FOLEY SQUARE MARATHON
By EDWARD MONTGOMERY New York tf HIS is the goldarndest trial I ever saw." That is how, in a moment of exasperation, the presiding judge himself described the proceedings in the trial of eleven members of the American Communist Party, which is now in its eighteenth week of hearings in the Federal Court House in Foley Square, New York City. It is probable that no British judge has ever been forced to descend to the vernacular to characterise the proceedings in his own court-room. It is also probable that, if he did so, he would be subject to at least a mild reproof from the Law Lords when the case was brought to them on appeal. But then no British judge would ever have to face the incredible difficulties and complexities that Judge Harold R. Medina has had to contend with in conducting the trial over which he is presiding. Nor would a British judge put up for five minutes with the deliberate baiting by defence counsel which Judge Medina has endured for nearly a hundred wearying court-room days. If he had to, he might well be tempted to use the stronger adjective for which Judge Medina cautiously sub- stituted the old New England farmer's euphemism. When the trial opened on January 17th of this year, it had already been in the making for over eighteen months. The eleven defendants were indicted on July zoth last year by a New York Federal grand jury, which had been specially empanelled more than a year before to investigate the activities of the Communist Party in the United States. Originally there were twelve under indictment, but the trial of William Z. Foster, the national chairman, has been stayed. The eleven are charged with conspiring to organise a group or society which advocates and teaches the overthrow and destruction of the Governmeni of the United States by force and violence, in violation of the Smith Act of 1940. This Act, whosc chief provision was to require the registration with the federal authorities of all aliens resident in America, was a security measure passed in the days of Nazi-Soviet collaboration, and was directed equally against both Fascist and Communist subversive activity. Conviction for an offence under the Act carries a maximum penalty of ten years' imprisonment and/or a fine of St o,000.
• The date originally set for the trial was October 15th of last year. But by various legal evasions the defence succeeded in delaying it until January 17th. Immediately it opened the defence challenged the legality of the system by which federal juries are chosen in the Soinhern District of New York. Defence counsel charged that this System was "discriminatory, invalid, illegal and unconstitutional." They claimed that the procedure for empanelling juries "system- atically excluded the poor, the working class, women, and other minorities" especially Jews and Negroes. Therefore, they contended, it would be impossible for the defendants to receive a fair and impartial trial.
The proceedings on this issue, which virtually became "a trial within a trial" with the Government as the defendant and the accused as plaintiffs, consumed over seven weeks. One witness alone, Professor Doxey Wilkerson of the Jefferson School of Social Research, took up eight days in demonstrating to the court with elaborate diagrams and charts how the empanelling system produced juries exclusively composed of wealthy residents of Park Avenue and other upper-class and reactionary elements. On March 4th Judge Medina handed down a thirty-two page written ruling denying the defence's challenge. One of the curious background aspects of this was that, in his last big case as a trial lawyer before his appointment as a Federal judge in 1947, Judge Medina had appealed to the United States Supreme Court on behalf of two labour leaders whom he was defending against charges of extortion, on the ground that the jury which convicted them was `biased because it Was made up of " persons from the upper economic and social stratum" and there- fore not "a true cross-sectiOn of the community."
But the best support for Judge Medina's ruling, and the complete refutation of the defence challenge, was provided by the composition of the jury itself as finally selected by the system that had been under attack. When the "twelve good men and true" finally took their places in the jury box on March t6th, there were among them three Negroes (including the woman foreman), two unemployed, two manual workers, two with "names usually considered Jewish "- as the New York Times delicately put it—and only one person wlio might by the widest definition be described as coming from the wealthy upper class, the playwright and producer Russell Janney. Among the others were a part-time dressmaker, the wife of a taxi- driver, a retired beer salesman, a telephone maintenance worker, a former stenographer-typist, a department store clerk.
The eleven defendants who face the jury across the court-room comprise the top leadership of the Communist Party in America. They are all either members of the national board of the party or chairmen of district branches. The first witness seemed to confirm this prediction. He was Louis F. Budenz, former managing editor of the Daily Worker, who left the party in 1945 after Broader's expulsion, became a Catholic, and is now a professor at Fordham University. Like many apostates, he has swung violently from one extreme to the other, and the quality of his testimony was prejudiced by his vehement anti-Stalinism.
But the prosecution's second witness was a real surprise, and a visible shock to the defence. A young advertising salesman from Boston, happily-married father of four children, devout member of his local Baptist church, named Herbert Philbrick, testified that up to the moment of his stepping into the witness-box to take the oath he had been a member in good standing of the Communist Party and had been active in party work for nine years. He testified further that during the whole of those nine years he had been in constant communication with agents of the Federal Bureau of Investigation, and had reported to them faithfully on all aspects of party activity that came within his knowledge. Philbrick was not the only one. Witness after witness whom the prosecution has called since has testified to becoming members of the party with the knowledge and connivance of the F.B.I., and to keeping the F.B.I. continually informed of party activity. The F.B.I. apparently had nothing to learn from Communism on the tactics of infiltration.
The pattern of the evidence given by these prosecution witnesses, of whom there have so far been twelve, soon lost all its novelty, and has by now become wearisomely repetitive—secret meetings, use of false names, efforts to infiltrate into trade unions, key industrial plants and government offices, the teaching of Leninist and Stalinist theories and tactics of violent revolution, the organise- . non of 'resistance to anti-Soviet foreign policy and preparations for sabotaging any war effort directed against the Soviet Union. And throughout it all the six defence counsel—and Eugene Dennis, who is conducting his own defence—keep up their constant barrage of- baiting judge Medina in an effort to make him lose his temper, and in a moment of anger do or say something that will give the defence valid legal grounds for moving a mis-trial. He pointed out last week that of the 8,86o pages to which the record of the trial so far ran, 1,554 pages were taken up by the arguments of defence counsel; though the defence has not yet even opened its case.
But what is on trial in the court-house at Foley Square is much more than a trial of a judge's patience, or even of the eleven defendants in the dock. It is a trial of the ability of a democracy, while preserving the political freedoms proper to democracy, to- defend itself against political methods designed to destroy those freedoms. As well as being the " goldarndest," it is probably the most important trial of American constitutional government in Its hundred and sixty years of history.
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