a letter from the files of the Institute of Pacific Relations It's dated July 20th 1941. It's addressed to all would let him alone with a typed signature. Edward S. card Mr. Chairman this is exhibit number thirty two already introduced on a public record. Mr. Obama I offer you that and ask if you have received that letter and the question is did you receive the letter is that the question. I presume that I did it was addressed to me in San Francisco. No it was it was addressed to me in Baltimore. Yes that's right. June 20th just a minute we'll have copies of that. What year 1941 that would be before the deadline to have sucked out of that.

Mr. Chairman assistant Gemini may I point out that this letter establishes the fact that my recollection was wrong in believing that I had at lunch with Mr. Carter and a Minsky in Washington after the Hitler invasion of Russia. It seems to have taken place before. Several things are clear here in about you awaiting the definite charge. First the bomb plot of Moore admits that he had a lapse of memory on the precise datable luncheon 12 years earlier. Is this perjury in itself or should the misstated fact be of significant importance. The congressional committee called in two witnesses to determine the importance of Brenda Morris misstatement on his luncheon date with the Soviet ambassador. The two witnesses were ex-communists Elizabeth Bentley and Whittaker Chambers. Miss Bessie do you think a conference of several hours to ration would have a considerable significance. I would think so. I would look into it. Would it make any difference of such a conversation took place say during the Hitler and Stalin pact. Would that have any significance at all to you Miss Bentley. I wouldn't think it would make any difference no

one make any difference to you Mr Chambers. I would understand what difference it might make it would make a historical difference I assume with like you always speculate during the Hitler-Stalin pact a foreign policy of the United States and Soviet Union were conflicting during a period of cooperation. There needs to be a framework within which somebody having the interest of the United States can confer with an official of the Soviet Union. Do you think that might cause a difference. I think it's a reasonable distinction but I should think that any such traffic as you describe would be of a fact that would interest the security agencies. For an answer to this charge here is the defendant in our case today or one letter more as recorded especially for your rights are on trial in Washington D.C.. Here is Mr. Owen Lattimore. I was accused of perjury because the meeting with the man's key had actually

taken place before the German invasion of Russia. Now why should this be so important or why should it be pretended to be so important. The obvious answer is that they were going to make out that any American who saw the Russian ambassador before the German attack on Russia could only have been seeing him because he was a pimp sympathizer. Maybe after the Germans attacked Russia then it was alright for an American to see the Russian ambassador. When Elvis succeeded in completely bypassing the important facts of the case. You see I was going out to China to work for junk I shake under nomination by President Roh. It's about at that time we were not yet in the war. The Russians were supplying China and by China I mean junk I checked they were supplying junk I checked with airplanes and munitions. So were we. But at the same time relations between America and Russia were bad. Now one of young

concerns was that he wanted to keep the friendship of America. And he did not want to have it receive Russian aid on a scale that would imperil his political and public relations in the United States. So obviously when I got to trunking of all the foreign embassies in Washington the one the junk I checked would be most likely to ask me about would be the Russian embassy. The status of the ambassador the status of relationships and all that kind of thing. Therefore it was not only a sensible thing but. So film and all of my proper duties as advisor to junk I should like to acquaint myself with what the Russian ambassador was doing and thinking in Washington. Just before I went out to Chongqing to work for junk I checked. That was the actual Royce of 0 1 let him or the defendant in our case today. This is Philip Gale producer of this series Your rights are on trial

on all of the programs as much as it is possible we try to bring you transcribe comments by qualified individuals on all sides of the case under discussion. After more than a few requests however I discovered that most of those who had been engaged in the prosecution of one lot of more were not available for comment. Now this may be understandable in the light of the fact that at the time this case was in the headlines feeling ran high against I want to add a more congressman demanded that attorney generals prosecute and convict him. Senator McCarthy statements and the charges against a lot of more were given extensive coverage. The prosecution was faced with high emotion and a public demand for conviction. Since these are all maybe things of what some would prefer not to be reminded we will limit the comments on this case to the High Court opinion and a few words from the defendant Mr. Latimer and his attorneys. There actually were three separate opinions in this case from the United States District Court in the District of Columbia.

The opinions were given by Judge Luther young dog. The final opinion was presented on January 18th 1955. Here now are portions of the decisions from the district court by Judge Luther young and a lot of more case. On February 26 1952 defendant was permitted to testify before the committee and made his statement a part of the record. In the course of making this statement defendant was questioned further. This portion of the hearings lasted 13 days. Apparently the committee could discover no evidence from its investigation or the testimony of the various witnesses that defendant lied in the nine he was a communist a member of the Communist Party a Soviet spy or a fellow traveler. The indictment here charges defendant with committing perjury as to his sympathies with communism or communist interests. It appears from the record in the hearings of the committee that the charges reflected in the seven counts in the indictment are

related to a period of 15 to 20 years before the hearings. With this factual background we will proceed to a consideration of the several motions presented to the court dependent on the first count is charged with lying and denying that he was a sympathizer or promoter of communist interests. It seems to the court that this charge is so nebulous and indefinite that a jury would have to indulge in speculation in order to arrive at a verdict. It is fundamental that our jury should not be asked to determine an issue which can be decided only on conjecture. It is clear to the court therefore that the first count fails to meet the test of definiteness required by the Sixth Amendment and Rule 7 C of the Federal Rules of Criminal Procedure. But there is another reason why Count one is fatally defective. It is in conflict with the First Amendment. The First Amendment protects an individual in the expression of ideas

though they are repugnant to the orthodox communism's fallacy and viciousness can be demonstrated without striking down the protection of the First Amendment of discourse discussion and debate. Applying these guiding principles to count one. This count must follow because it is violative both the first and sixth amendment. Count three charges that defendant perjured himself when he said he did not know that a Z Atticus was a communist. Count four charges defendant perjured himself when he stated that he while editor of Pacific affairs had not published articles by persons whom he knew to be communists. Other than Russian contributions the question of knowledge is even more nebulous than sympathies. What he could have meant when he said he did not know gives rise to speculation and conjectures but speculation cannot be substituted for proof beyond a reasonable doubt. Defendant is the only person who will ever know what he meant when he said he did not know the daisy

Atticus was a communist. Who can say whether he meant that he did not believe or suspect or feel or have reason to think any one or all of these still might not constitute knowledge within his own mind. The arguments against the validity of Count 1 are even stronger when applied to count 3 and 4 counts 3 and 4 must also be stricken down as Violet of the first and sticks amendments come seven is clearly defective in its plain inconsistency and indefiniteness as the court previously indicated. There is serious doubt whether the remaining counts to five and six can ultimately pass the test of materiality. So I was to present a jury issue. But this must await the trial. The charges here serve only to inform the defendant that his sworn statements are to be

tested against all his writings for chance parallelism. We have our indirect support of communism regardless of any deliberate intent on his part. They demonstrate that the government seeks to establish that at some time in some way in some places in all his vast writings over a 15 year period L'Amour agreed with something it calls and personally defines as following the communist line and promoting communist interests jury inquiries would be limitless. No charge by the court could embody objective standards to circumscribe and guide the jury in its determination of what the witness might have meant regarding words he used with so sweeping an indictment with its many vague charges and with the existing atmosphere of assume then expected loathing for communism. It would be neither surprising nor unreasonable where the jury is subconsciously impelled to substitute its own understanding for that of the

defendant. To require a defendant to go to trial for perjury under charges so formless and obscure as those before the court would be unprecedented. It would make a sham of the Sixth Amendment and the federal rule requiring specificity of charges. The indictment will therefore be dismissed. You have just heard portions of the United States District Court decisions by Judge Luther young Darwin relationship to the Lattimer case. In the first opinion Judge Young Dawes stated that there were three charges that still might come up for trial and talking to an item or I was of course curious as to why these three charges did not come up for trial. Here is the answer Mr. Latimer gave me. It was obvious that the matter was dealt with were so unimportant and trivial that they couldn't possibly be material. Then as time went on and the hysteria grew less Senator McCarthy

had thoroughly discredited himself before Senator Lott kins Committee. It was politically less dangerous to drop the charges and the government which has long ago discovered that the. Q Sion was an absurdity in itself but had been politically afraid to drop it took that opportunity to get out from under that was the defendant in our case today. Well in that Amar is estimated that his legal fees would have cost him well over a quarter of a million dollars. As it was they cost him nothing. His case was handled by the law firm of Arnold Fordson Porter in Washington D.C. His firm believe that there were very important principles involved. As interviewed in the Law Offices of Arnold Forrest and Porter here are two of the attorneys in the Adam Ward case Paul Porter and William Rogers.

First Mr. Porter as you possibly know the item Ortiz was decided by the Court of Appeals the District of Columbia that the indictment brought to the government. I was not. A proper indictment because it was so vegan general in the field of political opinion and comment that no one could be expected to curry the founts. As counsel for a lot of more this office has been housed and characterizing the whole procedure as one of political persecution. And we have felt from the beginning that irrespective of the views which Dr Lata Moore had 15 years ago there was no overt act no question of association membership or the usual kinds of things. This was undoubtedly inspired politically prosecuted politically and the Court of Appeals twice and the District Court twice

reached down to state the government's hand from indulging in what I think was an obscene political persecution. Mr. Rogers what might have been the negative significance of a case like that a murder case if it if it hadn't stopped at this point what it applied to more people than he will in the end hearing this guy. Yes I think it would have reconsidered a lot of work case at the time we were working on it as a very important case not just in terms of its defense of the letter more but in terms of. President for purposes of other possible proceedings that the government might have tried on the same line the lot of more case we think was unique. It was an attempt by the government to penalize a lot more for his past opinions. It employed a technique which we think could have been used against almost anyone. The government would have been permitted at a trial to introduce testimony of almost any imaginable sort.

Therefore we thought at the time and we still feel that had the government been permitted to go forward to trial in this case it would have thus gotten a judicial sanction for a technique of prosecution which it could have applied to you to me and to almost anyone. And now for a summary of today's case once again associate professor of law Charles Allen right. It is interesting to compare the outcome of Latimer's case with the case of William Remington Remington was tried and convicted a few years ago of perjury. The jury found that he had lied when he said under oath that he had never been a member of the Communist Party. His conviction was reversed by the Court of Appeals. The government had not proved that Remington was a card carrying member of the party. It shown only that he did certain things such as letting the Communists use his post office box as a mail address which so the district attorney argued and the jury believed would

only be done by a member of the party. The Remington case is interesting for this reason. Remington didn't go for a government after the first conviction was reversed and indicted him for perjury again. But the second time a claimed he had lied on certain specific matters which mean the same thing to everyone rather than on such a vague question as membership in the Communist Party. Once again the jury convicted him and this time his conviction was upheld and he went to jail for this time he had had definite charges and all the other safeguards which our Constitution insures. Comparison of the Remington case with a lot of Mark case shows that observance of constitutional standards does not mean the criminals cannot be punished. If a person is really committed a crime the government can make a definite charge and convict him on that charge. But the right to have definite charges does protect the O-N lot of Mars from being tried and convicted though they have not committed a crime. Due Process of Law sometimes is slow in

Tejas but it is also sure criminals can be brought to book eventually. By constitutional means. When the servants of constitutional safeguards offers the only real assurance that innocent persons will remain free. You have just heard the case of the United States vs. on light of all the program in this series. Your rights are on trial. Produced by station KUNM in cooperation with the University of Minnesota Law School under a grant from the Educational Television and Radio Center. This program is distributed by the National Association of educational broadcasters. What is your right to fair bail. This question will be answered next week in the case of the Communist mail. Another in this series of authoritative discussions and authentic dramatization in which you all right.

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