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Vol. III, No. 1
October, 1957

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Conspiracy to Advocate

Since the passage of the Smith Act in 1940, 17 groups of defendants have been brought to trial for conspiracy to advocate the overthrow of the U. S. Government by force and violence. The first group, members of the Socialist Workers Party in the middle west, were convicted (Dunn, et al. v. U. S., 138 F. 2d 137) and the Supreme Court denied certiorari (320 U. S. 790, 1943).

The remaining 16 cases involve groups of leaders and members of the Communist Party, with a total of 138 persons indicted since 1948. Of the 14 cases already tried, only 2 have been heard on appeal by the Supreme Court. Dennis v. U. S. (341 U. S. 494) was heard in 1951. The Court denied certiorari in the next two Smith Act cases coming before it: Flynn v. U. S. (216 F. 2d 354 (CA 2 1954) and Frankfcld v. U. S. (198 F. 2d 679 (CA 4 1952)). In June, 1957, the Court handed down its decision in Yates, 304 U. S. 98.

The status of Smith Act cases since the Court's decision in Yates is summarized below:

5 Defs. severed prior to trial.

3 died during proceedings, not included above.

Total defendants in table: 138

Of the defendants acquitted, all were acquitted on due process grounds: insufficiency of evidence, improper instructions by Court on "advocacy", impropriety of "organizing" charge, etc. No defendants have been acquitted on the basis of denial of their First Amendment rights to freedom of speech, press, assembly, political belief. But see dissent by Black, J., in Dennis, and his concurrence in Yates.

See cases at 241.1-.13, pp. 5-6.

Membership in the Communist Party

Since 1954 eight persons have been indicted solely under the membership clause in the Smith Act. Four of the cases have not yet been tried, the trial courts having continued the cases expecting a decision on the constitutionality and interpretation of the statute by the Supreme Court in the Lightfoot and Scales cases, 242.1 and .2. The Court has just reversed these two convictions and remanded for new trials, under the Jencks decision, 291.1. Two cases are pending before Courts of Appeals in the Second and Third Circuits.

Unreliability of Government Witnesses

In several recent proceedings, the Government has confessed the unreliability of its own witnesses, or courts and administrative agencies have held such witnesses to be not worthy of belief. The testimony of Isaac Alexander Wright was stricken from the record in Brownell v. American Peace Crusade, 211.7, before the Subversive Activities Control Bd. The testimony of Mazzei was found unreliable in Mesarosh, 241.2 and Sheiner, 265.3. (The Government dropped the Mesarosh case when remanded for new trial. Key witnesses had been Mazzei and Cvetic.) The Court of Appeals for the Seventh Circuit just upheld the dismissal of deportation proceedings in Yiannopoulos, 355.6, because based on unreliable testimony of Nowells and Syrakis. And the Board of Immigration Appeals itself just reversed a finding of deportability in Navarrete-Sanchez, 355.7, because three Gov't witnesses were unreliable.

Reversals of Government Positions

The Government has confessed error in three Fifth Amendment cases involving witnesses before Congressional Committees who declined to answer questions concerning their addresses. (See McKenzie, Wollam, Simpson, 331,4, .5, .6.)

The Attorney General recently removed the Association of Lithuanian Workers and Lithuanian Literary Association (221.3) from his list of subversive organizations. No reason was given. At the same time the Attorney General notified the Supreme Court that the cases brought by these organizations had become moot. (These organizations had taken defaults rather than answer the many interrogatories propounded by Brownell.)

Miscellaneous Cases

The trial court ordered a verdict of acquittal in the McDaniel case (292.1) involving an employee charged with answering falsely a security questionnaire for a contractor for the A.E.C.

In the first test of the power of a Congressional Committee to compel witnesses to answer, despite a claim of the privilege against self-incrimination, under the Immunity Act of 1954, the Court of Appeals for the District of Columbia reversed and directed that the Government's application for immunity be dismissed (Glasser, 334.2).