by Howard Fast
“I’d like to get to the Negro—the big, heavy-set one.”
“Let me talk to the judge again. It breaks up the day.”
MacAllister went up to the bench and the government attorney immediately joined him.
“What is it now, Mr. MacAllister?” the judge asked, patiently and courteously. The judge was courteous and polite. MacAllister had never dealt with such a polite judge.
“Simply the question of government employees, Your Honor. The entire panel is composed of government employees.”
“Not entirely, Mr. MacAllister.”
“We haven’t come to an exception yet. It stands to reason that we cannot get unbiased judgment from people who work for the prosecution.”
“Come, come, Mr. MacAllister—you’re not stating the case fairly at all. These people don’t work for Mr. Ward. They work for the government of the United States, and I am sure they’re as anxious to see justice rendered as if they worked in the corner grocery store. You’re not intimating that there will not be a fair trial in my courtroom?”
“By no means, Your Honor.”
“What have you to say, Mr. Ward?”
“I resent the entire implication, Your Honor, that people are unable to render a fair verdict because they work for some government agency. I should think Mr. MacAllister would be conscious of the privilege attached to such work and the integrity required of people who do such work.”
“It is also required that they reside in the District of Columbia,” MacAllister said.
“What do you mean by that, Mr. MacAllister?”
“I mean that it is not a question of integrity, Your Honor, but a question of a community of government workers who depend on government work for their existence.”
“In other words, you are suggesting that reprisal would follow a verdict of not guilty. I find such a suggestion highly improper, Mr. MacAllister—highly improper, and I am rather shocked that you should voice it. Your client is accused of committing a crime in this district and he will be tried in this district, and he will be judged by a jury of his peers from this district.”
“Yes, Your Honor.”
The examination of the jury panel went on. They called the Negro Silas had mentioned, and the government attorney said to him,
“Where are you employed?”
“I have my own business.”
“And what is your business?”
The Negro looked Mr. Ward up and down coolly, and said, “I am an undertaker.”
“Challenged for cause,” Mr. Ward said.
* * *
“What is this defendant, Mr. Silas Timberman, being charged with?” the government attorney asked the jury, beginning his opening remarks, taking his stance squarely and purposefully in front of the jury box, his face serious, his brow furrowed with the weight of the problem confronting him. “He is being charged with perjury, with deliberate falsification of statements under oath. Let me lay the scene for you and spell out the facts of the indictment in this case. On the 14th of November: of last year, a hearing of the Senate Committee on Internal Expenditures was held in the Senate Office Building, in Washington, D.C. I am sure you are aware that the privilege of investigation is a very ancient privilege, a very ancient function of the legislative branch of our government. Each of the Houses of Congress is sub-divided into a number of committees. These committees investigate various areas of our national life, so that they may gather proper information upon which to base the framing of new legislation. So deeply is this investigative role of committees imbedded in our legislative life, that one might say that without this function there could be no government as we know government.
“This particular hearing with which we are concerned was held to explore the manner in which certain privately endowed universities used government grants—grants which supported a number of varied efforts of such universities. Such an investigation would have as its ultimate purpose the gathering of information, either to support existing legislation and appropriations, or to revise both the legislation and the appropriations. And in the course of this investigation, Mr. Silas Timberman, the defendant, was called as a witness before the Senate Committee and asked to testify to certain facts.
“The indictment specifies two occasions when the witness, Mr. Timberman, gave answers in direct contradiction to testimony of a subsequent witness. When the facts were brought before a grand jury, it was decided to bring in an indictment for perjury against the present defendant, Mr. Timberman.
“Let me detail these two instances, so that you may be able to relate them to subsequent testimony at this trial. In the first case, a question was asked by Senator Brannigan, namely, and I quote from the record, ‘Are you a member of the Communist Party, Professor Timberman?’ to which the defendant answered, ‘I am not a member of the Communist Party, Senator. I am not, and I never have been.’
“On this, holding it to be a false statement, the first count of the indictment was based. A little later in the hearing, the defendant was asked, again by Senator Brannigan, and again I am reading from the record of the hearing, ‘Do you attend communist meetings at Clemington, Professor?’ And in answer to this, under oath as before, Mr. Timberman replied, ‘I do not attend communist meetings anywhere.’
“These are the two counts of perjury which the indictment specifies. Of course, the indictment is no proof of guilt. The burden of proof rests upon the government—and, indeed, we shall demonstrate that both of these counts are provable. This is our task—and this we propose to do. But before I conclude, I think a few words on the question of perjury are in order.
“A perjury case,” Mr. Ward continued, “is never simply a question of who lied, and the severe punishment which the law provides for perjury would be vengeful rather than just if this were the only purpose for perjury inquiries. However, it is precisely because we do not have government by vengeance, but rather government by the consent of those governed, and thereby a system of legislation by broad and complete inquiry into the facts, balanced by jurisprudence with due process of law, that the question of perjury becomes so important.
“No committee of government could examine the facts of any situation, if they could be resisted by the insolence or the purposeful confusion of a liar. Nor could any court of law function unless it had a firm tool whereby to enforce the truth. Truth is the basis of the government of free men in the free world, and it is only through the deepest concern for truth that such government can survive.
“It shall be our purpose to prove that the defendant in this case deliberately and purposefully committed the crime of perjury. We shall prove that he knew the consequences of his crime—and executed it deliberately. We shall show that this perjury, with malice and intent, was calculated to bring into disrepute one of the most basic and precious functions of government—and to give aid and comfort to an organization convicted in the courts of this land of plotting to overthrow the government by force and violence. We shall show that this perjury was intended to prevent the lawful functioning of an investigative committee of the United States Senate.…”
Could he do this, Silas wanted to know? Could he put it this way? And what on earth did a peroration of this sort have to do with what actually had happened at the hearing?
“He can do pretty much as he pleases in the opening,” MacAllister nodded. “I could object, but that won’t help. If we lick him, we’ll lick him in examination. Let him say his piece.”
It was not that he said it well, Silas thought, but that he was laying his facts against a familiar background, and all that he said, the newspapers had been saying for years now. It was almost possible for Silas to fall into the quantitative persuasion of his points; and in all truth, Silas was by no means certain that six months ago, reading of this in the newspapers, he would not have passively agreed with most of it or all of it. Given a premise, the rest was easy; given the proper premise, the rest seemed sensible, logical, matter-of-fact—
He had started a l
etter to Myra, writing it in court, a paragraph here and a paragraph there, his own record of what transpired. “The difficult thing,” he wrote, “is to accept the fact that this is happening, that you are on trial in a criminal court of the United States. When you have done that—and I think that by now I have—you find yourself fascinated by the intricate and formal procedure, a sort of ritualistic ceremony, laid down long, long ago, for which lawyers study as people do for a priesthood. But to do this, I must stifle the impulse to cry out that my being here is ridiculous, that I have done nothing, and that we are wasting the time and the money of the people of this country. There, the child returns, and I find myself thinking that if I shouted loud enough, insistently enough, they would all accept the statements I make. So it goes. Why do we grow up so hard? Is it because we have been sheltered so, coddled so, protected so? What a lot I learn!”
And again he wrote, “The process of learning goes on. Take MacAllister. He is quite remarkable, this fat little man who waddles like a duck and looks so child-like and innocent—and of course I under-estimated him. Under-estimation seems to be one of my major failings. When he steps into court, something happens to him. This is his arena, his battle ground. I think of a dancer, even though the motion is not physical. Or should I say a boxer? He weaves, he parries, he minces, he leaps—and he hits when you least expect it. I am beginning to know the man, and I knew so little of men.…”
MacAllister was quite brief in his opening. “Perjury,” he said, “is one of the most difficult points of law to establish. It depends, usually, on the word of one man as against another. My client did not commit perjury. He had no cause, no reason to lie in the testimony he gave before a committee of the United States Senate. He told the truth, simply and directly—and thereby we face the question of whether, today, in these United States, a man can tell the truth, secure in the knowledge that he lives in a society where the truth is venerated and the truthful man is honored and protected—or whether a penalty is to be exacted from men, whether or not they are truthful, because they have demonstrated courage and forthrightness.
“We are not here only to try the case of Silas Timberman; we are here to probe to the deepest foundations of American democracy, and to see how secure and steadfast those foundations are. For while this is a very simple case in one way, it is a most complex case in another. It is simple in terms of the actions of one man, this man on trial, Silas Timberman, who was asked certain questions and who answered those questions directly and truthfully; yet it is complex in terms of its enormous implications. Therefore, ladies and gentlemen of the jury, I shall have to demonstrate that this is not only a question of truth and falsehood—but also a question of whether precious and ancient freedoms remain with us and are to remain with us, the freedoms of thought, of inquiry, of speech—the freedom to associate and assemble. And I intend to demonstrate this in proving, beyond doubt, that my client is innocent of any perjury—that he is a person of honor and truthfulness.…”
* * *
The government’s case began, on the second day of the trial, in much the manner that MacAllister had predicted. After motions to dismiss were denied, the United States marshal, who had served the subpoena for the original hearing, was put on the stand to identify the subpoena and to swear that he had made service. Then Dave Cann was called, and he further established the facts and circumstances of the hearing. He was shown the printed record of the senate hearing and asked to identify it, and when he had done so, Mr. Ward moved that the record be read aloud to the jury. The judge asked MacAllister whether he had an objection to this, and MacAllister said, no, he had no objection to this procedure. The record was read, from the point where Silas was called to the witness stand until he was ejected by the United States marshals.
Then Ward turned the witness over to MacAllister, who stationed himself at the end of the jury box, and asked his questions casually, easily.
“One of your functions with the Committee on Internal Expenditures is to draw up the subpoenas, is it not, Mr. Cann?”
“In some cases.”
“In the case of Professor Timberman?”
“Yes, in that case.”
“That was one of a group of subpoenas served on faculty members at Clemington University, was it not?”
“It was.”
“And how many subpoenas were served to faculty members at Clemington?”
At this point, Mr. Ward objected, and the judge asked him what his objection was based upon.
“This is not valid cross-examination. The other subpoenas were not introduced into the testimony of the witness.”
“My point is,” MacAllister said, “that the subpoenas were served together, pursuant to the same matter. A group of people came to the hearing as witnesses. Since the witness testified to the hearing, certainly the cross-examination can include the other witnesses at the senate hearing.”
“I think that might be allowed,” said the judge.
“I must object to it, Your Honor. I do not think it can be allowed. The other subpoenas have no part in Mr. Cann’s testimony.”
“I will sustain that objection. Surely, Mr. MacAllister,” he said gently, “you are well enough acquainted with courtroom procedure to know the practice of cross-examination?”
MacAllister stared at the judge incredulously. Within a matter of thirty seconds, the man had denied and then sustained the same objection, bowing simply and not even subtly to the insistence of the government attorney. MacAllister drew a deep breath, licked his lips, and said quietly.
“No other questions.”
He returned to his seat, opened his portfolio, and slowly, almost painfully slow in each action, began to sort out papers. Silas asked him,
“Is that customary?”
“What?”
“For the judge to bow to the insistence of the government?”
“Apparently it is—here.”
“And you don’t feel it would do any good to try to question Cann?”
“I’m afraid not,” MacAllister shrugged. “I wanted to make a point about Bob Allen, but I wouldn’t make the point. I’d only be placed in a position of total frustration—and that won’t help. We’ll play it slow, Silas, and simple and straight. They haven’t shown their hand yet—and I don’t think they have much of a hand to show.”
Yet the next witness surprised both Silas and MacAllister. Ed Lundfest was called to the stand. Serious and impressive, he entered the court with the slow deliberation of a man wholly conscious of the responsibility he bore. He made a fine figure in a brown sharkskin suit, white shirt, plain blue tie, and around his neck on a black ribbon, a pair of pince-nez Silas had never seen him wear before. He took the stand without apparent pleasure, was sworn in, and then proceeded to answer Ward’s background questions. From there, the questioning proceeded to the matter of civil defense at Clemington, which the government attorney, with Lundfest’s reluctant yet cooperative help, began to build into a full-fledged case of treason, if not by action, certainly by implication. MacAllister objected on the grounds that the matter was extraneous to the issue at hand. “I will link it up,” Ward said, and the judge over-ruled the objection. Ward continued—and MacAllister objected, and the judge over-ruled him again and again. Silas found himself gripping MacAllister’s arm, and the little lawyer whispered, “Easy, easy, son. We’ll get our licks in.” But when Ward asked,
“Do you believe Professor Timberman to be a communist?” MacAllister bounced to his feet and threw in his objection with anger and without restraint.
“What the witness believes is not evidence, Your Honor—not even hearsay!”
The judge nodded and told Mr. Ward that he felt he must sustain the objection. Could Mr. Ward re-phrase the question?
“Yet I intend to establish a foundation for such a belief, Your Honor. A foundation in fact.”
“I am afraid you will have to establish the facts first,” the judge said.
“Very well. Professor Lundfest, to
your knowledge, is Professor Timberman a communist?”
“Yes—he is,” Lundfest answered regretfully.
“Upon what do you base your statement?”
“Upon information I have received and upon direct evidence to which I have been witness.”
MacAllister objected. “Again we are dealing with hearsay—with the most amorphous type of hearsay!” The judge called both lawyers to the bench, shaking his head gently—and MacAllister wondered whether this was a trial or some incredible and new type of circus? Had Ward ever tried a case before, studied law, examined any of the rules of evidence? The judge was compassionate and gentle. “I’m sorry, Mr. Ward,” he whispered. They were all whispering. “I am attempting to lay a foundation,” Ward said. “Really, your Honor, these constant objections make a farce out of this.” “That’s a little harsh, Mr. Ward. You cannot build from opinions. You must lead your questioning along a path of facts. Yet, Mr. MacAllister, I cannot see that these constant objections improve your case. Let Mr. Ward establish his position, and then you have your turn at cross-examination.” “If I say what I am thinking,” MacAllister told himself, “I’ll be thrown to hell out of here. God damn him to hell, he’s trying to teach this fool how to try a case!” “You do see my point, Mr. MacAllister?” the judge asked, and MacAllister replied, “I am trying to defend a client, sir. I must object to a path of questioning which is inadmissible.” “This I must judge, Mr. MacAllister. You will have a fair trial here, I assure you.”
They returned to their places. Grim yet boyish, Mr. Ward said, “Let me re-phrase my last question, Professor Lundfest. You have stated that Professor Timberman is a communist. What actual evidence of this do you have?”
“A number of things, cases, actions. He is opposed to the war in Korea—and has so stated in my presence. This is the communist position—” MacAllister objected, and was over-ruled. “He is opposed to civil defense. This also is the communist position. At various times, he has attempted to persuade me to accept a communist position concerning some point in question.”
