Your rights are on trial; Right to impartial jury

The following tape recorded program is distributed by the National Association of educational broadcasters. We invite you to listen now to the story of how your constitutional guarantee of trial by an impartial jury became involved in the case of a communist leader. A case in which your right Ryo. The book. With. Here is a case of Dennis vs. the United States. The eleventh program and you are right. The University of Minnesota radio station under a grant from the Educational Television and Radio Center in cooperation with the National Association of Broadcasters and the University of Minnesota Law School. And now to today's exciting case and to explain the American right involved

here is one of the consultant commentators for your rights are on trial professor of law at Columbia University. Mr. Munn red balls and seems to have a strong and final sound to most of us when we hear about the injustice we may get visions of mighty Latin phrases inscribed in rock defying time in the elements. In practice however justice are dynamic and their very existence may depend upon the understanding and courage of someone very much like you. In his opinion our case today Mr. Justice Jackson said the right to fair trial is the right that stands guard over all other rights. But how does the Constitution guarantee a fair trial. The Sixth Amendment of our Bill of Rights provides that the defendant gell enjoy the right to trial by an impartial jury. In other words the Guardian right of our entire system of law and justice rests upon our

ability to have an impartial jury. You can be a jury member so the system can rest upon your shoulders. A free and democratic system often requires the average person to show above average fortitude and genuine heroism if the system is to remain free and democratic. If this sounds at all exaggerated or dramatic listen to our case today. It's a very simple case. Congressman Jay Parnell Thomas German of the House Committee on Un-American Activities invited Eugene Dennis general secretary of the Communist Party to testify before the committee on April 9th. One thousand forty seven on this day. Dentist lawyer appeared before the Un-American Activities Committee with a note from Eugene Dennis that stated this is to inform you that I shall not attend a meeting of your committee on a pro-life 1947 on June 23rd one thousand forty seven. Eugene Dennis was on trial for contempt of

Congress. Dennis appealed for his conviction at this trial on the grounds that he had not had an impartial jury. If the Supreme Court agreed that Dennis was denied an impartial jury his conviction would have been reversed. Now to appreciate fully a constitutional system's demand for extraordinary heroics from ordinary people. Assume you are a government employee in Washington DC. In 1947 you are called to serve on the jury for the trial of Eugene Dennis. You were asked to judge an American citizen who happens to be secretary of the Communist Party on a specific charge of contempt of Congress. Do you think you could be an impartial juror in a case at that time. Before you answer let us look at some of the surrounding situation. Briefly here are some of the events that occurred in the place of your employment. Washington D.C. directly preceding the trial in question.

March 21st 1947 President Truman signed the executive order 9 8 3 5. You loyalty order provides there shall be a loyalty investigation of every person entering the civilian employment of any department of the federal government the head of each department of the government shall be personally responsible for assuring that disloyal employees are not retained in employment shall be established in a civil service commission a loyalty review board each department shall submit to the Federal Bureau of Investigation the names of all its incumbent employees. One may be refused employment or removed from federal employment by evidence showing membership in affiliation with or sympathetic association with any foreign or domestic organization association movement. Group or combination of persons designated by the attorney general as totalitarian fascist communist or subversive or as having adopted a policy.

March 26 1947. I mean this party and us branded as fifth column by J Edgar Hoover a poll for Congress considers two bills to outlaw the Communist Party in the United States. May night. President Truman asks Congress for appropriation to carry out new loyalty order. These were some of the events in Washington directly preceding the trial of communist Eugene Dennison contempt of Congress. The trial was to be held in the District of Columbia dentist attorneys claim that any federal employee in our nation's capital could not be an impartial juror. At that time they protested the seating of all government employees as jurors even two who testified as follows. What you will hear now is a dramatization of a part of the court records in the selection of the jury for the Dennis case. Now Mr. Holford you are familiar with the government loyalty investigations. I

believe I've heard something of it. Do you feel that rendering a verdict of not guilty in this case if you come to that conclusion. Well the loyalty program stop you won a verdict of not guilty cause you any criticism or embarrassment among your fellow employees. None whatsoever by your superiors. You know you would not have any thought that not guilty verdict would be taken as evidence of friendliness to communism. No I'm not worried about my job that way. Now Mr. Jones you have heard have you have the loyalty test or loyalty investigation which is going to test the loyalty of government employees. I've heard of that. Yes I have. Are you aware of the fact that one of the tests that might disqualify or prevent you from government employment is friendly association with any communist person or any Communist organizations. Well that would not I'm a civil service employee. I have a I've taken examinations for my job.

But are you aware of the fact that despite any civil service protection still a finding that you were in friendly association with any communist or communist organization would render you ineligible to continue in your government position. I would not want. It would not. Wild your whole herd the first YOUR may have been courageous. The second was simply misinformed. Civil service or not Mr. Jones could be removed from his job if deemed a security risk. Dentist lawyers believed impartiality was too much to ask of a government employee at that time in their oral argument it was asserted the meaning of sympathetic association with subversives is undefined in the executive loyalty order and there is no assurance that it may not be construed by the attorney general to include a recognition of the rights of a member of the Communist Party. Whether Dennis could be given a trial by an impartial jury is a question to which there are two principal aspects. The dentist the jury consists of

government employees and the government was prosecuting Dennis. Can one have a fair trial when all or most of the jurors are in the pay of your adversary in that trial. This matter had before the Dennis case been decided in favor of the government. The government is so large and impersonal that a juror it was felt is likely to feel no special obligation to decide in its favor. Even though the juror works for a federal agency. But will a juror feel so free when deciding a matter involving a communist the government has a security program and those who are disloyal can be dismissed. Might not a vote of acquittal for Dennis be considered evidence of a juror's disloyally. What you may be saying at this point. Why is a communist in title to a fair trial. Wouldn't they deprive us of rights. Why should we allow them constitutional privileges. Why should communists have impartial juries

and fair trials from this general view. Rights and legal procedures simply get in the way of giving evil people their just deserts. As appealing as this concept may be at times it never can be the concept of a free and decent society. This is best understood if you will think of one thing. What is a system of justice like in a totalitarian state. Or what is justice with a mob. Exactly so it is a system without impartial jury without fair trials without legal searches without legal seizures without any basic right to counsel bail. Appeal and all the rest. If our test cases do not involve communists dope peddlers in the like but instead involve nice people placed in the box of prosecution we've already come too far along the road to tyranny. Occasionally because of constitutional procedures some unsavory

individuals go free. This is one of the calculated risks of a society that wants both freedom and justice. Democracy and decency are synonymous with equal justice under law. This is an idea that is easy to agree with in the abstract but as we pointed out earlier it may call for extraordinary heroics from ordinary people. When it comes down to actual practice in a real situation a situation like the one in our case today as a federal employee would you have dared to be an impartial juror in the trial of Eugene Dennison 1047 a juror undoubtedly would have been aware of the feeling of our Congress about Venice the following dramatization include some of the exact speeches and speakers as printed in the official congressional record for April 22nd 1947. All of these things were reported to have

been actually said on the floor of the Congress. I shall recognize the chairman of the Committee on Un-American Activities Mr Jay Parnell Thomas of New Jersey. Mr. Speaker I offer a privileged resolution and ask for its immediate consideration. Resolved That the speaker of the House of Representatives certify the willful deliberate and inexcusable refusal of Eugene Dennis to appear before the Committee on Un-American Activities in response to the subpoena served upon him to the end of the said Eugene Dennis may be proceeded against in the matter and form provided by law. Mr. Speaker I yield to the gentleman from South Dakota. Mr Monk. Mr. Speaker. We have before us in this particular case a communist. I want usually importance and power. You see Dennis you still comply with an official

order of government. I hope that whatever judge has before him this particular contempt case after the House vote see it as I am sure this house will. That the judge will uphold the dignity of the courts and the Constitution to the point of giving you Jean Dennis the maximum penalty allowable under the law. I wish we could have in the higher law enforcement offices of this land man of courage and patriotism enough. So that they youngsters in America would not feel that the easy way to beat the law with immunity is to join the Communist Party get on always in the party and then come here and knows about government. Because nothing is stopped up honest sometime individual this week. Will the gentleman yield I yield to the gentleman from Ohio Mr. Smith as Mr. Munt reason to believe that the Department of Justice will act

upon these cases quickly. Larry they're going to act upon them. Are there going to be the object of the greatest campaign of prodding that any attorney general of this country ever endured many not to be impeached every refuses to act. Well you know I think he's too good a politician to refuse that very much longer in view of the change in sentiment of America that does not answer the question. I'd like to know if he can be impeached any Cabinet officer may be impeached for failing to do his duty. Yes. That is he has failed to do his duty if he does not prosecute these cases and the only recourse we have if he does not act is to impeach him. That was a great yield. To the gentleman from New York Mr. Mark antonio. Mr. Speaker I see the objective here is very anti-democratic hearing all of this is not the first time that Americans have witnesses hysterical persecution of those with whom

the so-called majority disagree. We have had in the days of the Alien and Sedition Acts a wave of revulsion on the part of the real majority swept this country. And not only wiped off the statute books the Enhanced Edition next but wiped out of power and into complete extinction. The Federalist political party that was responsible for that kind of legislation we witnessed another example of this hysterical persecution right after World War 1 and then they did not use the word communist at that time the world was socialist. This label baiting was a technique employed by reaction then just as it is now to wage warfare against progress and democracy. No self-respecting American now condones the Palme or rage of that period and yet they were condoned then with the same language in a stereo use now right here. Mr. Speaker will the gentleman yield to Mr. Thomas. Do the gentlemen hold the same position when the Committee on Un-American Activities

investigated the German-American. No I did not definitely not. Did the gentleman hold the same position when the Committee on Un-American Activities investigated. Pelley silver surely. I feel like a lot but let me ask the gentleman one more question. The gentleman from New York also hold the same position. When the Committee on Un-American Activities investigated the Ku Klux Klan. Definitely not those organizations were not really investigated. No damage was done to them by the committee especially the Klan. It was never subjected to a thorough investigation time of the gentleman from New York has expired. Will the gentleman now give me some additional time. I do not have any additional time. I gave him one minute. I am the only one speaking in the negative on this proposition. I yield to the gentleman in the hope that he would give me more time and he said he would. But now he gives me one minute. Very well let me say this. It is my considered judgment in the light of contemporary history in the light of how fascism came into power that the

defense of the constitutional rights of the Communists that the defeat of red baiting is the first line of defense of democratic rights to deny that historic fact. The time of a gentleman from New York has again expired. Mr. Speaker I yield to the gentleman from Kentucky Mr. Robeson. Mr. Speaker. Again I have listened with interest to the gentleman from New York Mr. Mark antonio. He talks about the Alien and Sedition laws those 18 0 7. And about what happened in Germany 30 years ago. But never for a moment did he touch the matter at issue. And what is it. You did. This is charged with contempt it willfully and deliberately refusing to testify before a legally constituted committee of the house Applebee of doing something. And even that action he defies the US already of this house.

And in effect of the United States government to speak to the gentleman from Connecticut Mr. Miller does. What you have heard has been taken from the Congressional Record for April 22nd 1947. It not only presents some of the facts in the case under discussion but it also reflects a good deal of the state of the nation at that time. Is this a state conducive to impartial justice. Could a federal worker in Washington D.C. in one thousand forty seven be an impartial juror in the trial of a communist. This was the question facing the Supreme Court in our

case today in a more basic sense of course the question involves a citizen's constitutional right to trial by an impartial jury. There is little doubt that this was one of the very difficult decisions for the Supreme Court. It not only involves questions of law but also individual emotions and attitudes. A nation's political climate and a people's concerns and fears. While justices Clark and Douglas did not participate in the decision of this case five different written opinions by Supreme Court justices were entered into the official record of the case of Dennis against the United States. Let us hear the majority opinion of the court in the case as written by Mr Justice Sherman. Question of the presence of government employees and District of Columbia juries is not a new controversy. It has been before this court on three previous occasions. Only last term in Frazier vs. United States.

The problem of jury service by government employees was reexamined. Government employees were again held to be subject to challenge only for actual bias. No question of actual biases before us. The administrative implementation of executive loyalty ordered 9 8 3 5 was apparently not the subject of anticipatory fear by these jurors. We think the rule in the very recent Frazier case should be uniformly applied. It follows that we are unable to sustain the challenge that petitioner was denied an impartial jury. There is no disclosure in this record that these jurors did not bring to bear this sense of responsibility and the individual integrity by which men judge men. The judgment is affirmed. That was part of the majority opinion in the Dennis case as written by Mr Justice Minton. This decision meant that Eugene Dennis conviction would not be reversed that the

communist party secretary and later did serve his sentence Mr Justice Jackson voted with the majority in this case but he felt a need to write his own opinion. Here is part of the opinion in the Dennis case as written by Mr Justice Robert Jackson. The right to fair trial is the right that stands guardian over all other rights. The way for the court to get out of the hole it fell into in the Frazier case is not to dig another and worse one. We are actually urged to hold that the kind of a jury a defendant may have depends upon his political opinions or affiliations. The sole ground for creating an exemption from the phrase or rule is that the defendant is a communist and the communists are now exceedingly unpopular in Washington. Courts should give to a communist every right an advantage that they give to any defendant. But it is inconceivable that being a Communist can entitle a

defendant to more. What then becomes of equal justice under law. It is true that communists are the current phobia in Washington but always since I can remember some group or other is being investigated and castigated here I think that none of them at such times ever should be forced to defend themselves against the government's accusations before the government's employees. But so long as accused persons who are Republicans Dixiecrats socialists or Democrats must put up with such a jury it will have to do for communists. That was part of Justice Robert Jackson concurring opinion in the Dennis case. Mr Justice is black and Frank Roeder dissented. Here is some of the dissenting opinion as written by Mr Justice Hugo Black. Probably at no period of the nation's history has the loyalty of government employees been subjected to such constant scrutiny and investigation by

so many government agents and secret informers under the circumstances here. It seems farfetched to suggest that government employees however are convinced of innocence would feel completely free to acquit a defendant charged with disobeying a command of the Committee on American Activities. My belief is that no defendant charged with such an offense whatever his political affiliation should be forced to accept a government employee as a juror. Nor should the government want such an unfair advantage. Of course this advantage makes convictions easier. That is precisely what the Sixth Amendment was designed to prevent. That was part of Mr Justice Black's dissenting opinion in the case of Dennis vs. the United States. Mr Justice Frankfurter also dissented in this case.

Here is a portion of the dissenting opinion in the Dennis case by Mr Justice Felix Frankfurter one of the greatest judges all of our Wendell Holmes has assured us that judges are apt to be simple minded men. Only naivete could be on mindful of the force of the considerations such forth by Mr Justice Black and known of all men today. Questions ought not to be put to prospective jurors that offer no fair choice for answer. Men ought not to be asked in effect whether they are brave or wholly indifferent to the enveloping atmosphere. They should not be asked to confess that they are weaklings nor should it be assumed that they are fully conscious of all the pressures that may move them. Nor is it irrelevant to note that we are living in a time when inroads have been made on the secrecy of the jury room to recognize the existence of what is characterized as a phobia against a particular group

is not to discriminate in its favor. If a particular group no matter what its believes is under pressure of popular hostility exclusion of potential jurors peculiarly susceptible to such pressure is not an expression of regard for political opinions but recognition by law of the facts of life. The boast of our criminal procedure is that it protects an accused so far as legal procedure can from a bias operating against such a group to which he belongs. This principle should be enforced whatever the tenants of the group whether they old local folk OWS or the know nothings the Ku Klux Klan or the Communists. It was a wise man who said that there is no greater inequality than the equal treatment of equals. We are concerned with something far more important than sustaining a particular conviction.

No single aspect of our society is more precious and more distinctive than that we seek to administer criminal justice according to morally best studious standards. Mr Justice frankfurters dissent in our case today may be as good a summary as to why we place so much importance upon constitutional rights in general and the right to an impartial jury in particular that we can devise. Although the decision in the Supreme Court in the case of Venice against the United States did not run contrary to popular feeling Denys conviction and sentence were upheld if you remember it should be apparent from the written opinions in this case that our Supreme Court does not panic nor does it take lightly its a vital and irreplaceable role as interpreter of equal justice under law. Perhaps only two points need to be added to the words of our Supreme Court justices in our

case today. One if you have the right to be tried by an impartial jury and you do. You also have the duty to be an impartial juror or should you be called upon to serve. Sometimes this is very difficult. The mass reaction would have it otherwise. And this is our second and concluding point. Hysteria is more frightening and evil than that time when justice acts as the agent of the mob and the law becomes the tool of hysteria. The major preventative against that terrible time are our constitutional guarantees particularly the guarantee of an impartial jury and a fair trial. You have just heard the 11 programme in this series. Your right to run trial. Produced by the University of Minnesota radio station here while I

am under a grant from the educational television and radio set. This program is distributed by the National Association of educational broadcasters. Your commentator today was Professor of Law at home. All right so Ron is written edited and produced by Philip Gale. Join us again next week at this same time for an authentic and authoritative discussion. Of the latest Supreme Court decision and the varying authoritative views on the Fifth Amendment. Today. Hear our case. A case based upon the most controversial part of the Constitution. A case in which the trial. This is the Radio Network.