From the Palmer Raids to the Bridgman Raid, part 3

by Patrick E. Mears, Barnes & Thornburg, LLP, with assistance from Stan Rubins

This is a continuation of the article begun in The Grand Rapids Legal News for Dec. 30, 2011, reprinted from the Winter 2010 issue of the Stereoscope, The Journal of the Historical Society of the United States District Court for the Western District of Michigan. It is used by permission of the author. For further acknowledgments, please see that issue.

The Fruits of the Bridgman Raid: Trials of Foster and Ruthenberg William Z. Foster’s Trial and Hung Jury

The Bridgman Raid was reported in the St. Joseph Herald Press on August 22, 1922, listing the names of those arrested and announcing that 60 other attendees “including William Z. Foster, chief of all radicals of America, and two personal representatives of Nicolai [sic] Lenin, Bolshevik premier, escaped in automobiles early this morning while the raid was being planned.”67 The article stated that the raid had been planned by William J. Burns, chief of the United States Secret Service.68  Four agents of the “Bureau of Investigation of the Department of Justice,” viz., Jacob Spolansky, E.C. Shanahan, Maurice Wolff, and Louis Loebl, were accompanied by Berrien County Sheriff George C. Bridgman and 21 deputes in the raid.37

Two persons arrested in the raid, Norman H.Tallenfire and Alex Ball, were foreign citizens and thereafter deported.70 William Z. Foster was arrested in Chicago on August 23, 1922. Among all the attendees of the Bridgman Convention, Foster was clearly “the Big Enchilada.” He had organized and coordinated a national strike by steelworkers from August 1919 through January 1920, when it was called off. In 1921, at the invitation of Earl Browder and as head of TUEL, Foster attended a conference in Moscow of the Profintern. Upon returning to the United States, Foster joined the CPUSA.71 Foster was the first of the Bridgman convention attendees to be tried by the State of Michigan in Berrien County Circuit Court, [beginning] March 12, 1923.

Foster was charged by the state of Michigan for violating its recently enacted Criminal Syndicalism Law, Act. No. 255, Public Acts 1919. This statute made it a felony punishable by imprisonment for a maximum of ten years or a $5,000 fine, or both, to take certain actions involving “criminal syndicalism,” which was defined in Section 1 of the act as “the doctrine which advocates crime, sabotage, violence or other unlawful methods of terrorism as a means of accomplishing industrial or political reform.” Among the acts prohibited by the statute was the voluntary assembly with “any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”

William Z. Foster’s legal defense team consisted of three lawyers: Francis P. Walsh of San Francisco, Humphrey S. Gray of Benton Harbor, Michigan, and Isaac E. Ferguson of Chicago. Walsh was born in St. Louis, Missouri in 1864 and in 1913 was nominated by President Woodrow Wilson to chair the Commission on Industrial Relations; he held that position through 1918. Also that same year, Walsh was named co-chairperson with former President William Howard Taft of the National War Labor Board.72  Humphrey S. Gray was a prominent attorney in Berrien County with offices in Benton Harbor and was described by Foster as “one of the richest men in the entire community, a banker, a capitalist, a prominent churchman and an able lawyer.”73 Finally, Isaac E. Ferguson, a Chicago lawyer and close associate of Charles E. Ruthenberg, rounded out Foster’s legal team.

The prosecution consisted also of three lawyers: Assistant Attorney General Ora Lynn Smith,74 Berrien County Prosecutor Charles W. Gore, and Assistant U.S. Attorney Max F. Berger. The judge assigned to try the case was Circuit Court Judge Charles E. White, who had been raised on a farm in Cass Co., MI, had graduated from The University of Michigan Law School in 1897, had been a Republican member of the Michigan State Senate from Berrien Co. from 1909 to 1912, and was selected as a delegate to the Republican National Convention in 1912. Judge White served as Circuit Judge in Berrien County from 1918 to 1935, when he was defeated for reelection.

The first skirmish in Foster’s trial took place over the defendant’s motion to change venue of the trial filed on March 2, 1923.75 The motion asserted that the climate in Berrien County was highly prejudiced against Foster on account of “widespread and sensational publicity” such that Foster could not be granted a fair trial.76  The motion was supported by the affidavits of Foster; Humphrey Gray, a local Presbyterian pastor; a former Berrien County sheriff; and other citizens.77 The prosecution countered with its own affidavits disputing Foster’s claims and after a hearing, Judge White denied the motion.78

Jury selection for Foster’s trial was, like the trial to come, a contest between political ideologies. The selection procedure began on March 12, 1923, and was completed three days later. Foster described the process as follows:

Attorneys Walsh and Gray did yeoman educational work in the selection of the jury. Their questions to the prospective jurors constituted a liberal course in civil rights, political history, economics, governmental structure, and a host of other vital matters. By a careful probing the jurors were instructed in the nature of the dictatorship of the proletariat, clearly ex-
plained as the rule of the workers and farmers, and made to understand its workings. The Soviet form of government came in for detailed exposition, care being used to bring out the fact that under it only producers, hand and brain, are allowed to vote. ... Our attorneys laid especial stress upon the right of revolution always inherent in every people, calling to their aid the Declaration of Independence to make the proposition clear.79

William Z. Foster’s trial opened on March 15, 1923, in the old Berrien County Courthouse, now demolished, in St. Joseph. The jury that was selected consisted of nine farmers, one grocery clerk, one railroad flagman, and the wife of a factory superintendent, Mrs. Minerva Olson... In his opening statement to the jury, Assistant Attorney General O.L. Smith argued that “Foster was a paid organizer in the ranks of the Communists and that the Communist Party [was] committed to violent and incendiary doctrines.”80 In contrast, Frank Walsh advised the jury that Foster attended the [Bridgman] convention, not as a Communist, but as a fraternal delegate from Illinois. He charged that a secret service operative in the employ of the United States had succeeded in joining the Communist organization and was responsible for any violent statements attributed to the defendants. The party convention, on which the raid was made... was called for the purpose of abolishing underground tactics in favor of coming out into the open as a legal group.81

The “secret service operative” mentioned by Walsh was Francis A. Morrow, “a short, slight man ... Not quite forty years old, he seemed prematurely middle-aged...”82 [He] resided in Camden, NJ, and worked as a ship fitter there.83 Francis Morrow was a member of the CPUSA whose nom de guerre was “Day,” but he was, in reality, a double agent for the U.S. government charged with infiltrating the Communists’ ranks.84 Foster had some choice words for Morrow...:
Morrow is a typical specimen of the spies that are infesting every branch of the labor movement. ... In 1919 he became a ‘dick,’ joining the Socialist Party at $60.00 per month to spy on them. In 1920, he joined the Communist Party, still being paid $60.00. After the raid...he was promoted ... and is now paid the standard rate of $5.00 per day. Thus diligent sneakery is recognized and rewarded.85

The star witness for the prosecution was the double agent Francis Morrow, who, upon being sworn in, described his occupation as a “federal employee.”86 Morrow testified that he had seen Foster at the convention. Morrow identified a number of documents seized in the raid for admission into evidence.87 Morrow testified that Foster told the convention that the SPA
...had failed because it had not developed a sound trade union policy. that the Communists were not making this mistake but had adopted the policy of working within the trade unions to strengthen them and develop them into militant working class organizations.88 On March 24, 1923, Walsh called Charles ruthenberg to stand as the defense’s first witness. Ruthenberg identified himself as the executive Secretary of the Communist Party of America. Ruthenberg’s testimony primarily consisted of the principles of Marxism-Leninism and how they would apply to the United States of American in the 1920s. He stated that the use of force in America
...would be nonsense. In the United States the Communist International is urging the formation of a Labor Party b the great masses of workers and farmers to fight their political battles ad the amalgamation of the craft unions into industrial unions.89

On March 28, 1923, Ruthenberg concluded his testimony in a lively exchange with County Prosecutor Gore over the extent of power that capitalism has in a court of law:
‘You believe this is a capitalist jury, do you not?’ asked Prosecution attorney Gore of C.E. Ruthenberg.... [T]he Prosecutor was surprised when Ruthenberg answered, ‘The Jury? That is a different matter.’ [Ruthenberg explained] how it was possible for a jury, even in a capitalist court, to return verdicts in the interest of the workers instead of the capitalists, if the jury contained workers or working farmers who were not dominated by capitalist ideas or capitalist authority.90

On March 29, 1923, the defense called its second and last witness, William Z. Foster, to testify on his own behalf. He testified about how he was invited to attend the Bridgman Convention two days before it began by Earl Browder, that he was not a member of any political party, and that TUEL was not affiliated with any party—that it was “an autonomous body, comprising trade unionists of all parties and no parties.”91 Foster also testified that he had “urged the Communists to join [TUEL] and become active members in it.”92 On March 31, Foster completed his testimony by affirming on cross examination that there could never be “harmony between Capital and Labor until the workers own the capital and the capitalists go to work and do useful labor.”93 With this testimony, both sides rested, and the court was adjourned.

On April 3, 1923, the prosecution and the defense gave their closing arguments to the jury, and Judge White instructed the jury on the law of the case.94 The jury deliberated for 31 hours and took 36 ballots but remained deadlocked at six votes to acquit and six votes to convict.95 Upon being so advised, judge White discharged the jury, and Foster was freed. It was later discovered that the only woman juror, Mrs. Minerva Olson, had led the forces urging acquittal. She explained the deadlock in the St. Joseph Herald Press the day after the trial ended:

Too much evidence, and yet not enough evidence I would say, was the reason for the jury disagreeing in the Foster trial. We were just swamped with words, words, words. We were lectured and read to for hours on Communism. We learned from the prosecution’s side what Communism has been from 1847 down to the present day. But we seemed to get little evidence having a direct bearing on the case. That, coupled with the fact that the stage setting of the prosecution seemed overplayed with such display of detectives and undercover men that it appeared more like a case of trying to ‘railroad’ Foster than prosecute him. I could look away from the courtroom as the trial went on and see conflicting forces fighting for mastery of human rights. This trial was far bigger for me than merely determining whether Mr. Foster were [sic] guilty or not guilty of taking part in the Bridgman Communist convention.96

To be concluded in the Jan. 11 issue.

Endnotes: Editor’s note: Some of these endnotes have been abridged, as noted.
67St. Joseph Herald Press, p. 1, col. 1, August 22, 1922.   68Id.    69Id.
70St. Joseph Herald Press, p. 1, col. 1, August 23, 1922.
P_Walsh. Walsh was also an Irish Nationalist who chaired the American Commission on Irish Independence, advocating early American recognition of the newly proclaimed Irish Republic. Id. ... Julie E.Manning, Frank P. Walsh and the Irish Question, http://www.openlibrary,org/b/OL2213985M. Walsh was also active in providing legal aid to the American labor movement... http://www.
73William Z. Foster, “On Trial in Michigan,” The Labor Herald, Volume 2, Number 3 at pp. 2-3 (May 1923) (hereinafter, “On Trial in Michigan”).
74Ora lynn Smith was born in Union City, ... MI [in] 1879. Smith was prosecutor o Gratiot County from 1914 to 1921 and was Untied State Attorney for the Eastern District of Michigan from 1927 to 1928. Smith ... is buried in, of all places, Moscow, MI. A reporter for The New York Times covering the Foster trial compared and contrasted Smith with his adversary, Frank Walsh:
“They are both tall, heavily built, powerful men. Walsh, the man from the city, has a ruddy complexion, while the country-bred Smith, paradoxically, is pale with a rounded face ...
“The contrast between their careers is the difference between the men. Whereas Mr. Walsh is known all over the country for his frequent appearance as counsel to radicals,.. Mr. Smith’s fame as the star prosecutor in the Michigan Attorney General's office has not spread outside the State.”
The New York Times, April 4, 1923, p. 2, col. 1
75St. Joseph Herald Press, March 2, 1923, p. 1, col. 2.
76Id.   77Id.
78Benton Harbor News-Palladium, March 6, 1923, p. 1, col. 8; Benton Harbor News-Palladium, March 10, 1923, p. 1, col. 8.
79On Trial in Michigan, p. 6; Robert Minor, “The Trial of William Z. Foster,” The Liberator, Vol. 6, No. 4, pp. 8-12 (April 1923); Benton Harbor News Palladium, March 13, 1923, p. 1, col. 1.
80Time magazine, “Radicals: Militant Communists,” May 23, 1923,,9171,726961,00.html; New York Times, March 16, 1923, p. 1, col. 1.
81Id.   82Draper, p. 366.   83Id.  84Id.   85On Trial in Michigan, p. 6.
86WPA Press Reports, p. 4. The descriptions of the day-to-day events of the Foster trial are contained in WPA Press Service reports edited by Tim Davenport, 1000 Flowers Publishing of Cowallis, Oregon, a copy of which is in possession of the author. This summary is hereinafter referred to as the “WPA Press Reports.”
87WPA Press Reports, pp.5-7.
88Id. at p. 6. 89Id. at p. 9. 90Id. at pp. 12-13. 91Id. at p. 14. 92Id. at p. 15. 93Id. at p. 6.
94Id. at p. 18; On Trial in Michigan, p. 25; New York Times, April 4, 1923, p. 1, col. 6   95New York Times, April 4, 1923, p. 1, col. 7
96On Trial in Michigan, p. 27; New York Times, April 6, 1923, p. 1, col. 6