
    United States v. McClure.
    No. 2
    
      Chas. D. McAvoy, United States Attorney, Chet A. Keyes, Special Assistant Attorney General, and M. J. Stoney, Assistant United States Attorney, for United States.
    
      M. R. Turk, R. P. Lessey, J. B. Hannum, John E. McDonough, Chas Edwin Fox, Wm. T. Connor, John R. K. Scott and James Gay Gordon, for defendants.
    September 26, 1933
   Welsh, Dist. J.,

(orally). — I am going to pass on this motion now. There are two courses open for the court to take. One is action and silence, thereby being invulnerable at any subsequent stage of the proceedings. The other is action and an expression of opinion for the course I am about to pursue. Discretion, brought about by ultra-conservatism, would dictate the former course. Consideration of public welfare requires me to take the latter course, and no matter what the future may unfold I consider that it is my duty as a Federal judge at this time to state the reason for what I am about to do.

I have listened with a great deal of care to both gentlemen who have taken the floor on either side of this case. I regret exceedingly that anything of a political nature has been injected into this tribunal. I can say that with perfect propriety, because for 30 years prior to my ascension to the bench I was politically active. You all know that. But politics, no matter from what source it comes, must stop outside the courtroom here. When politics enters into a court of justice, or when prejudice of any kind enters into a court of justice, it ceases to become a court of justice. If I were convinced from all that I have heard that this case would be dragged from the plane upon which it now stands, a plane which has to do with the guilt or innocence of a group of men, down into the mire of a political abyss, I would without hesitation refuse to permit the trial to go on. I do not feel that way about it. Judge Gordon has said that he would like a jury drawn who would not be subject to the influence of any remarks by the Governor of the State. Now the court is going to take judicial notice of this fact. Perhaps that might not be the best way to express it. It might be better for the court to say that he personally anticipates that if the present Governor of the State should live after the first of the year, when this new panel that you indirectly referred to should be drawn, that this whole State will be plunged into a political maelstrom, and then it will be quite possible that there might be injected into this case the unfortunate element of politics. There are no State issues involved now, in which the Governor is directly concerned. This case was not listed for trial until after the recent primary election. The people have spoken at the polls, and those of us who watched the trend of affairs know just how much weight the people give and have given to certain things that you have described. The people have taken that upon themselves and their verdict at the polls controls the political situation. This court is not concerned with politics. The mere fact that the Governor of the State or that one or more newspapers or that one radio announcer has referred to the case does not warrant a Federal judge in granting a delay. You can not wonder, considering the magnitude of the case, that the people are watching. In this land in which we live, we expect to see the people on the alert and watching public servants. And this court has not the power, and would not use it if it could, to muzzle the press. This court can not and would not limit the right of speech over the radio, and this court can not and would not interfere with the privileged communication of the Governor of the State, addressed to the people, upon a matter considered by him to be of public importance.

This court can and should consider all the elements that the defendants’ counsel have referred to here, and if convinced that any injustice would be done, it would be a wise discretion to do everything within its power to prevent any harmful results taking place. But this court does not feel that such will be the case. The court will say, speaking for itself, that it has not seen these articles in the newspapers. It did not hear Boake Carter on the radio. The court is assuming that these articles are correct. The court did see the article in this morning’s paper. It has been stated by me previously from the bench that I received no letters. I do not care to have letters.

This appeal is directed to the court in the exercise of its discretion. I am going to try to exercise that discretion in accordance with the best light that the Lord gives me. I can assure counsel for the defendants that if this case comes on for trial in this room on Wednesday and I am to preside over it, every defendant, from top to bottom, high and low, will get .such treatment here as will cause him or her to go out of this courtroom feeling that this flag and eternal justice are synonymous and are one.

There are some of these defendants that I know. I want this to he said openly —there are some of these defendants that I know. I have lived in that community for 25 years for part of each year. It is not going to be an easy thing for a judge under circumstances of that kind to conduct a trial without some feeling of regret. But the oath of his office requires him to do things that are unpleasant as well as things that are pleasant. That duty seems to have devolved upon me. I do not want the defendants or counsel for the defendants to go out of this courtroom or come here on Wednesday next, if this case is to be tried then, and feel that Mr. McClure or Mr. White and all those other defendants will not be treated as fairly and as squarely as is possible in a court of justice. I want to assure you of that, and I do not want you to be at all perturbed over this case. I want you to feel that the court and justice are on trial.

This is a trying period in which we live. Cases of great moment must be tried speedily — not hurried when the trial commences. We never hurry cases in this courtroom, but since I have been on the bench I have let the bar know that these cases must be tried speedily, and this is no exception to the general rule. I cannot, for the reasons that I have stated, grant the motion that you have made. I have made that statement fairly and squarely because I want the community to know the reasons that actuate the court in its decision.  