The Minneapolis ‘Sedition’ Trial
Transcription/XHTML Markup: Ted Crawford and David Walters
Copyleft: Felix Morrow Internet Archive (www.marx.org) 2004. Permission is granted to copy and/or distribute this document under the terms of the GNU Free Documentation License
I. The Verdict
An analysis of the jury’s verdict will show how much the Socialist Workers Party has bettered the position of labor’s rights in this battle in contrast to where we stood when the indictment drawn up by the Department of Justice was handed down by a federal grand jury on July 15, 1941, and we went on trial on October 27, 1941.
The jury found all 23 defendants not guilty on Count 1 of the indictment. (Five of the 28 defendants who originally went on trial were acquitted on both counts by directed verdict by the judge for lack of evidence, at the conclusion of the prosecution’s presentation of the case.) Three important consequences resulted from rejecting Count I.
In acquitting us on Count 1, the jury, in effect, rejected the government’s attempt to transform the 1861 statute into a ban against revolutionary doctrines. The importance of this as a precedent is that the constitutionality of the 1861 statute as a whole is firmly established by Supreme Court decisions; a conviction under it would be much more likely to remain untouched by the higher courts than one under the hitherto untested Smith Act of 1940. In his final argument, Albert Goldman carefully explained to the jury the important distinction between conspiring to overthrow the government (Count 1) and conspiring to advocate overthrow of the government (Count 2), a distinction which the government, in extending the meaning of the 1861 statute, had refused to recognize. On this important question the jury aligned itself with the defense.
Now Clearly a Civil Liberties Issue
The Recommendation of Leniency
An examination of Count 2 renders the verdict still less defensible. Of what were the defendants convicted? Count 2 charged violation of the Smith Act of 1940, popularly known, during the fight against enactment of it, as the Omnibus Gag Bill; the justice of that nickname becomes apparent by describing Count 2. It lists five numbered acts which the defendants allegedly conspired to commit: 1. “Advise, counsel, urge” and “distribute written and printed matter” to cause insubordination in the armed forces. 2. “Advocate, abet, advise and teach the duty, necessity, desirability and propriety of overthrowing the government by force and violence.” 3. “Print, publish, edit, issue, circulate, sell, distribute and publicly display written and printed matter advocating” such overthrow. 4. “Organize societies, groups and assemblies of persons to teach” the same. 5. Become members of such groups.
The last three of these charges played no role. Count 2 was considered, by both prosecution and defense, as if it consisted of the first two charges—causing insubordination and advocating violence.
The jury could vote guilty or not guilty on Count 2 as a whole and could not indicate whether it held the defendants guilty on one, or the other, or both charges in the count. The recommendation of leniency tends to indicate that the jury did not consider the defendants guilty of both.
One of these two charges was so unsubstantiated that it should never have been submitted to the jury at all—that on insubordination in the armed forces. Albert Goldman pointed this out to Judge Joyce in argument for a new trial. For the only “evidence” on this point was some oral testimony by two government witnesses to the effect that one or two defendants had told them that soldiers should be induced to “kick” about food and living conditions. Judge Joyce’s answer was that, since “some” evidence had been offered in this point, he had been bound to submit the question to the jury. Federal judges may dismiss all or any part of any count in an indictment when in the judge’s opinion no substantial evidence has been introduced warranting the submission of the point in question to the jury.
Certainly it is hard to believe that a jury recommended leniency if it held the defendants guilty of such a serious charge as conspiring to cause insubordination in the army.
What Happened in the Jury Room
All in all, the jury’s verdict is scarcely one which the government can point to as a vindication of the government charges on which the trial took place. On the contrary, the defendants are in a strong moral position on the basis of which, even in wartime, great sections of the labor and liberal movement can be united in the appeal against the convictions
II. The Jury
Here were jurors chosen by a procedure which made certain that no one sympathetic to labor would be on the venire. They were called upon to pass on a case which, they well understood, had been initiated by the highest circles of the United States Government; an Assistant Attorney-General, sent from Washington, was present in the courtroom to demand of them a guilty verdict. The defendants were revolutionaries committed to the overthrow of the existing order, that is to say, members of a small unpopular movement anathematized by respectable society. Over the courtroom was the shadow of the impending war—the defendants were sentenced the day Congress declared war against Japan. Under those conditions, it would have taken men and women of extraordinary calibre to stand up in the jury room on behalf of the defendants to the point of a hung jury. In truth it is more surprising that those who believed us innocent were not finally beaten down to submit to a blanket verdict of guilty against all defendants, on both counts, and with no recommendation of leniency.
The really significant fact is not that the three jurors compromised, but that the other nine were ready to agree to a compromise favorable to the defendants. A significant fact, for when the trial began these jurors were unquestionably steeped in hostility and prejudice against the revolutionary Marxists they were called upon to judge. That the jurors ended ready to show leniency toward the defendants is a tribute to the character of the defense conducted by Albert Goldman.
Consider who these jurors were and how they were chosen. The venire for a federal jury in this district is constituted as follows: The court clerk and a jury commissioner write to their friends and acquaintances in all the counties of this predominantly rural federal district, asking them to send in the names of persons likely to make good jurors. The court clerk and jury commissioner naturally write to “solid” citizens who, in turn, name the same type. Those named receive routine questionnaires which they fill in and return to the court clerk, who files them. When a court term is about to open and a venire is needed, the clerk gets out of the files the required number distributed almost equally among the counties, which means an overwhelmingly rural venire. In this case the judge called for a venire drawn from 33 counties, predominantly rural.
Nor was Albert Goldman permitted to question prospective jurors, as defense counsel are traditionally allowed to do. The procedure permitted questioning of prospective jurors only by the judge. Defense counsel could submit questions to the judge, who put some of them, rejected the rest. Thus defense counsel could not, by skillful, probing questioning, ferret out prejudiced jurors.
The defense was limited to ten peremptory challenges. After using up the first few, Albert Goldman could not but ask himself: “If I use up the rest, isn’t it almost certain, from such a venire, that I shall get worse than I already have in the jury box?”
And so this jury was chosen: a grain elevator owner; a small town newspaper publisher; a bank executive; a garage owner; a farmer; a farm laborer; a general store owner a general store clerk; a plumbing contractor; a hardware clerk; the wife of a courthouse janitor; a lumber company sales manager. Most of them from rural counties, and not a single person who is or ever has been a member of a trade union.
Visualize that jury and you will begin to understand Albert Goldman’s achievement in conducting the defense!
III. The Method of the Defense
This approach would include systematic objections by defense counsel to acceptance into evidence of any and all government exhibits from the literature of the Socialist Workers Party—objections designed to limit as far as possible the number of government exhibits, so that there would be as few as possible to explain away. Similar objections would be made to testimony of government witnesses. Each exhibit and item of oral testimony, at least the most damaging, would then be separately “interpreted” to persuade the jury that it isn’t as bad as it is painted. Government witnesses would be cross-examined on the same basis. Defendants would be called as witnesses only primarily to refute specific charges made by government witnesses.
The liberal method of trying the case would eschew any systematic exposition in the case, or in final argument, of the socialist theories of the defendants. Proposals by defendants to defend their doctrines would be frowned upon by the liberal attorneys as having no other purpose than to use the court for propaganda purposes. It might make good propaganda for socialism but would prejudice the jury against the defendants.
This, I think, is a fair presentation of the method that the liberals would use in the Minneapolis and similar cases.
Fallacies of the Liberal Method
To have defense counsel deride the potency of our doctrines, urge the jury to laugh at us as foolish doctrinaires and to let us go because we could never achieve our goal—such a defense would be little better than abandoning our principles for the sake of a possible acquittal.
Instead we employed a principled method which may justly be said to have been used for the first time in this country—certainly for the first time systematically and consciously.
We set out to get those jurors to cease abhorring socialism and to recognize and respect the sincerity, sanity and seriousness of the defendants and their ideas. It might even be said that, in a sense, we set out to make socialist sympathizers or half-sympathizers out of those jurors. The defense had as its main object to make those jurors understand what we are really like and what we really stand for. That could be done only by explaining to them, in the simplest and most persuasive terms, our beliefs and our hopes for the socialist future of humanity.
The Kind of Attorney We Needed
The trial began with opening statements by both sides. After US District Attorney Anderson made his statement, Goldman incisively called the attention of the jury to the heart of the case:
Our Attitude to Prosecution Evidence
Goldman followed a similar procedure toward government witnesses. He made no objections to their descriptions of the structure and history of the party, their recital of events at party meetings, their account of party activities in the trade unions, etc. As the reader of Goldman’s final argument will note, he made effective use of this hostile testimony in clinching important points, notably on the question of the party’s aims in the unions. Only where the prosecutors led their witnesses into fabulous tales of private conversations allegedly had between witnesses and defendants in barrooms, automobiles and house-parties, or government testimony was completely irrelevant to the issues, did Goldman object.
Likewise his extremely effective cross-examination carefully avoided any appearance of hammering witnesses merely for the sake of tripping them up. Much of their testimony he did not cross-examine at all, dealing only with crucial points such as their allegations about the Union Defense Guard and about statements by defendants advocating violence against the government. Goldman’s activities during the three weeks that the prosecution was presenting its side of the case clearly indicated his willingness to have everything brought in which would give the jury a complete picture of the doctrines and activities of the Socialist Workers Party.
The defense took only four day’s to presents its case. The party’s National Secretary, James P. Cannon, was on the stand for two days. Under Goldman’s questioning he gave the jury an effectively simple description of our ideas; under cross-examination he defended those ideas against prosecution attempts to pervert their meaning.
This was supplemented by the testimony of Farrell Dobbs and Vincent Dunne on the policy and activities of the party in the trade unions. Short but convincing testimony by six Union Defense Guard members on the nature of the organization, and testimony by Grace Carlson rebutting government testimony about statements allegedly made by her were other important items in the defense presentation.
The effect of the whole was not so much to deny specific government allegations as to describe to the jury the ideas of the Socialist Workers Party.
Whatever may have been the effect of the defense witnesses on the jury, in the end everything depended upon Albert Goldman’s final argument. For after the defense witnesses came the prosecution’s final argument, a day-long speech by US District Attorney Victor Anderson.
IV. The Final Arguments
On the other hand Judge Joyce would not permit the defense witnesses to tell the jury the whole story behind the trial—the struggle between AFL Teamsters President Daniel J. Tobin and the Trotskyist leadership of the Motor Transport Workers Union, Local 544-CIO, and the series of governmental actions siding with Tobin, culminating in the indictment of the leadership of the Socialist Workers Party and Local 544-CIO. Whenever defense witnesses approached this question, the prosecutors jumped up to object and were sustained by the judge.
Such were the onerous conditions under which Albert Goldman delivered his final argument, speaking for two days, for a total of ten hours.
His speech, as the reader can see for himself, is austerely simple in its construction. There are no tricks in it, nor flights of rhetoric. The secret of its great power is that it is an unadorned but clear and persuasive explanation of what socialism is. The task Albert Goldman set for himself was to try to make those jurors understand who we defendants are, what we believe, why we believe it, and why we have a moral and legal right to our beliefs. He set out to move those jurors, not inches, but worlds, from their capitalist-dominated world into seeing distance of the socialist world of the future.
The obstacles in the way were well-nigh insuperable. But hour after hour, with an eloquence which lent restrained passion to his words, Goldman labored upon that jury, And, finally, his labors were not in vain. He won from them a partial victory, partial but rich with fruitful consequences for the preservation and building of the revolutionary movement.
Not the least of the fruitful consequences of this trial is the text of Goldman’s speech. It provides something which the American revolutionary movement has long lacked—an elementary exposition of the socialist outlook. Now we have it, not in a dry textbook, but in the dramatic form of a defense of revolutionists against the government’s attempt to imprison them for their ideas. Let us see to it that the new generation of youth, in whose hands is the power to put an end to capitalist slaughter, is given the opportunity to read Albert Goldman’s great speech.