Hassle at Halftime

The whole thing was over before a Marxist could say monarcho-fascist-devia-tionist. One afternoon last week, U.S. Attorney John F. X. McGohey got to his feet in Manhattan Federal Court and announced unexpectedly: "The Government rests." It had completed the main body of its case against the eleven top U.S. Communists who are charged with conspiracy to advocate violent overthrow of the Government.

Long-suffering Federal Judge Harold R. Medina spoke up as soon as the prosecutor sat down: the Government had presented such a strong prima facie case that he would hear only limited argument on defense motions. He added that an hour would probably be ample. The five defense attorneys scrambled to their feet and went into an outraged act which would have done credit to a pond full of Donald Ducks. They danced, shouted and demanded a week's time to prepare briefs. One attorney made 13 separate motions. Defendant Eugene Dennis (who is acting as his own attorney) railed against the court's "outrageous and arbitrary ruling" and bawled "frame-up" and "mockery of justice."

Judge Medina commented that he supposed Dennis' protests stemmed from his unfamiliarity with the law. But after an hour--during which he was once forced to leave the bench to quiet the uproar--Medina consented to listen to a motion for acquittal based on whether the Justice Holmes doctrine of "clear and present danger" applied to the case (see above). Next day Defense Attorney Abraham J. Isserman argued, in effect, that the defendants were being denied "the right to engage in political activity."

Said Medina: "If [the defendants] merely got together ... to urge . . . people by peaceful means to change the laws so as to bring about a socialistic society I would say, yes, that was something it was clearly their right to do ... You are knocking down a man of straw here . . . It did not seem to me that all these witnesses were talking about peaceful things." Isserman contended that a "clear and present danger" from their activities would have to be shown. Did he mean, asked Judge Medina, that the Government had to prove a clear and present danger of the immediate overthrow of the Government?

"That is correct," said Isserman.

"Well, that being so," said the judge, "it seems to me it reduces itself to an absurdity because on that theory you couldn't punish anybody for such a conspiracy unless the Government was just about to be overthrown, and then it would be too late."

This week Judge Medina denied all motions for acquittal and mistrial, and ordered the defense to begin its case.

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