Ohio History Journal

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.

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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.

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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.

• 3
 

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.

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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.

• 5
 

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.)

• 6
 

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.

• 7
 

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.

• 8
 

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.

• 9
 

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.

• 10
 

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.

• 11
 

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.

• 12
 

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.

• 13
 

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.

• 14
 

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.

• 15
 

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.

• 16
 

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.

• 17
 

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.

• 18
 

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.

• 19
 

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.

• 20
 

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.

• 21