MICHAL R. BELKNAP
The Fight for the
Right to Counsel
Too often the American bar has been, as
Adolf Berle once
lamented, "an intellectual jobber
and contractor, rather than a moral
force"; but there have been times
when the bar has provided the
country with highly principled and badly
needed leadership.1 In the
early 1950s, an era troubled by the
anti-Communist excess known as
McCarthyism, many civil liberties and
constitutional guarantees were
in danger, among them the right to
counsel. In order to preserve that
right, a number of local bar
associations offered to provide attorneys
to Communists who could not otherwise
have obtained them. When
attacked for doing so, these lawyers not
only persisted in their de-
fense of a principle in which they
believed, but led by the Cleveland
Bar Association, fought back against
their most outspoken critic. The
battle waged by these attorneys for the
right to counsel forced the
public to confront an issue which it had
until then managed to evade:
whether a successful attack on domestic
Communism was more im-
portant than preserving the traditional
guarantees of the American
constitutional system. Many people,
deciding it was not, rallied to the
standard which the lawyers had raised,
abandoning the system of
values and priorities that had supported
the second American Red
Scare.
During this era of anti-radical feeling,
members of the Communist
Party of the United States (CPUSA) who
needed lawyers often could
not retain them. The reason was public
hostility arising from a widely
held belief that these dissidents were
the traitorous agents of a hostile
power. The late 1940s and early 1950s
were a period of intense Cold
War between the United States and the
Soviet Union, and most
Americans believed that in this conflict
the loyalties of domestic
Communists lay with the Russian enemy,
rather than with their
Dr. Belknap is Assistant Professor of
History at The University of Texas at Austin.
1. Quoted in James Willard Hurst, The
Growth of American Law: The Lawmakers
(Boston, 1950), 355.
Right to Counsel 29 |
|
own country.2 President Harry Truman did not consider the CPUSA a threat to national security,3 but political pressures to move against it became increasingly intense. In 1948 his Attorney General, Tom C. Clark, sought indictments against a dozen top leaders of that organi- zation, charging them with violation of the Smith Act, a 1940 sedition statute which made it a crime to teach and advocate the violent over- throw of the government.4 The Republican Eisenhower administration, which assumed power in 1953, found it politically expedient to carry on the assault against domestic Communism which its Demo- cratic predecessor had begun, and pushed the total number of Party
2. George H. Gallup, The Gallup Poll: Public Opinion 1935-1971 (New York, 1972), I, 593-594, 639, 736, 752. 3. Harry S. Truman, Public Papers of the Presidents of the United States: Harry S. Truman (Washington, 1961-1966), IV, 254-255. 4. U.S., Congress, House, Committee on Un-American Activities, Hearings ... on Proposed Legislation to Curb and Control the Communist Party, 80th Congress, 1st session (Washington, 1948), 21; handwritten notes on Communist case prepared by John F. X. McGohey, U.S. Attorney for the Southern District of New York, April 18-July 2, 1948, and unsigned memorandum dated June 25, 1948, John F. X. McGohey Papers, Harry S. Truman Library. |
30 OHIO HISTORY
members prosecuted to 143.5 Lawyers who
might have defended
these radicals had to contend with the
same hostility toward the
CPUSA which had driven government
officials to attack that organi-
zation. Most found it made their
participation in Smith Act cases at
best inexpedient and at worst
impossible.
The most likely source of counsel for a
Communist in trouble was
that segment of the legal profession
which identified with the political
left. During the McCarthy Era, though,
radical lawyers were under
constant attack. In 1949 Attorney
General Clark called upon local bar
associations to take action against such
attorneys. In his opinion,
lawyer members of the CPUSA were bent on
degrading the American
system of justice. Those "who are
not probably card-carrying Com-
munists, but who act like Communists. .
. ," were dangerous too.
Both groups should be barred from
practice, Clark believed.6 Many
lawyers outside the government agreed
with the Attorney General. In
February 1951 the House of Delegates of
the American Bar Associa-
tion unanimously recommended that local
lawyers' groups expel all
Communists and advocates of
Marxism-Leninism.7
Among the victims of the attack on
radical lawyers were the two
Communist attorneys prosecuted under the
Smith Act, George Blake
Charney and Maurice Braverman. Both
suffered permanent disbar-
ment.8 Technically the reason
for their expulsion from legal practice
was that they had been convicted of a
felony; actually it was their
radicalism. Seeking to justify
Braverman's disbarment, Judge Roszel
C. Thomasen of the Maryland Court of
Appeals argued that, "not
only was the crime of which he was
convicted a felony ... it involved
violation" of his oath to
"support and defend the constitution of the
United States."9 Apparently
it was worse for an attorney to advocate
radical changes in the American system
of government than to com-
mit conventional criminal acts.
Unlike most of those tried on Smith Act
charges, Braverman was
not a party official. So far as his
comrades could determine, the gov-
5. Michal R. Belknap, "The Smith
Act and the Communist Party: A Study in Politi-
cal Justice" (unpublished Ph.D.
dissertation, University of Wisconsin, 1973), 337-339;
U.S., Department of Justice, "List
of Smith Act Cases Involving Communist Party
Leaders" (unpublished).
6. Tom C. Clark, "Why the Reds
Won't Scare Us Any More," Look, August 30,
1949, pp. 52-53.
7. New York Times, February 27,
1951.
8. Braverman v. Bar Association of
Baltimore City, 209 Md. 328, 121 A. 2d
423
(1956), cert. denied, 352 U.S.
830 (1956); In re Braverman, 148 F. Supp. 56 (D. Md.
1957); New York Times, January
14, 1955.
9. In re Braverman, at 57.
Right to Counsel 31
ernment's only reason for prosecuting
him was that he had defended
fellow Communists in court. A number of
other radical attorneys who
represented members of the CPUSA also
suffered. The five lawyers
who appeared as defense counsel in the
first Smith Act trial, a tumul-
tuous 1949 proceeding in New York, all
received contempt sentences
from the presiding judge, Harold Medina.
Both the Second Circuit
Court of Appeals and the United States
Supreme Court upheld the
punishment which he imposed upon them,
although Justice Felix
Frankfurter, who dissented from the
decision of the high tribunal,
considered Medina as responsible as the
lawyers for the chaos which
had consumed his courtroom. All of these
attorneys were members of
the National Lawyers Guild, an
organization widely regarded at the
time as a Communist front, and three of
them-Harry Sacher, Ab-
raham Isserman, and Richard
Gladstein-seem to have been members
of the CPUSA. Although it was their
conduct, rather than their poli-
tics, which earned them jail sentences,
the fate they suffered could
not help but have a chilling effect on
other advocates contemplating
the defense of Communists. Justice
Robert Jackson, spokesman for
the Supreme Court, assured attorneys
that he and his colleagues
would always protect them in the
vigorous and effective performance
of their duties, but these contempt
sentences were not the sort of
thing likely to encourage the
"competent and fearless" representation
which he himself considered essential in
Smith Act cases.10
Nor was the disciplinary action taken
against several defense attor-
neys by courts and bar associations
reassuring to defenders of un-
popular clients. Isserman lost the right
to practice in both state and
federal courts, and Sacher too would
have suffered disbarment, had
not the Supreme Court rescued him.
Ostensibly the sentences which
the two radical attorneys had received
from Medina necessitated this
disciplinary action, but Jackson,
dissenting in the Isserman case, said
he could recall no other instance when a
lawyer had been disbarred
by either a state or a federal court
merely because of a contempt
conviction. The Justice hinted that
Isserman was actually losing the
10. George Myers, former district
organizer, Maryland-District of Columbia District
of the Communist Party, personal
interview with author at CPUSA National Headquar-
ters, New York City, August 8, 1973; United
States v. Sacher, 182 F. 2d 416 (2d Cir.
1950), affd, 345 U.S. 1 (1952);
Vern Countryman, "The Bigots and the Professionals,"
Nation, June 28, 1952, p. 642; U.S., Congress, House, Committee
on Un-
American Activities, Communist Legal
Subversion: The Role of the Communist
Lawyer, House
Report 417, 86th Congress, 1st session (Washington, 1959), 41, 46, 61;
Memorandum for Conference by Mr. Justice
Jackson, October 9, 1951, Felix Frankfur-
ter Papers, Library of Congress.
32 OHIO HISTORY
right to practice because of his
Communist leanings and affiliations.11
Another radical attorney who
participated in the New York trial,
Richard Gladstein, came under fire in
Hawaii when he went there
with the intent of serving as defense
counsel in a Smith Act case. A
Honolulu judge attempted to suspend him,
and only the intervention
of a Court of Appeals on the mainland
saved the San Francisco
lawyer from that fate. The local bar
association did succeed in getting
the territorial supreme court to impose
a one year suspension on his
Hawaiian colleague, Harriett
Bouslog-Sawyer, although she too es-
caped punishment after a lengthy appeal.
The action against Gladstein
seems to have been based on his conduct
in New York. The reasons
which the bar association gave for
disciplining Mrs. Sawyer were a
speech she had given during the trial,
which was highly critical of the
government's conduct of Smith Act cases,
and her efforts, after the
verdicts were in, to secure a reversal
of the conviction against her
client by obtaining depositions from a
distraught juror and his rela-
tives. But the efforts to punish these
lawyers appear to have been
inspired less by their conduct than by
their radical leanings and the
identity of those they were defending.12
Judge Walter Pope noted in
the Bouslog-Sawyer case that the
defendant had a long record of de-
fending unpopular labor unions and had
dared to appear in a Smith
Act trial. "I cannot overlook as a
judge what I know as an ordinary
citizen in common with everyone
else," he said, "that many persons
think that one who would handle such
cases . . . ought to be disbarred
just on general principles."13
Left-leaning attorneys who took on Smith
Act cases bore the dou-
ble burden of their own radicalism and
the unsavory reputations of
their clients. In the McCarthy Era, that
was a crushing load to carry.
There were some "progressive"
members of the bar willing to accept
the challenge, but not nearly enough to
meet the legal needs of the
CPUSA.
Help might have come from the American
Civil Liberties Union
(ACLU), but that long time champion of
the persecuted proved unwill-
ing to risk its reputation by becoming
deeply involved with Com-
munists. The ACLU approached the Smith
Act cases as warily as a
11. In re Isserman, 9 N.J. 269,
87 A. 2d 903 (1952), r'hrng denied, 9 N.J. 316, 88 A.
2d 199 (1952); In re Isserman, 345
U.S. 286 (1953); In re Sacher, 206 F. 2d 358 (2d Cir.
1953), r'hrng denied, 206 F. 2d
358; Sacher v. Association of the Bar of the City of New
York, 347 U.S. 388 (1954).
12. Gladstein v. McLaughlin, 230
F. 2d 762 (9th Cir. 1955); In re Bouslog-Sawyer, 41
Hawaii 403 (1956); In re Sawyer, 260
F. 2d 189 (9th Cir. 1958), 360 U.S. 622 (1959), 274
F. 2d 356 (9th Cir. 1959). Mrs. Sawyer's
professional name was Bouslog.
13. In re Sawyer, 260 F. 2d 189
(9th Cir. 1958), at 214.
Right to Counsel 33
swimmer entering an icy stream. Although
condemning the indict-
ment of the Party's twelve top leaders
in 1948, it declined to take any
part in their trial. After the
Communists were convicted, the ACLU,
desirous of seeing the Smith Act proved
unconstitutional, filed briefs
in support of the appeal which they
carried to the Supreme Court, but
it took care to disassociate itself as
much as possible from these de-
spised radicals and their attorneys. The
high tribunal's 1951 ruling,
upholding both the convictions and the
law, jolted the Union into
reassessing its position. The ACLU
decided that in the future, besides
seeking a reversal of the Supreme Court
decision and repeal of the
statute, it would intervene in Smith Act
cases at the trial level. Civil
liberties unions across the country
offered various kinds of assistance
to Communist defendants, some
demonstrating a willingness to go
even further than the national
organization. But the ACLU never
completely overcame its caution. Despite
the objections of a number
of local affiliates, the organization
continued to make a point of pub-
licly expressing opposition to
Communism, and, while participating in
a great deal of Smith Act litigation,
generally limited its role to filing
friend of the court briefs. Two civil
liberties union lawyers, A. L.
Wirin of Los Angeles and Ralph Budd of
Cleveland, did serve as trial
counsel for Communists, but both were
associated with local civil
liberties unions, rather than with the
national office, and both ap-
peared as private attorneys, rather than
as representatives of their
organizations. 14
14. ACLU [Feature Press Service] Weekly
Bulletins #1344 (July 26, 1948), p. 1,
#1369 (January 17, 1949), p. 1,
#1496(July 12, 1951), p. 1, #1525 (January 21, 1952), p. 3,
#1529(February 18, 1952),p.1,
#1556(August 25, 1952), p. 2, #1675(December6, 1954),
p.2, # 1687 (February 28, 1955), p. 3,
#1773 (October 22, 1956), p. 2, and #1989 (March 23,
1959), p. 1; ACLU, America's Need: A
New Birth of Freedom, 34th Annual Report-
American Civil Liberties Union July
1, 1953-June 30, 1954 (New York,
1954), 30; ACLU,
Clearing the Main Channels, 35th
Annual Report of the American Civil Liberties Union
July 1, 1954 to June 30, 1955 (New York, 1955), 27; ACLU, Liberty Is Always
Unfinished
Business: 36th Annual Report of the
American Civil Liberties Union July 1, 1955 to June
30, 1956 (New York, 1956), 27; Mary Sperling McAuliffe,
"The Red Scare and the Crisis in
American Liberalism, 1947-1954"
(unpublished Ph.D. dissertation, University of Mary-
land, 1972), 178; McAuliffe, "The
American Civil Liberties Union During the McCarthy
Years," in Robert Griffith and
Athan Theoharis, eds., The Specter (New York, 1974),
159-160, 169; Motion of the American
Civil Liberties Union for Leave to File Brief in
Amicus Curiae, at 2-3, Dennis v.
United States, 341 U.S. 494 (1951); United States v.
Schneiderman, No. 22131 Crim. (S.D. Cal. 1952), Transcript of
Proceedings, pp. 12572-
574, 13915-916, opinion report in 106 F.
Supp. 906 (S.D. Cal. 1952); Cleveland Bar
Association Journal (September, 1955), The Right to Counsel. (The Right to
Counsel,
hereafter cited as RTC, is a collection
of correspondence, reports, and clippings assem-
bled by the Cleveland Bar Association
and submitted to the American Bar Association in
support of an application for an award
as the local bar association of the year; it is presently
in the Cleveland home of Eugene
Freedheim.)
34 OHIO HISTORY
With the level of public hostility
toward Communists sufficient to
intimidate even the ACLU, it is not
surprising that most moderate and
conservative lawyers wanted nothing to
do with Smith Act defendants.
About two hundred attorneys contacted by
one group of indicted party
leaders declined to represent them, most
because of the probable
economic and social consequences of
involvement in such a case.15
Laymen often assume that lawyers share
the views of their clients, and
few men practicing law in Cold War
America wished to jeopardize their
careers through identification with
Communism. Cowed by public opin-
ion, the bulk of the bar avoided involvement
with the CPUSA, and,
since the radical wing of the
profession, fighting for its own life, could
not provide sufficient help, many
prosecuted party members found
themselves without adequate legal
representation. In September 1954
the head of the Fund for the Republic,
Robert Hutching, reported to the
directors of his organization that it
was becoming "more and more
difficult for people of unpopular views
to obtain counsel."16
This situation disturbed many lawyers,
even within that vast seg-
ment of the bar which felt little
sympathy for the CPUSA. To these
attorneys it seemed that anti-Communist
feeling was eroding the right
to counsel embodied in the Sixth
Amendment. They were unwilling to
see the country's fight against
radicalism carried to the point of de-
stroying what they regarded as a
fundamental privilege of American
citizenship.
The available evidence suggests that, as
a group, attorneys were far
less worried about the menace of
Communism and far more con-
cerned about the preservation of
traditional civil liberties than was the
general public. A 1954 survey disclosed
that among local community
leaders bar association presidents
exhibited a higher degree of will-
ingness to give members of the CPUSA the
right to speak than did
any other group except newspaper
publishers. They displayed more
concern about civil liberties and were
more tolerant of nonconfor-
mists than almost any other group of
prominent persons in the towns
and cities studied. The attitudes of
these attorneys were probably in
part a product of the long years of
schooling required to practice law.
A 1953 survey indicated that, while a
majority of the population fa-
vored restricting the freedom of
Communists, educated persons were
more willing than others to let them
exercise the civil liberties which
most Americans supported as abstract
propositions, divorced from
15. Daily Worker, January 31, 1952.
16. Quoted in Thomas C. Reeves, Freedom
and the Foundation: The Fund for the
Republic in the Era of McCarthyism (New York, 1969), 84.
Right to Counsel
35
the immediate concerns of the Cold War.
But many of the leaders
studied in 1954 were likely to have had
extensive schooling. Probably
the fact that bar association presidents
expressed greater sympathy
for the idea of guaranteeing civil
liberties to Communists than did
most other prominent individuals in
their communities was due not so
much to the length of their education,
as to the peculiar nature of
legal training and the unique
responsibilities of their profession.17
Among the duties of the lawyer was the
defense of accused crimi-
nals. The right to counsel, viewed from
a slightly different perspec-
tive, was the right to hire an attorney,
and anything which endangered
the Sixth Amendment guarantee also
threatened the economic foun-
dation of the legal profession.
Consequently lawyers defended this civil
liberty more vigorously than any other.
Whatever their personal
views about Communism, attorneys dared
not let the attack upon it
destroy the market for their services.
They had to fight to defend the
right to counsel.
In September 1952, with public hostility
toward Communists at its
zenith, the New York and Maryland Bar
Associations took steps to
make the Sixth Amendment guarantee
something more than an empty
promise for those indicted under the
Smith Act. The Committee on
Civil Rights of the Empire State group
informed the public that the
legal profession had always felt
obligated to see to it "that even the
most unpopular defendants and those
charged with the most repellent
crimes can obtain counsel who will do
what is possible and proper in
their defense." New York lawyers
pledged to support against criti-
cism and attack any attorney who offered
his services to a Com-
munist, and also promised to undertake
the task of educating both the
profession and the public concerning the
rights and duties of
those representing clients associated
with distasteful causes. The
Maryland Bar Association went even
further, resolving that, at the
request of any individual charged with
being a Communist or subver-
sive person, it would appoint one or
more lawyers to represent him.
17. The portions of the 1954 survey and
the conclusions drawn from it relied on here
are reported in Samuel Stouffer, Communism,
Conformity and Civil Liberties (Garden
City, 1955), 42, 52, 233. The community
leaders consisted of one representative from
each of fourteen categories (mayor,
president of the chamber of commerce, chairman
of the Community Chest, president of a
large labor union local, chairmen of the Repub-
lican and Democratic central committees,
commander of the largest American Legion
post, regent of the Daughters of the
American Revolution, president of the local wo-
man's club, chairman of the school
board, chairman of the largest PTA, president of
the bar association, and publisher of
the locally-owned newspaper with the largest cir-
culation) in cities of 10,000-15,000
population. For the relevant results of the 1953 study
see Herbert H. Hyman and Paul B.
Sheatsley, "Trends in Public Opinion on Civil
Liberties," Journal of Social
Issues, IX, No. 3 (1953), 10-14.
36 OHIO HISTORY
This procedure, the committee drafting
the resolution hoped, would
shield individual attorneys from public
censure.l8
A year after the Maryland and New York
bars expressed them-
selves on the subject, a group of
Philadelphia attorneys, by coming to
the aid of Smith Act defendants, put
into practice the principle they
had enunciated. Despite diligent effort,
the wives of Communists in-
dicted in Philadelphia had little luck
in finding counsel for their hus-
bands. Many prominent lawyers refused to
take the case, and one
firm, after accepting a retainer,
returned it within twenty-four hours.
The women appealed to Bernard G. Segal,
chancellor of the Philadel-
phia Bar Association, but even he could
find no attorney willing to
risk defending Communists. On August 5
one of the wives reported to
Judge Alan K. Grim that seven of the
eight defendants had failed to
obtain lawyers, leaving him no choice
but to postpone arraignment. In
the meantime, the bar association had
passed a resolution expressing
the opinion that the right to counsel
was dependent upon public ac-
ceptance of a correlative right of
attorneys to defend any clients they
chose, without having the reputations of
those they represented im-
puted to them. The organization pledged
to support any advocate who
used his skills on behalf of an
unpopular individual, so long as the
attorney conducted himself with dignity.
Thomas D. McBride, chair-
man of the bar's Civil Rights Committee,
finally agreed to take the
Smith Act case and assembled a team of
topflight young lawyers,
which included a former city solicitor
and a one-time investigator for
the state attorney general's office.
These men worked without com-
pensation and provided the Communists
with an able defense.19
The judge praised them as the
"unsung heroes" of the trial, and the
press too offered congratulations.
Hostility to Communism was so
intense in Philadelphia that it had
taken six weeks to select a jury,
most prospective members confessing
strong bias against the defen-
dants. The defense attorneys received
praise, not because anyone
sympathized with their clients, but
because what they had done
seemed to demonstrate the excellence of
this country's system of jus-
tice. "No American certainly, could
escape a feeling of satisfaction at
the conduct of this trial, so completely
the reverse of what would
have happened in like circumstances in
Soviet Russia," the Inquirer
editorialized with obvious pride.20
18. The New York Bar is quoted in ACLU
Weekly Bulletin #1561 (September 29,
1952), p. 1. For the resolution of the
Maryland Bar Association see William O. Doug-
las, An Almanac of Liberty (Garden
City, 1954), 286.
19. Philadelphia Inquirer, August
6, 1953, August 14, 1954; Worker, Nat Ed., July 5,
1953.
20. Philadelphia Inquirer, August
14, 1954.
Right to Counsel 37
The Cleveland Bar Association soon
followed the path blazed by its
counterpart in Philadelphia. When
federal prosecutors in the Ohio
city secured indictments against eleven
Communists in the fall of
1953, the American people were so
hostile to the CPUSA that sixty-
seven percent of them even opposed
allowing a Party member to give a
speech. By the summer of 1955 the
Cleveland defendants had managed
to retain only three lawyers. One of
these could work only part time, and
another later withdrew from the case.
Two of the Communists elected to
defend themselves, but five finally
informed Judge Charles J. McNamee
that they were financially unable to
employ counsel, thus compelling
him to assign lawyers to the case. Smith
Act trials were generally quite
long, and at the time appointed
attorneys still served without pay in
federal courts. Realizing that
participation in this case was likely to work
a financial hardship on any lawyer he
assigned, McNamee turned to the
Cleveland Bar. As it reported later,
"for the purpose of upholding the
right to counsel, the Association agreed
to assist the court."21
No member of the organization expressed
any objection to par-
ticipating in the defense of Communists.
The Cleveland Bar Associa-
tion, as its president, Eugene
Freedheim, emphasized, took on the
case as a public duty. So did the
assigned attorneys. No one,
Freedheim insisted, should attribute any
Communist beliefs or opin-
ions to them. "They only believe
that every man accused of crime is
entitled to a defense presented by
competent counsel as provided in
the United States Constitution," he
informed readers of the Cleve-
land News.22
After consultation with the association,
Judge McNamee appointed
one attorney from each of the six
leading trial law firms in the city,
the employers of these men agreeing to
donate their services for the
duration of the trial. The Cleveland Bar
volunteered to compensate an
additional attorney and to pay the
expenses of all seven appointed
lawyers. The organization's executive
committee estimated that
$30,000 would be needed. It requested
that local law firms not provid-
ing attorneys donate $100 per member and
asked lawyers' groups in
other northern Ohio cities to contribute
also. This fund drive, which
21. Gallup, The Gallup Poll, II,
1191; Cleveland Bar Association, "The Right to
Counsel: Report," TS, p. 1, RTC.
22. Eugene Freedheim, former President,
Cleveland Bar Association, personal inter-
view with author at his office,
Cleveland, Ohio, June 9, 1971; "Federal Judge Charles
J. McNamee Names 7 Attorneys to Defend
Communists," Cleveland Bar Association
Journal, (September, 1955), RTC; Cleveland News, November
2, 1955.
38 OHIO HISTORY
received the endorsement of the
executive committee of the state bar,
eventually raised $25,870.23
Judge McNamee commended the association
for its "magnificent
response" to a "most unusual
challenge," and the public apparently
shared his enthusiasm for its efforts on
behalf of the indicted Com-
munists. Freedheim heard no criticism of
what his organization was
doing, and the local press heaped praise
upon the bar. Even the
strongly anti-Communist Catholic
Universe Bulletin, although some-
what suspicious of the defendants' claim
that they could not obtain
counsel on their own, praised the seven
attorneys made available by
the organized bar for "performing
the highest duty of the legal
profession-giving their services to
uphold the principle that any person
accused of crime receive equal justice
before the law."24
Cleveland and Philadelphia were not the
only cities in which
lawyers' groups felt obliged to protect
the right to counsel. When a
group of Denver, Colorado, Smith Act
defendants, indicted in August
1954, found it impossible to obtain
attorneys, because of the "politi-
cal dangers" connected with their
case, the trial judge designated elev-
en leading lawyers-including a past
president of the local bar, a
former Republican party treasurer, and
the mayor's brother-in-law-
to represent them. Aware that the trial
would likely be a long one and
that working free might impose a
financial burden on the lawyers, he
appealed for help to the Denver Bar
Association. It responded by
taking up a collection to support them.
Much the same thing hap-
pened in New Haven, Connecticut. When a
Federal District Court
designated several attorneys to
represent a group of Communists
there in 1954-1956, the Connecticut Bar
Association, pointing to the
constitutional guarantees of the right
to counsel, urged the public to
support these lawyers and called upon
its own membership to provide
financial assistance. By assessing
senior members $5.00 and junior
members $2.50, and also soliciting
contributions, the association man-
aged to raise $15,000 in a little over a
year.25
The success of such fund raising efforts
and the favorable com-
ments of the press showed that in
defending the right to counsel the
23. Cleveland Bar Association, "The
Right to Counsel," p. 2; "Cleveland Bar Praised
in Smith Act Case," The Ohio
Bar, November 7, 1955, pp. 1091-1092.
24. McNamee to Freedheim, August 17, 1955,
RTC; Freedheim interview; Cleveland
Press, August 13, 1955; Catholic Universe Bulletin article
by James T. Flannery, Oc-
tober 28, 1955, RTC.
25. Department of Justice,
"List"; Cleveland Press, March 14, 1956; A. L. Wirin and
Samuel Rosenwein, "The Smith Act
Score," Nation, February 26, 1955, p. 179; Denver
Post, May 26, 1955;Daily Worker, October 20, 1954, May
16, October 24, 1955, December
7, 1956; Worker, Nat. Ed.,
October 2, 1955.
Right to Counsel 39
bar was championing a popular cause. But
there seemed little reason
to doubt that the government's attack on
the CPUSA also enjoyed
widespread support, and it remained to
be seen how the public would
respond if the activities of the lawyers
seriously interfered with it. By
the end of 1954 the Red Scare had
clearly crested, and the tide of
anti-Communist excess was beginning to
recede. The Korean armis-
tice, signed in July 1953, had helped to
calm the national temper, and
with Dwight D. Eisenhower in the White
House Republicans lacked
the partisan motivation for making wild
charges about Communism in
the federal bureaucracy which had animated
them during the Truman
administration. Senator Joseph McCarthy,
who had ridden such ac-
cusations to fame and power, continued
to fling them about, but his
popularity had begun to drop in early
1954, and his televised confron-
tation with the Department of the Army
in the late spring of that year
had dealt it a fatal blow. In December
his Senate colleagues censured
him.26
The downfall of McCarthy did not mean
the end of everything con-
noted by the term McCarthyism. Even the
strongest critics of the
Wisconsin Senator still felt the need to
make public professions of
their anti-Communism. As one civil
libertarian has observed,
"the king was dead, but his kingdom
was well institutionalized on the
conscious and unconscious levels."27 The problem
with McCarthy,
said the Cleveland Plain Dealer, was
not his purpose, but the fact that
his cruel and reckless methods were
"doing the cause of exposing
Communism no good...." That paper's
rival, the Cleveland
Press, probably spoke for much of the country when it wrote
that
"we don't want Communism and we
don't want McCarthyism."
What the public seemed to desire was an
attack on domestic
radicalism that was both decently
conducted and successful. It hoped
to preserve civil liberties while at the
same time smashing Com-
munism. Americans seemed to believe that
it was possible to satisfy
both desires simultaneously, and had not
decided which of these objec-
tives should have priority in the event
of conflict.28
That decision was one which they could
not long avoid, for the
efforts of the bar associations were
drawing into Smith Act cases
talented lawyers with the ability to win
acquittals for their Communist
26. On the decline of McCarthy's
popularity and the impact of the Army-McCarthy
hearings on his standing with the public
see Gallup, The Gallup Poll, II, 1201, 1220,
1225, 1229, 1235, 1237, 1241, 1247,
1263.
27. John W. Caughey, "McCarthyism
Rampant," in Alan Reitman, ed., The Pulse of
Freedom: American Liberties
1920-1970's (New York, 1975), 186-187.
28. Cleveland Plain Dealer, June
11, 1954; Cleveland Press, May 14, 1954.
40 OHIO HISTORY
clients. Through skillful cross
examination, Joseph Lord, one of the
Philadelphia defense attorneys, exposed
a key figure in the prosecu-
tion's case, Paul Crouch, as a liar,
demonstrating that in the past he
had made statements which flatly
contradicted his testimony at the
trial. In Denver, John Shafroth was
equally rough on a government
witness and badly undermined the efforts
of Justice Department at-
torneys to establish that the CPUSA was
plotting a violent revolution.
The defense teams in Philadelphia and
Cleveland offered expert tes-
timony by a non-Communist academic, Dr.
John Somerville, to refute
claims that the Party's philosophy dictated
forceful overthrow of the
government. Indicating the skill of
these attorneys were the attempts
made by those handling the Cleveland and
New Haven cases to have
them tried by judges sitting alone,
which would have saved their
clients from juries representative of a
hostile public.29
At first, despite their ability, the
attorneys made available through
the efforts of professional associations
enjoyed no greater success
than those advocates who had tried Smith
Act cases before them. The
Philadelphia trial ended in August 1954
with the conviction of all of
the accused, and the Denver defense
attorneys won the appreciation
of their clients, but no acquittals.30
Cleveland was different. The impressive
array of legal talent repre-
senting the defendants there made
Communists optimistic about their
prospects in that trial. The CPUSA had
long contended that criminal
cases were won in the streets, but in a
total break with tradition the
Party's weekly newspaper, The Worker,
conceded that "should the
defense succeed in wresting even partial
victory, it will be due to the
competency and ability of these lawyers
as well as to the prevailing
political climate of lessening tensions
abroad and at home."31 Even
before the jury began its deliberations,
the defendants wrote to thank
the Cleveland Bar Association for the
performance of the attorneys
that organization had supplied. "It
has reaffirmed the great readiness
of the American people in general, and
the legal profession in particu-
29. Cleveland Plain Dealer, May
20, 1954; John Somerville, The Communist Trials
and the American Tradition: Expert
Testimony on Force and Violence (New
York,
1956), 7-9; Daily Worker, May 16,
1955; United States v. Brandt, no. 21,076-Crim
(N.D. Ohio 1955), Transcript Ordered by
Court of Appeals, pp. 837-872, opinion report
in 139 F. Supp. 367 (N.D. Ohio 1955),
hereafter cited as Brandt Transcript. The Cleve-
land and Connecticut proceedings were
jury trials, because the prosecution refused to
consent to their being heard by a judge
alone.
30. Department of Justice,
"List"; Denver Post, May 26, 1955.
31. Julia Brown, I Testify: My Years
as an Undercover Agent for the FBI (Boston,
1966), 83-84; Worker, New
York-Harlem Ed., January 15, 1956.
Right to Counsel 41
lar, to uphold the finest traditions of
democracy in our land," they
said.32
As the Party hoped, the gradual
relaxation of the Cold War, the
waning of the Red Scare, and high
quality legal talent combined to
produce pleasant results. On January 5,
1956, after the prosecution
rested its case, Judge McNamee directed
a verdict of acquittal for one
of the twelve defendants, David Katz.
Although Katz had long been
active in the Communist movement, the
evidence which the govern-
ment had presented against him consisted
mainly of material relating
to the activities of his wife, in which
he had been involved only as her
companion. McNamee considered such proof
insufficient to provide
any reasonable basis for a finding of
guilt. As the Cleveland Plain
Dealer was quick to point out, in eleven previous Smith Act
trials
around the country judges had seen fit
to free only two of more than
one hundred defendants. The action of
the Cleveland jury was even
more unprecedented. Its deliberations,
which lasted from January 31
to February 10, were the longest in any
Smith Act trial, and its mem-
bers took several dozen ballots. In the
end the jurors found six defen-
dants guilty, but voted to free four
others. Never before had a jury
acquitted even one Smith Act defendant.33
Those freed in Cleveland were
indistinguishable from the radicals
convicted in earlier trials. The four
acquitted by the jury (Joseph
Dougher, Frieda Katz, Michael Campbell,
and Elvidore Greenfield)
all had long records as Party activists.
In earlier Smith Act trials that
had sufficed to convict accused
Communists. In these cases the pro-
secution, rather than proving that the indicted
individuals had taught
and advocated violent revolution, simply
piled up evidence against
the Party, and then urged jurors to find
the defendants guilty because
of their association with it. Much of
the evidence against the radicals
freed in Cleveland related to activities
a number of years in the past,
but that was standard in Smith Act
cases. Judge McNamee consid-
ered the proof against Greenfield and
Campbell rather weak, but suf-
ficient to present a jury question, and
regarded that against Dougher
and Mrs. Katz as more than ample to
support any verdict. The gov-
ernment had won before with less
evidence than it had against these
32. Lucille Bethencourt, et. al. to
the Cleveland Bar Association, January 30, 1956,
RTC.
33. Brandt Transcript, 1097-1098,
1422-1446; Cleveland Plain Dealer, January 6,
1956; Cleveland News, February
10, 1956. According to the News, much of the delay
resulted from a stalemate over
defendants Hashmall and Bethencourt, both of whom
were eventually convicted. That paper's source of
information was the jury foreman,
Richard Gleason.
42 OHIO HISTORY
four. Their acquittal was due not so
much to the weakness of the
prosecution's case as to the skill of
the defense lawyers.34
After the jury returned its verdict,
McNamee publicly commended
the performance of the appointed
attorneys. "I am proud of the way
in which they represented these clients
. ..," he said.35 Many people
apparently shared the judge's feelings,
for public reaction to the sur-
prise outcome of the trial was generally
favorable. Communists were
pleased, of course, although the six
convictions tempered their joy
somewhat. The Party press represented
the Cleveland verdicts as a
breakthrough, and Frieda Katz viewed them
in the same light. The
defendants, and Stalinist newspapers on
both coasts, agreed that the
outcome of this case represented a
setback for McCarthyism and an
important advance in the struggle
against the Smith Act.36
Others less personally interested in the
verdicts than the Com-
munists also praised the outcome of the
trial and the work of the
lawyers supplied by the bar association.
What had happened in Cleve-
land, many felt, proved the superiority
of this country's judicial sys-
tem. "American justice has served
to its highest degree in this case,"
the News editorialized, adding
that a completely opposite outcome
would have resulted in Russia or any
other Iron Curtain country. The
Press echoed these sentiments, declaring, "this is America
at its
proud best." The Plain Dealer agreed-and
praised the self-
sacrificing attorneys who had
represented the Communist defendants.
Municipal Judge Perry Jackson did the
same, writing to the Cleveland
Bar Association to commend the work of
that organization and the
lawyers it had provided.37
While a chorus sang the praises of
Freedheim and his colleagues,
glorifying their campaign for
preservation of the right to counsel de-
spite the fact that it had rescued five
Communists, the Justice De-
partment conspicuously dissented. It
took the Cleveland defeat badly.
Asked to comment on the acquittals, a
government lawyer replied, "I
think the verdict stinks."38 Assistant
Attorney General William F.
34. For summaries of the evidence
against these four see Brandt Transcript, 1094-
1098, 1253-1256; Brandt v. United
States, 256 F. 2d 79 (6th Cir. 1958), also provides
some information concerning the cases
against them. For McNamee's evaluation of it
see Brandt Transcript, 1118-1123
and 1133-1155. On the backgrounds of the other Smith
Act defendants and the nature of the
case presented by the government in the other
Smith Act trials see Belknap,
"Smith Act," 164-176, 189-216, 345-362.
35. Address of Judge McNamee to the
jury, RTC.
36. Cleveland News, February 10,
1956; Daily Worker, February 13, 1956; Daily
People's World, February 14, 1956.
37. Cleveland News, February 13,
1956; Cleveland Press, February 14, 1956; Cleve-
land Plain Dealer, February 11, 1956; Jackson to Freedheim, March 2, 1956,
RTC.
38. Cleveland Press, February 10,
1956.
Right to Counsel 43 |
|
Tompkins, who headed the department's Internal Security Division, was equally outspoken. On March 5 he told a United Press reporter, Robert F. Coil, that the volunteer defense of Communist leaders by local bar associations was helping the CPUSA and undermining the Smith Act. Tompkins sharply criticized the Cleveland and Cuyahoga County bars and branded lawyers who aided Smith Act defendants as "dupes of the Communists."39 Throughout the McCarthy Era few Americans had doubted the preeminent importance of defeating Communism. Now Tompkins had condemned the bar associations for disrupting his department's highly successful prosecution of the CPUSA, and had done so in terms which amounted to an accusation that the lawyers were guilty of giving aid and comfort to the enemy. His remarks confronted organized attorneys with the first serious test of their commitment to the principle they had been championing, and the public with the kind of hard choice between the protection of
39. Ibid., March 6, 1956. |
44 OHIO HISTORY
basic American rights and the conquest
of Communism which the
controversy over Senator McCarthy had
not posed.
Although the Cleveland acquittals had
triggered Tompkins' out-
burst, other factors lay in the
background. One reason for his anger
was that local bar associations were
foiling a Justice Department plan
to bankrupt the Communist Party. On
March 14 spokesmen for At-
torney General Herbert Brownell admitted
that one of the govern-
ment's objectives in trying leaders of
the CPUSA was to force the
organization to expend its limited
resources on legal defense.
Tompkins was also politically ambitious
and was angling for the Re-
publican gubernatorial nomination in New
Jersey. His principal op-
ponent in a fight for control of the GOP
organization in Essex County
was liberal Senator Clifford Case, whom
McCarthy had attacked dur-
ing the 1954 campaign. Tompkins may well
have viewed an assault on
the Cleveland Bar Association as a means
of rallying anti-
Communists to his candidacy.40
Whatever the motivation behind his
remarks, clearly the Assistant
Attorney General had challenged the
honor of Cleveland attorneys.
Convinced, not only that they had done
nothing wrong, but that they
had acted in the finest traditions of
the legal profession, the lawyers
fought back. Eugene Freedheim promptly
released a statement brand-
ing Tompkins' remarks
"unfair." "The community here in Cleveland
knows that we are not dupes of the
Communist Party," he declared
emphatically. "It knows that we are
dupes of nobody ...."41
At the bar association's next regular
luncheon meeting, Judge
McNamee and the seven appointed
attorneys sat at the head table as
honored guests while Freedheim informed
the membership that the
organization was not going to accept
without protest this attack upon
it for upholding the sworn duty of the
legal profession. A special
meeting of the executive committee, he
announced, had authorized
the filing of a complaint against the
Assistant Attorney General with
the Grievance Committee of the American
Bar Association (ABA),
charging him with violation of the
Canons of Professional Ethics. Pre-
sent to hear these fighting words was
the scheduled speaker, ABA
President E. Smythe Gambrell. When his
turn came to address the
assembled lawyers, Gambrell reminded
them that the ABA had al-
ways taken a firm stand against
Communism, but added that it
nevertheless felt members of the CPUSA
were entitled to a fair trial.
40. Freedhiem regarded the acquittals as
Tompkins' primary motivation. For the
other reasons for his outburst see Cleveland
Press, March 14, 1956.
41. A copy of Freedheim's statement is
to be found in RTC.
Right to Counsel 45
Gambrell vigorously defended those local
bar associations which had
provided counsel for accused Communists.42
Others also leaped to the defense of the
Cleveland lawyers. On March
7 the executive director of the ACLU,
Patrick Malin, dispatched a
telegram to the Assistant Attorney
General, expressing shock at his
remarks. They represented, said Malin,
an attack not only on local bar
associations and individual attorneys,
but also on the constitutional
rights of everyone accused of a crime.
The seriousness of the situation
was aggravated, he pointed out, by the
fact that several Smith Act cases,
including the New Haven one, were still
before the courts. Malin re-
minded Tompkins that in a 1953 speech
Attorney General Brownell had
contrasted this country's system of
justice with Russia's and had cited
as proof of the American's superiority
the right of defendants here to the
protection of the Sixth Amendment. The
Ohio Civil Liberties Union
complained to Brownell, reminding him
that all the Cleveland Bar
Association had done was help shoulder
the burden of assuring Com-
munists the representation to which the
Constitution entitled them.43
"If the Smith Act is undermined by
the right to counsel," observed this
ACLU affiliate, "then its
foundations must be weak."44
Spokesmen for other bar associations
joined civil liberties unions in
condemning Tompkins and expressing
support for the Cleveland or-
ganization. Philadelphia defense
attorney Thomas McBride told the
press that lawyers in that city resented
the Assistant Attorney Gener-
al's charge and intended to demand both
a public apology and a dis-
avowal of his remarks by his Justice
Department superiors. Spokes-
men for the Denver and Connecticut bar
associations expressed simi-
lar sentiments, emphasizing that the
members of their groups were
not ashamed of defending Communists and
did not believe anyone
had duped them. The Cuyahoga County Bar
Association wrote the
Attorney General urging him to give
Tompkins' statements his personal
attention, and Gambrell again publicly
commended Freedheim and his
colleagues.45
The press also lined up behind the
Cleveland Bar. "Many news-
papers jumped into the issue,"
Freedheim reported later, "and none
of them, so far as I know, sided with
the Assistant Attorney General's
statement."46 The Cleveland
Plain Dealer questioned Tompkins'
42. Cleveland Bar Association, "The
Right to Counsel," pp. 2-5; Cleveland Press,
March 8, 1956.
43. ACLU Weekly Bulletin #1741 (March
12, 1956), pp. 1-2; Cleveland Press,
March 7, 1956.
44. Quoted in ACLU Weekly Bulletin #1741
(March 12, 1956), p. 2.
45. Cleveland Press, March 8, 15, 1956; Cleveland News, March 8,
1956.
46. Freedheim interview.
46 OHIO HISTORY
value to the Eisenhower administration,
and the New York Post
commented that the remarks attributed to
him cast grave doubt on his
fitness to retain office. The Washington
Post and the Cleveland Press
were also highly critical. The Akron
Beacon-Journal expressed the
sentiment of many newspapers when it
declared, "Judge McNamee
and the lawyers who responded to his
appeal are not 'dupes.' They
simply were more sensitive than Tompkins
to a fundamental tradition
of American justice-that every accused
person is entitled to a proper
defense."47
Supported by the press and much of the
legal profession, the Cleve-
land Bar Association launched a
counterattack. Regarding the matter
as too important to settle in any other
way, Freedheim and defense
attorney George Farr flew to Washington
on March 15, hoping for a
face-to-face showdown with the Attorney
General. They did not get
one. The Justice Department had become
extremely sensitive about
the Tompkins incident, imposing a tight
ban on comments to the press
about it. Brownell, although in
Washington and apparently in the
building, would not see the visitors
from Cleveland. Freedheim and
Farr did manage, however, to obtain a
meeting with Tompkins, his
assistant Thomas Hall, and Deputy
Attorney General William Rogers.
Although Justice attempted to camouflage
a retreat under fire, the
outcome of this six hour conference was
clearly a victory for the
Cleveland Bar Association. Rogers
contended that, for political
reasons, the Department could not
possibly give Freedheim and Farr
the retraction they wanted, but agreed
to accept some formula that
would allow his agency to back off
without embarrassment. In the
end Tompkins issued a statement in which
he denied ever challenging
the right of any defendant, however
unpopular, to an attorney or
criticizing the Cleveland Bar
Association, either directly or indirectly.
According to the Assistant Attorney
General, he had intended only to
note that, while the first Smith Act
defendants had engaged their own
lawyers, more recent ones had relied on
court-appointed counsel.48
Freedheim and Farr announced that they
were willing to terminate
the dispute on the basis of this
statement, and the executive commit-
47. New York Post, March 8, 1956;
Cleveland Plain Dealer, March 8, 1956; Cleve-
land Press, March 7, 1956; Washington Post, March 11, 1956; Akron
Beacon-Journal
March 7, 1956.
48. This account of the confrontation
between the Cleveland lawyers and the De-
partment of Justice is based heavily on
the Freedheim interview and also draws on New
York Times, March 16, 1956; Cleveland Plain Dealer, March
16, 1956; and Cleveland
Bar Association, "The Right to
Counsel," pp. 4-5. For information on the press black-
out see ACLU Weekly Bulletin #1743
(March 26, 1956), p. 1.
Right to Counsel 47
tee of their organization subsequently
voted to do so. The Cleveland
Bar received some criticism for ending
the fight by accepting
Tompkins' implausible denial. Coll, who
had conducted the interview
with the Assistant Attorney General,
took exception to having his
own veracity questioned in order that
the Justice Department might
get out of a difficult position. He
promptly produced hand-written
notes which established that Tompkins
had called lawyers who de-
fended Communists not only
"dupes," but also "suckers." The New
York Post blasted Tompkins for compounding his offense by
"trying
to make a newspaperman take the rap for
him," and the Cleveland Press
chided the bar for abandoning the battle
with the Assistant Attorney
General. As far as the lawyers were
concerned, though, the issue was
now one between the Justice Department
and the newspapers. They had
involved themselves in the Smith Act
case for the purpose of safeguard-
ing the Sixth Amendment and had fought
Tompkins only because he
demeaned their endeavor by
characterizing it as a misguided interfer-
ence with the government's war on
Communism. Now that the trial was
over and the Assistant Attorney General
had conceded the validity of
the principle they were seeking to
maintain, the attorneys saw no reason
to press their attack. The bar had
achieved its objective: vindication of
the right to counsel.49
For their vigorous defense of that
constitutional principle,
Freedheim and his colleagues received
numerous plaudits. The Na-
tion and the St. Louis Post-Dispatch praised the
president of the
Cleveland Bar Association, and Dean
Erwin Griswold of the Harvard
Law School wrote him to express
appreciation for the way his group
had responded to remarks which could not
have passed unchallenged.
Quite different was the effect of the
incident on Tompkins' reputa-
tion. The ABA openly questioned his
honesty, and charges of smear
and attempting to intimidate lawyers
continued to echo through the
pages of the Cleveland Press. The
New York Post editorialized with
acid sarcasm: "We welcome Tompkins'
belated announcement that
he is reconciled to the provision of the
Bill of Rights guaranteeing the
right to counsel." The Assistant
Attorney General's political star fell
to earth, and no more was heard of his
bid for the governorship of
49. The account of the settlement is
based on the Freedheim interview and on New
York Times, March 16, 1956. The Times article and Cleveland
Press, March 17, 1956,
report Coll's revelation of his notes.
Freedheim mentioned the adverse reaction of the
Press in the interview, and that of the New York Post appears
in its issue of March 18,
1956.
48 OHIO HISTORY
New Jersey. In March 1958, citing
"personal reasons," he resigned
from the Justice Department to return to private law
practice.50
The triumph of the Cleveland Bar
Association was also a victory
for the Bill of Rights. The organized
lawyers in Ohio and other states
who offered assistance to radicals
charged with violation of the Smith
Act did so only to ensure the survival
of a single constitutional princi-
ple in which members of the legal
profession had a large and personal
stake. Because their campaign impeded
government efforts to jail
leaders of the CPUSA, it forced other
Americans to weigh
competing values and to decide which was
more important, the con-
quest of Communism or the preservation
of the traditional rights and
privileges of United States citizenship.
The acclaim which accrued to
those local bar associations that
assisted Smith Act defendants and
the support which the one in Cleveland
received during its confronta-
tion with Tompkins attested to a
widespread rejection of the priorities
fundamental to McCarthyism. The extent
to which the fight for the
right to counsel simply revealed a
change in popular attitudes already
under way and the extent to which it
caused that transformation can-
not be determined, but seldom, if ever,
has the American bar been a
greater moral force than in the era of
McCarthyism. Never has it served
the public better than it did in its
fight for the right to counsel.
50. "The Nation Applauds," Nation,
April 7, 1956, p.271; St. Louis Post-Dispatch,
March 23, 1956; Griswold to Freedheim,
March 21, 1956, RTC; "The Press Is Saying,"
American Bar Association Co-ordinator
and Public Relations Bulletin, June
15, 1956,
RTC; Cleveland Press, April 11,
1956; New York Post, March 18, 1956; Tompkins to
Attorney General William Rogers, March
12, 1958, William P. Rogers Papers, Dwight
D. Eisenhower Presidential Library.
MICHAL R. BELKNAP
The Fight for the
Right to Counsel
Too often the American bar has been, as
Adolf Berle once
lamented, "an intellectual jobber
and contractor, rather than a moral
force"; but there have been times
when the bar has provided the
country with highly principled and badly
needed leadership.1 In the
early 1950s, an era troubled by the
anti-Communist excess known as
McCarthyism, many civil liberties and
constitutional guarantees were
in danger, among them the right to
counsel. In order to preserve that
right, a number of local bar
associations offered to provide attorneys
to Communists who could not otherwise
have obtained them. When
attacked for doing so, these lawyers not
only persisted in their de-
fense of a principle in which they
believed, but led by the Cleveland
Bar Association, fought back against
their most outspoken critic. The
battle waged by these attorneys for the
right to counsel forced the
public to confront an issue which it had
until then managed to evade:
whether a successful attack on domestic
Communism was more im-
portant than preserving the traditional
guarantees of the American
constitutional system. Many people,
deciding it was not, rallied to the
standard which the lawyers had raised,
abandoning the system of
values and priorities that had supported
the second American Red
Scare.
During this era of anti-radical feeling,
members of the Communist
Party of the United States (CPUSA) who
needed lawyers often could
not retain them. The reason was public
hostility arising from a widely
held belief that these dissidents were
the traitorous agents of a hostile
power. The late 1940s and early 1950s
were a period of intense Cold
War between the United States and the
Soviet Union, and most
Americans believed that in this conflict
the loyalties of domestic
Communists lay with the Russian enemy,
rather than with their
Dr. Belknap is Assistant Professor of
History at The University of Texas at Austin.
1. Quoted in James Willard Hurst, The
Growth of American Law: The Lawmakers
(Boston, 1950), 355.