thumbnail of Your rights are on trial; Right to Fair Bail
Hide -
If this transcript has significant errors that should be corrected, let us know, so we can add it to FIX IT+
The following tape recorded program is distributed by the National Association of educational broadcasters. And anyone under the so-called membership clause who is a member of an organization which teaches and advocate for me that was the actual voice of Congressman Howard Smith author of the Smith Act the basis of the case of the commonness bail. The sixth program in this series of authoritative discussions and authentic dramatizations of Supreme Court cases in which your right to trial.
What is your right to fair. This question will be answered no. As we present the true story and opinion in a Supreme Court case in which your rights are on trial. Your rights are on trial as produced by the University of Minnesota radio station 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 you will hear the opinions of legal authorities as recorded in New York and Washington D.C.. But first to set the stage for the truly authenticated case of the communists. 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. Suppose that tomorrow a police officer taps you on the shoulder shows you a warrant
and says Mr Jones you're under arrest for the hold up of a drug store downtown. What's supposed that you didn't hold up in a drug store could be unhappy. No doubt the probably you would think that some dreadful mistake has been made and you can prove your not guilty person. So you go along with the officer to the police station to be booked and there you're told that you'll have to stay in jail until your trial comes up perhaps six months or so from now when you think that holding you in jail for six months awaiting trial for a crime you didn't commit violated any important constitutional right. I expect you would you'd point out that you're presumed innocent until proven guilty and then it's unfair to put you in jail when you haven't been convicted of anything. And you might have a sinking feeling when you realized how hard it would be to prepare your defense and show you weren't the robber when you're in a jail cell all the time. Wait a minute. Surely I can get out on bail. And so you could. I. Want to go the common law
developed the idea of letting people who are accused of a crime other than murder or any other crime punishable by death go free on bail until their trial so that they can prepare their defense and so that they won't have been imprisoned for a crime of which they may be innocent. So in our imaginary case you demand to be set free on bail. The magistrate agrees and sets bail in the amount of $50000. But if you're a person of average means you don't have $50000 and you're going to have to stay in jail just the same. Is this constitutional the Eighth Amendment to the United States Constitution says that excessive bail shall not be required. But what is excessive bail. Can an amount which would be reasonable for a rich man be excessive for a poor man. Should there be one standard for the man who was driven through a red light and another standard for the man who attempted to burn down an orphanage. Should we set bail higher because we think you're guilty than we would if we're not so sure we have the
right man. We're going to examine some of these questions today but looking at the case of stack versus boil and which the United States Supreme Court for the first time summed up the meaning of the excessive bail provision in the Eighth Amendment. This case involved the right bell and certain alleged communists who had been accused of violating the Smith Act. One of the questions which is important to the amount of bail is the seriousness of the crime with which the defendants are charged. And so we start out by saying what the Smith Act is to determine if violation of it is a serious offense. To explain this to us we have Congressman Howard Smith of West Virginia the author of the Smith Act as interviewed by the producer of the series Philip Gale. Now as recorded in the chambers of the House Rules Committee of which he is chairman in the nation's capitol building in Washington D.C. Congressman Smith I understand that the provision of force and bottoms
was it was it necessary included in that act today gets the low. There must be a an effort to overthrow the government by force and violence only a teaching of the desirability of overthrowing the government by force and violence. Now that's what's referred to that part of it it was referred to generally as a Smith Act. The famous Dennis case of the 11 communists who were tried in New York. It was the first case that arose under that feature of the act. They were convicted and the case went to the Supreme Court of the United States why it why the constitutionality of that act was attacked on the ground it was an interference with the constitutional right of free speech. The supreme court system and the constitutionality of the law and since that time a great many seditious
passions have been prosecuted and convicted under this Act. The average person I think need be feel that this is more extensive granted that it's a very serious problem that the subversive or the person that falls under this Act might be your next door neighbor. Is it used the word many did it. Did you mean that it's that extensive. No I don't think they have been more than 100 convictions. The mere fact that you may think that a person is a little more liberal than you are doesn't make him a communist and doesn't make him a violator of the law. And if we seek to put everybody in jail it doesn't agree with our opinion. Perhaps we wouldn't have very many people on the outside
but it's the fact that out of the general period thousands of people who do believe in the fundamentals of the Communist Party only several hundred have been convicted. Seems to me a very valid argument why the state should have a concurrent jurisdiction to prosecute for similar offenses. Now you can talk about how much you think of this that of the other. But when you begin to teach people and advocate that they rise up bomb force and overthrow the government then you have passed beyond the pale of those kind of expression as a that are protected by a constitutional provision with respect to freedom of speech. As recorded in Washington D.C. You just heard Congressman Howard Smith explaining the
smith nock which he wrote. They accuse persons in our case today were charged and apprehended according to the Smith Act. The arrests occurred after the dentist case to which Congressman Smith referred. The press called the accused here second string communist leaders. Their story starts on the morning of July 27 1051 in the apartment of Max Gordon a New York City at that time the temporary headquarters of the Communist Party a worried man paces the room. His name is William Sneiderman. At this time Sneiderman was the acting head of the Communist Party in the United States. What time is it. 10:45. I'm not sure whether to watch the clock and the calendar. Do you think they'll come today Should I never. And I suppose we're next on THE LIST. And worrying on how they have to throw the book at us. Four of the 11 first string Communists ran out of their bag you know. Look at Iceland. He
left the cult. What does that put us. So if they set the bail too high you can appeal when they have fat chance. You got a fair deal from the Supreme Court when they tried to deport you. Your Sneiderman case was supposed to be a classic. That was nearly 10 years ago and a man named Wendell Willkie was willing to defend me. Things have changed Max things have changed. Shall I shall I answered. I'll get it. Yes. You William Schneiderman. Yes I'm from the Federal Bureau of Investigation. I have a warrant for your arrest. At the same time that William Sneiderman was arrested in New York City the FBI arrested 11 other Communist Party members and leaders in San Francisco and Los Angeles.
The government lawyers demanded that Schneiderman bail be set at $100000. The government attorneys in the West Coast urged the bail for each of the 11 other defendants to be set at $75000. FBI chief J Edgar Hoover commented on these arrests. Of these persons have long been active in the Communist Party in California and other parts of the country. And I've participated in determining day to day policies in their localities. They have devoted a good portion of their adult careers in advancing the cause of communism. The grand jury when issuing the indictment of the 11 arrested on the west coast recommended the bail be set at $75000 for each of these defendants. Judge Mathis of the district courts at the ballot $50000 and was upheld by the United States Court of Appeals. The accused persons appealed to the Supreme Court. They claim the $50000 was excessive bail for them. The lawyers for the government argued that
for other persons who had been convicted under the Smith Act in New York had jumped bail. Bail would have been set me amount of $20000. The government counsel contended the defendants poor bail risks because of the likelihood that they will flee. As members of the Communist Party they're not free agents but are a part of its superior authority. There would hardly seem to be any reason for not throwing the book at the communists. But the nature of the offense in so far as its actual potentialities are concerned still had not been established. In reality how dangerous is the communist menace within the United States. Even of communist to advocate the overthrow of the government by force and violence. Does this constitute a real danger. What are the chances that their advocacy could become action. These are not political questions I'm asking now. They are legal questions. In our case today the determination of bail depended upon the answers to these questions.
If the alleged communists and remember they had not yet been proven to be communists really might violently overthrow the government. Then their bail probably could not be set too high. If however the threat the accused represented was exaggerated or only emotional. The law with its basic dedication to truth and fair play could hardly throw the book at them. The accused persons in this case of course felt that they represented little or no danger to society and the high bail would be grossly unfair and outrageous. Here is part of their point of view as presented by one of the attorneys in the first commonest trial the Dennis case mentioned by Congressman Smith. Harry Sachar the attorney we're going to hear has represented communists and many legal proceedings. He himself has been convicted of contempt of court because of his behavior in some of the trials in which he appeared for communists. But he has a point of view. We're going to hear that point of view. How great is the communist danger within the United States.
In any case where a fair bail is to be determined the law violated and the violation must receive the utmost consideration in this case. The questions that must be asked and answered are. Is being an alleged advocate or of the violent overthrow of the government a $50000 menace to our society. The maximum fine for this crime is only $10000 on a less specific level is communism itself as it exists in the United States a danger sufficient to require so high a bail. This is the question that will be faced now by the attorney as recorded in his law office in New York City. I have before me a book entitled communism conformity and civil liberties by Professor stuffer of Harvard College Harvard University rather who points out that in a survey taken among the types of community leaders
those who are best informed acknowledge that communism and communists do not constitute either a very great or even a great danger in the community. For instance this survey discloses that of Presidents of chambers of commerce not more than twenty eight percent thought that communism constituted any sort of a substantial threat to national security. Among newspaper publishers not more than 24 percent thought that communism was either a very great or a great danger. Among those who are best informed the greatest number do not regard such a danger to exist. You know in that connection it is it is pertinent to consider how Communism is regarded in other countries. Among those who
are our allies. For example I find in the main 1951 issue of the Columbia Law Review statistics to the effect that approximately 11 sours and of the government employees among civil service employees in Great Britain. Are avowed communists. England has no tremendous fears about employing so substantial a number of communists yet we who don't perhaps have a single communist in government employee at the present time seem to be living in constant dread lest one or two might be found somewhere in some department of the government. How do we explain the fact that we who are removed from the Soviet Union by 3000 miles
more than England is we who are so much larger so much richer so much more powerful than the than is the government of England how do we explain that we since 1938 have been carrying on a relentless pursuit of communists while England is able to manage as it has. That was Harry Sachar an attorney who frequently appears for communists as recorded in Loftus New York City. We've heard now some of the case from both sides in this particular court to oust the government and the communist. There is however a third side. Before we present the Supreme Court decision on the specific case we are considering today. We believe you should hear something about the third side on this issue. Your Side. Are all Americans involved in this case. Are you just what is at stake. This is the
primary consideration in the eyes of the American Civil Liberties Union. I was interviewed and recorded in New York City. Here is the staff counsel for the American Civil Liberties Union. Mr. Roland Watt. Mr. Watts first was asked how the ACLU feels when it has to worry about the rights of communists. Attorney Roland Watts replied. We believe that there can be no such thing as rights for the good and. Not rights for the bad. That all of our liberties are inseparable we have to have them for everyone or we have them for no one. We say sometimes rather facetious labor around aid American Civil Liberties Union that we wish that people would start beating on other people and communists these days. The fact of the matter is always that when the right of a communist a legal right is beyond violated the rights of all of us by.
That was the voice of Mr. Roland Watts staff counsel for the American Civil Liberties Union as recorded in New York City. Mr. Watts explained the average individual's involvement in our case today. You've heard the government's view in the defendant's case 12 second string communist leaders awaiting trial under the Smith Act were held on $50000 bail each. They claim such bail to be excessive and they took this case to the Supreme Court of the United States. On November 5th 1951 Fred M. Vinson then Chief Justice of the Supreme Court delivered the court's opinion a petition is moved to reduce bail on the ground that bail as fixed was excessive under the Eighth Amendment of the Constitution which reads excessive bail shall not be required nor excessive fines imposed nor cruel and unusual punishments inflicted. In support of the motion petitioners submitted statements to their financial resources family
relationships health prior criminal records and other information. The only evidence offered by the government was a certified record showing that four persons previously convicted under the Smith Act in the southern district of New York had forfeited bail. No evidence was produced relating those four persons to the petitioners in this case petitioners factual statements stand uncontroverted. It is him from the passage of Judiciary Act of 1789 to the present Federal Rules of Criminal Procedure. Federal law has unequivocally provided that a person arrested for a non capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved the presumption of
innocence secured only after centuries of struggle would lose its meaning. The traditional standards as expressed in the Federal Rules of Criminal Procedure are to be applied in each case to each defendant. Rule 46 C of this procedure States if the defendant is admitted to bail. The amount thereof shall be such as in the judgment of the commissioner or court judge or justice will ensure the presence of the defendant having regard to the nature and circumstances of the offense charged. The weight of the evidence against him. The financial ability of the defendant to give bail and the character of the defendant. In this case petitioners are charged with offenses under the Smith Act and if found guilty petitioners face imprisonment of not more than five years and a fine of not more than $10000. It is not denied that bail for each petitioner has been fixed in a sum much
higher than that usually imposed for offenses with like penalties. And yet there has been no factual showing to justify such action in this case. The government asks the courts to depart from the norm by assuming without the introduction of evidence that each petitioner is a pawn in a conspiracy and will in obedience to a superior flee the jurisdiction. To infer from the fact of indictment alone a need for bail in an unusually high amount is an arbitrary act. Such conduct would inject into our own system of government the very principles of totalitarianism which Congress was seeking to guard against in passing the statute under which petitioners have been indicted. The court concludes that bail has not been fixed by proper methods. In this case the petitioners may move for reduction of bail so that a hearing may be held for the purpose of fixing
reasonable bail for each petitioner. It is so ordered. That was the opinion of the Supreme Court in our case to stack the boil as written by then chief justice Fred Vinson. The decision of the Supreme Court would not mean that the Communists or accused Communists on the West Coast went free. All that the court had ordered was that the trial judge should reconsider their cases and that he should apply the proper standards as set out in the court's opinion. Judge Mathis the trial judge did exactly that. He heard lengthy testimony and wrote an elaborate opinion going into the law on the facts as they applied to the particular defendants. It was his conclusion that the fundamental purpose of bail is to ensure that the accused person would be present at the trial. And the Supreme Court had told him not to set bail of any amount higher than was necessary in order to ensure that these particular persons would show up for trial. After weighing all the facts in
the wall a Judge Mathis concluded that $50000 the amount that he had set the first Tom was still the right amount and that no lesser amount would ensure that the persons would show up for the trial. The accused persons appealed again this time to the Court of Appeals in San Francisco and that court reversed Judge Mathis. They held that $10000 would be reasonable bail for those persons who were accused of being officials of the Communist Party and the $5000 would be reasonable bail for the other defendants. Bail was then set out and this amount. Who was right. Judge Mathis. The Court of Appeals the Supreme Court. Perhaps the proof of the putting is in the eating. The 11 accused persons did show up for trial. Though the amount of bail which had been set for them which much smaller than that which Judge Mathis thought necessary in this sense he was wrong and the other courts were right. At the same time
it would be a mistake I think to dismiss Judge Mathis view. Does his opinion reflect a conscientious effort to try to apply the standard of reasonable bail in the light of the facts of the case he evaluated them differently than other judges did. But his good faith seems to me quite beyond question. And then too we have to take into account another factor and that is that even if one or more of the defendants had forfeited their bail had not showed up and let their $5000 or their ten thousand dollars go to the government. This would not necessarily show that the court of appeals judges were wrong the Judge Mathis was right because as Justice Jackson said in his concurring opinion and stacked the boil we take a calculated risk whenever we let an accused person go out on bail. We recognize that some people are going to forfeit their bail. We can't set the amount in every case so hot as to make sure that no one will ever jump. But what does all this mean for
us. We're not communists we're not likely to be indicted for violation of the Smith Act. But the same standard which governs the Smith Act case governs the imaginary case with which we started out in which you were accused of having held up the downtown drug store. In fact that is perhaps the most important lesson to be learn from this case that the Supreme Court applying justice even handedly did say that the same rules which govern run of the mill offenses should be applied to communists no matter how great the temptation was to say that we don't like communists and therefore we don't want to give them the special procedural protections that we build into the Constitution. The rules as laid down by stack b boil aren't going to provide an easy simple answer in every case is the difference of opinion between Judge Mathis and the Court of Appeals shows. But by emphasizing the importance of letting people go out until they've been convicted by the emphasis the court puts on having a
moderate amount of bail the least possible which will ensure their presence at the trial. The court set the lower court in the direction of a reasonable notice applying the standard which will be your protection and which will ensure that you won't be held on $50000 bail in the robbery case we talked about here as in all the cases in this series. It was your rights that were on trial right. You have just heard the case of the communist. 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
Your rights are on trial
Right to Fair Bail
Producing Organization
University of Minnesota
KUOM (Radio station : Minneapolis, Minn.)
Contributing Organization
University of Maryland (College Park, Maryland)
If you have more information about this item than what is given here, or if you have concerns about this record, we want to know! Contact us, indicating the AAPB ID (cpb-aacip/500-st7dwk3j).
Episode Description
This program, "The Case of the Communists' Bail," focuses on the concept of fair bail and includes Congressman Howard Smith, author of the Smith Act.
Other Description
Discussions and dramatizations of recent high court decisions. Features Professors of Law Monrad Paulsen of Columbia University and Charles Alan Wright of University of Texas.
Broadcast Date
Law Enforcement and Crime
Media type
Embed Code
Copy and paste this HTML to include AAPB content on your blog or webpage.
: Smith, Howard Worth, 1883-1976
Commentator: Wright, Charles Alan
Commentator: Paulsen, Monrad G.
Producing Organization: University of Minnesota
Producing Organization: KUOM (Radio station : Minneapolis, Minn.)
AAPB Contributor Holdings
University of Maryland
Identifier: 57-18-6 (National Association of Educational Broadcasters)
Format: 1/4 inch audio tape
Duration: 00:29:05
If you have a copy of this asset and would like us to add it to our catalog, please contact us.
Chicago: “Your rights are on trial; Right to Fair Bail,” 1957-05-12, University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC, accessed December 6, 2021,
MLA: “Your rights are on trial; Right to Fair Bail.” 1957-05-12. University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Web. December 6, 2021. <>.
APA: Your rights are on trial; Right to Fair Bail. Boston, MA: University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Retrieved from