The Presence of Evil

(See Cover)

The job fell to a Negro housewife. Last week in a federal courtroom, in a small firm voice, she uttered the sentence which cut off the head of the Communist Party in the U.S.

The morning sun fell on Manhattan's Foley Square, but the room in the skyscraper courthouse was cast in majestic gloom. The babbling of the spectators in the pewlike benches had stopped. Wary-eyed deputy marshals, their numbers reinforced, had ranged themselves around the crowded room, against its marble walls. Eleven bosses of the Communist Party, on trial for conspiring to teach and advocate the violent overthrow of the U.S. Government, now at the hour of reckoning, sat inside the rail behind their five lawyers. U.S. Attorney John F. X. McGohey, their unsmiling antagonist, rested his grey head on his hand.

Back of the bench a door opened and black-robed Judge Harold Medina, a firmly fleshed man with elegant mustaches, lifted eyebrows and large, melancholy eyes, appeared. He seated himself in his high-backed chair. Then the solemn jury of four men and eight women, who had been deliberating for almost seven hours, filed into the jury box, and the clerk of the court faced the housewife in the chair of Juror No. 1. She stood up. "How say you?" the clerk asked.

Almost nine months of relevant and irrelevant wrangling, of sneering and shouting by defense attorneys, of contradictory testimony from Reds, ex-Reds, agents of the FBI, of high excitement and vast boredom came to an end then in an instant of dead hush. Pretty Mrs. Thelma Dial, wife of a musician, foreman of the jury, looked straight in front of her and said: "We find each and every one of the defendants guilty."

Illegal Trial? So the climax came to what was probably the longest criminal trial in U.S. history. It had begun on Jan. 17. For the defense: 35 witnesses, 429 exhibits. For the Government: 15 witnesses, 332 exhibits. The record: 5,000,000 words of testimony covered 21,157 pages. The cost: to the defense, at least $250,000; to the Government, some $1,000,000.

But more imposing than the statistics was the fact that the case had only begun. It would be months before U.S. justice rendered its final verdict. Legal questions posed by the trial engaged lawyers, lawmakers, journalists. Far more would have to be decided than the fate of eleven sworn and cynical enemies of U.S. democracy. Enemies though they were, they had forced U.S. democracy to make a worried examination of itself. Men asked: Wasn't the very trial a violation of the basic rights of U.S. citizens?

The eleven Communists had been indicted and found guilty under the Smith Act. The law, passed by Congress in 1940, and never finally tested by the U.S. Supreme Court, made it a crime to teach or advocate the violent overthrow of the U.S. Government, or to conspire to commit such acts. There was no question of an overt act of violence; no revolution had actually been attempted. Had the activities of the eleven then constituted for the U.S. what Justice Holmes once characterized as "clear and present danger"? The defendants had merely plotted and planned, taught and preached. No matter how unpopular such activities, wasn't the law that forbade them an infringement of the First Amendment, an abridgment of the right of free speech?

Essence of Justice. The day before the verdict, Judge Harold Medina (rhymes with arena) had given the jury a long and careful charge. It was a model of lucidity, enlivened by the kind of homely advice which the astute Medina has made a legal stock in trade. "If you once get yourself in a frame of mind where you know that you have a task ahead and it has to be done carefully and it has to be done just right," he said, rocking gently back & forth beneath the Stars & Stripes and the Great Seal of the United States, "then there comes a certain calm and peace of mind which are the essence of the administration of justice."

With a certain personal peace of mind, after months of monumental calm in the face of harassing attack from the defense lawyers, the judge then described the essence of justice.

What had the prosecution tried to prove? The judge's summary of Prosecutor McGohey's case was a precis of the strategy of Red revolution:

The defendants had taught their followers to prepare for the coming of some crisis--a depression, perhaps a war with Russia. At that point the revolutionists would spring into action. Through strikes and sabotage, they would paralyze the industrial machine, bring about the violent overthrow of the Government, establish the dictatorship of the proletariat. Orders to follow such a course had come directly from Moscow, which maintained rigid discipline over its U.S. followers. The methods of the U.S.C.P. embraced lying, false swearing, secrecy (all characteristics of a conspiracy), and the whipping of aggrieved minorities into active resentment.

Whether clear and present danger could be shown or not, the fact of the matter was that the Reds intended to bring their plans to fruition "at the earliest time that circumstances would permit."

"Unmitigated Bunk." The judge continued to rock. He summarized the case for the defendants:

The prosecution's charges were "unmitigated bunk," a vicious libel. The Communists merely advocated socialism as the only valid answer to the abuses of fascist capitalism, the only way to peace, freedom and security. It was not Communism which taught violence, but the tottering capitalist class which advocated it in order to save itself. Communism advocated force only after a socialistic government had been peacefully set up--as a method of preventing a counterrevolution.

Said the court: "You can see how completely irreconcilable are the versions of the facts." As to who was telling the truth, he left that to the jury. That was, in the end, all that they had to decide.

A Matter of Law. He made it clear that despite the outcries of leftists, the Communist Party, as a political party, was not on trial. Only the eleven were on trial--eleven individuals charged with criminal conspiracy. The jury was not to try to decide whether the whole U.S. Communist Party was a criminal conspiracy; that question was not before it.

He delivered a relevant and illuminating dissertation on freedom of speech (see box). With a firm hand he cleared away the underbrush both of earnest theory and dishonest propaganda. Then he addressed himself to the "matter of law" which worried so many: Was the Smith Act constitutional? That, he said, was nothing the jury had to decide either. It had only to decide whether the defendants were guilty of violating the statute as he had interpreted it. In a legal aside loud enough for the Supreme Court to hear, he firmly declared that if the jury did find the eleven guilty, he found "sufficient danger of a substantive evil" in their activities to warrant the nation using the weapon of the Smith Act in self-defense.

What Judge Medina was also saying was that it was not necessary to show the existence of clear and present danger before the state took steps to protect itself. By that time it might be too late. It was enough to show that an evil thing existed, a thing which might, "at the earliest time that circumstances would permit," project disaster on the state. And to forestall such a possibility, Congress might indeed rightly put a limitation on what use a man might make of free speech.

On that Judge Medina confidently rested the validity of the trial, and instructed the jury to pass on the guilt or innocence of the defendants under the Smith Act.

A Miscellany. So pass they did. In the quiet moments which followed the barely audible, hugely formidable statement of Mrs. Thelma Dial, the eleven Communists heard their names called one by one, heard themselves tagged separately with their common crime.

They were a miscellany of ordinary-looking U.S. citizens, but they held all the key jobs in the U.S.C.P.: the bosses of the U.S. Politburo, directors of propaganda, agitation and organizing, national committeemen, state chairmen. They were: Eugene Dennis, their leader, hulking, petulant and soft-looking; Jacob Stachel, a heronlike man with a nervous facial tic; Ben Davis, New York City councilman, a lawyer with the dignified mien of a Negro preacher; mild-looking John Williamson; grey-faced, tight-lipped Robert Thompson, who won a D.S.C. fighting with the 32nd Division; Negro Henry Winston, towering and stolid; grim Irving Potash, vice president of the C.I.O. furriers' union; dull-faced Gus Hall; curly-haired, hard-faced Gilbert Green; pudgy Carl Winter; John Gates, nondescript-looking editor of the Daily Worker. Some of them had a miscellany of other names and aliases: Waldron, Zunser, Miller, Halberg, Weisberg, Greenberg, Regenstreif.

When they went to jail that afternoon to await sentence, only two members of the Politburo were left at large: aging William Z. Foster, a figurehead as national chairman, who had been indicted with the eleven but was too sick to stand trial; and Elizabeth Gurley Flynn, plump, motherly-looking, bustling bugle-blower in the Daily Worker. She bugled that the party would "operate as usual."

Unfinished Business. After the verdict Judge Medina dismissed the jury. Then he said quietly: "I have a little unfinished business to take up." He ordered the defendants' five lawyers and Dennis to stand up. They rose and faced the man whom they had goaded and defied hour after hour, day after day of the long trial. He had grimly refrained from citing them for contempt during the trial; otherwise it would have been interrupted and delayed interminably. Now at last the judge could act.

He charged: their behavior had been "deliberately entered into in a cold and calculating manner" to delay and confuse, cause a mistrial, impair his health. They had been disobedient, insulting, insolent and sarcastic. He meant to make an example of them in order to preserve the dignity of U.S. courts. He handed down his sentence:

For Defendant Dennis, who had acted as his own counsel, for Richard Gladstein, the defense's "brains," and for its gadfly, Harry Sacher--six months in jail; for George Crockett and lanky Abraham Isserman--four months; for white-haired Louis McCabe--30 days.

Said Sacher: "If it were necessary in the cause of liberty that I should have to serve six months' imprisonment, I consider the price very small." Medina retorted: "It is not the price of liberty but of misbehavior."

He heard the rest of their protestations and cleared the court. Outside the courthouse the diehards of a Communist brigade which had picketed the square since the trial's beginning stared sullenly as the jurors marched down the courthouse steps. Marshals handcuffed the eleven Reds and took them to the detention pen, where they would await sentencing this week (maximum: $10,000 fine, ten years in prison).

Judge Medina retired to his chambers to smoke his pipe and contemplate a more peaceful future.

The Indefatigable Man. Few judges could have better withstood the unique ordeal of the nine-months-long trial. Harold Medina has made a career of being busy. Today he is a robust 61; his only ailment is a misplaced vertebra (football injury) which he supports with a corset. He is a deep-chested, broad-shouldered, orderly man with tanned jowls and iron-grey hair, whose resemblance to Adolphe Menjou is only superficial.

He was born in Brooklyn, the son of Joaquin Medina, who was a Mexican descendant of the Spanish conquerors, and Elizabeth Fash, who was indomitable and Dutch and is now 91. The gentle Joaquin Medina, who died in 1932, made a modest income in the export business. Harold went to Public School 44, where he suffered during the Spanish-American War because his schoolmates gibed at him as a "greaser." From there he went to Holbrook's Military Academy in Ossining, N.Y., won prizes in English and French and was off to Princeton.

He wanted to make good. He was the indefatigable young man, but somehow he always fell just short of glory. He played freshman football, but a "big hyena jumped on me" and that was the end of his gridiron career. He was goalkeeper on the water polo team. He was captain of the fencing team, "but it was a lousy team and I was a lousy fencer." He wrote bad jokes for the Tiger. He was the only man in his class to raise a mustache, but he sadly recalls he was not a great social success. He graduated summa cum laude.

The Medina Cram Course. At Columbia Law School, unrelenting effort began to pay off. At the end of his second year he passed his bar examination, married Ethel Hillyer of East Orange, N.J., and set up housekeeping on a $1,500 gift from his father. When he graduated, Ethel, through a friend, got him a job as law clerk at $8 a week in the office of Manhattan Attorney Charles Tuttle. He supplemented that by teaching law at Columbia, and began his "cram courses" for bar examinations which were to become famous in New York legal circles. Nearly 40,000 law students have taken the Medina six-weeks lectures, which he ran until 1941. Medina came out of the self-training with one of the most all-inclusive legal minds in the country.

The indefatigable man meanwhile had been pursuing his own career as a practicing attorney. He left Tuttle's firm to go on his own. ("Anyone dropping a nickel near me was taking a chance.") He got into appeals work and until 1931 did nothing else. In the appellate division he argued 1,400 cases covering every imaginable kind of law from bastardy to bankruptcy. His first trial case was in 1931 when he defended young Herbert Singer, of the Bank of United States. He won Singer's freedom finally on an appeal. For the next 14 years, as a trial lawyer, he did not lose a single case.

He was assigned by the court to defend Anthony Cramer, charged with treason for helping Nazi agents who had been landed in the U.S. by U-boat. He lost in the lower courts, but won a reversal in the Supreme Court. The case cost him $800 and a lot of embarrassment. ("My friends wouldn't talk to me. I got spit on in the court.") By then he was making around $100,000 a year.

One of his secrets for financial success was not to tell his wife how much he was making. "Tell your wife how much money you make and that's how much you spend." By heeding his own warning, Attorney Medina had accumulated a comfortable fortune, built a fine summer home at Westhampton, N.Y., maintained a comfortable town apartment, sent his two sons, Harold Jr. and Standish, to Princeton and Columbia Law School, bought a 46-ft. cruiser and a string of sailboats, became an enthusiastic Princeton alumnus (class of '09) and had just about everything he wanted out of life. He had saved frugally for most of his working days. From 50 on he quit saving.

In 1947 he was made a federal judge, gave up his $100,000-a-year practice and went to work for $15,000 a year.

The Vegetable Life. When he was appointed to the Communist trial, he suspected what he was in for. He had studied the Washington sedition case of 1944 when the harassments of lawyers for the defense had exhausted Judge Edward C. Eicher, who died during the case, causing a mistrial. The well-ordered Judge Medina vowed that wouldn't happen to him.

He set for himself "the life of a vegetable": up at 6, breakfast, drive to the courthouse with one of his bodyguards (he was closely guarded throughout the trial), work over law books until time for court, lunch in his chambers on spinach and one lamb chop (never any variation), nap for half an hour, back to court, back to his chambers for an hour's more work, thence to the Crystal Health Club for a workout, shower and massage, home at 7:15 for two Martinis apiece for wife Ethel and himself, dinner and bed by 9:30.

He passed up all parties, the opera and the theater, refused to see his friends. He even gave up translating Latin, which is one of his hobbies. Only once did he come near to breaking during the trial--during the heat of late July. Then he left the court one day and lay down in an anteroom, a suddenly old and exhausted man who was almost convinced he would never be able to return to the grueling legal marathon into which he had been thrown.

But back he went, meticulously making the notes which were a guide to him through all the legal labyrinths of the trial and which, before he was through, filled a two-inch-thick notebook. In the end, the indefatigable man was able to present his long, cool and collected charge to the jury and then catch the lawyers for the defense flat-footed by sentencing them on the very next day. Said he afterward: "They didn't think I'd have the time to prepare the charges against them too."

He was not entirely through with the case yet. He still had to cast his melancholy eyes over briefs, listen to motions and arguments, hand out the sentences.

Target for the Week. In a week of Red tantrums after the verdict, Judge Medina became the target for every type of Communist attack and abuse. Paul Robeson vowed that he would get Medina impeached. The Soviet newspaper Pravda carried a cartoon of Uncle Sam swinging a bludgeon labeled "Medina."

These were matters of small concern to the judge. Actually no one could have had a fairer trial than the one he had given the eleven Reds. Their resentment sprang from the fact that he had demonstrated a way to deal legally with the Communist Party in the U.S. The nation's highest courts would have to decide whether Medina's interpretation of the law was also constitutional.

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