The Jencks Case

Clinton E. Jencks, Southwestern official of the Red-led Mine, Mill & Smelter Workers, would probably be surprised if anyone seriously accused him of being a nonCommunist. But in 1950 Jencks signed a non-Communist affidavit under the Taft-Hartley law--and was duly indicted in El Paso, convicted of perjury and sentenced to five years in prison. Last week the Supreme Court granted a new trial to Defendant Jencks, and in so doing knocked over applecarts all across the U.S. security scene.

Key witnesses at the Jencks perjury trial were paid FBI Informers J. W. Ford and Harvey Matusow, who testified that they had known Jencks as a party member. Both admitted that they had reported on Jencks's activities at the time in statements to the FBI. At the trial, in 1954, Matusow admitted: "I don't recall what I put into my reports two or three years ago, written or oral." Later (as Justice Brennan, writing for the Supreme Court majority, noted last week) the notorious Matusow recanted his testimony about Jencks. Obviously then, the original Ford-Matusow reports to the FBI may have provided material for discrediting their trial testimony--and the defense right to such evidence is generally recognized.

Wheat & Chaff. But raw FBI reports, in the words of Director J. Edgar Hoover, may "allege crimes of a most despicable type, and the truth or falsity of these charges may not emerge until several reports are studied, further investigation made and the wheat separated from the chaff." The usual court practice has therefore been for the trial judge to screen the reports as to their relevance and competence before turning them over to the defense for use in crossexamination. The judge-as-screener procedure was what the Jencks defense asked at the trial. Government attorneys were willing to go along. But District Court Judge Robert E. Thomason refused, without giving his reasons.

In its appeal to the Supreme Court, the Jencks defense asked a new trial in which, specifically, Judge Thomason would be required to act as screener. It was this specific appeal that the Government argued against. In the legal point and counterpoint, the idea never came up of turning the FBI files over to the defense directly. But this was precisely the idea that the Supreme Court turned into a rule of law. Wrote Justice Brennan, with Chief Justice Warren, Justices Black, Douglas and Frankfurter concurring: "Because only the defense is adequately equipped to determine the effective use [of reports] for the purpose of discrediting the Government's witness and thereby furthering the accused's defense, the defense must initially be entitled to see them to determine what use may be made of them. Justice requires no less."

Concluded the majority: "The burden is the Government's, not to be shifted to the trial judge, to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure of state secrets and other confidential information . . ."

Concurrence & Dissent. Justices Burton and Harlan concurred in ordering a new trial for Jencks, but only on the ground that Trial Judge Thomason had erred in his definition of Communist Party membership to the jury. But, wrote Burton, the old judge-as-screener rule "respects the interests of justice by permitting an accused to receive all information necessary to his defense." And the court majority "goes beyond the request of [Jencks] that reports be produced for examination by the trial court and, in effect, seems to hold that the Government waives any privileges it may have with respect to documents in its possession . . ."

Former U.S. Attorney General Tom Clark, the court's lone all-out dissenter, criticized the majority opinion in unusually strong language. Government law-enforcement agencies, said he, might as well "close up shop, for the court has opened their files to the criminal and thus afforded him a Roman holiday for rummaging through confidential information as well as vital national secrets."

Stop & Go. Although the air around the Justice Department was heavy with the comments of FBI Director Hoover, Government lawyers were not convinced that things were as bad as either Clark or Hoover thought they were. They were merely confused, because, for one reason, the Supreme Court had given the Government no opportunity to argue against or prepare for its sweeping decision.

The confusion caused by the Jencks decision was reflected by week's end in two other cases. In a Rome (Ga.) rape trial (which came under federal jurisdiction because the alleged crime took place in a national park), the U.S. turned over to the defense presumably relevant excerpts from witnesses' pre-trial statements to the FBI. But in an Erie, Pa. antitrust action, the Government tried for much the same solution--and was ordered by the trial judge to hand over its complete reports, kit and caboodle. Result: the U.S. canceled the appearance of three FBI agents as witnesses.

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