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. O-19 (Rev. 10-20-57) —— ee the use of juries in criminal i * Smith Act case. s over tempt cases and finally compromised. Now thé-Supreme Court has wrestled with the same issue and divided five to four. These isolated facts accurately measure the highly controversial nature of the issue. Yet it seems to us that the majority of the Court has come up with the best answer from the viewpoints of history, law and orderly processes of government. The Court has adhered to the concept of the contempt power that has been written into the law since the country was founded and which has been repeatedly upheld by the Court itself. Con- sequently it found no fault in the sentencing of Gilbert Green and Henry Winston, Smith Act convicts, to three years in prison (in addition to their five-year sentences under the Smith Act) for contempt of court. Their contempt consisted of disappearing for 414 years after they had been ordered to be present for sentencing. Were the sentences unduly severe? ast summer Congress fought for week Justice "Harlan. writing for the Court, answered “no” be- ause the contempt was 2a “most egregious one.” i'The sentences were shorter by a year than that im- posed on one other Communist fugitive in the Congress has since provided a five-year maximum penalty for bail-jumping. Why were not the fugitives indicted and grose- cuted for bail-jumping with a trial by jury? riy everyone seems to agree that this would have Bren the more satisfactory procedure. At the time } e offenses were committed, ‘however, bail-jumping was not a Federal crime. This fact would not, of course, justify the courts in resorting to arbitrary procedure. But it certainly left the door open for application of the contempt power in the same manner in which it has been used for a century and a half. ‘Justice Black’s sweeping dissent, in which Chief Justice Warren and Justice Douglas foined, would outlaw this use of the contempt power as a viola- tion of the Bill of Rights. In other words, these three dissenters (Justice Brennan stood on other ground) insisted that the defendants were entitled “to be tried by a fury after indictment by-a grand jtry and in full accordance with all the procedyml sai ifguards required by the Constitution ‘all erit cab tp sostion | acd ys oe + , ae * i” “marily for contempt “has been accepted without} Papgons ing opinion that the power to punish sum- question” by the Supreme Court In at least 40) -cases, By way of making his point more effective he called the rol! of 53 justices who have partici- pated in these decisions, including Marshall, Story, Bradley, Holmes, Hughes, Brandeis, Stone, Cardozo and Jackson. Mr. Frankfurter cut close to the heart of the issue when he wrote: To be'sure, it is never too late for this Court to correct a misconception in an occasional de- cision, even on a rare occasion, to change a rule of Jaw that may have long persisted but also have long been questioned and only fluctuatingly applied. To say that everybody on the Court has been wrong for 150 years and that that which has been deemed a part of the bone and sinew of the law should now be extirpated is quite an- other thing. Decision-making is not a mechanical process, but neither is this Court an originating lawmaker, The admonition of Mr. Justice Bran- . deis that we are not a third branch of the legis- , lature should never be disregarded. | Congress may require jury trials in contempt ‘cases when that seems appropriate, as it has some- ‘times done in the past. But when Congress has repeatedly given the courts power of summary unishment for contempt and when the country’s blest judges over # long period have found no afrier in the Constitution, it would be drastic inqeed for a few saan to sweep away the whole structu ré ANS ju cial restrai * a ’: ry ret if. ol ata ane Wash. Post and Times Herald Wash, News oh Wash. Star 23 N. Y. Herald Tribune N. Y. Journal- American N. Y. Mirror “N.Y. Daily News — HDYD-COPY FILED IN”, C " N.Y. Times Daily Worker ‘T otker a SES —| Leader wen og be? TEBE OS st 12 APR B 1958 Date