From the Palmer Raids to the Bridgman Raid, part 4

This is the conclusion of the article begun in  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. Used by permission of the author. For further acknowledgments, please see that issue.
Editor’s Note: In the interest of space, this part contains deletions of non-substantive material (marked by “...”) and some  abbreviations (U.S. for United States, for example).

(Part 4 picks up as William Z. Foster, first of the defendants in the Bridgman Raid trials, was found not guilty.)

Both Frank Walsh and Humphrey Gray were magnanimous in their victory, complimenting their adversaries, the judge, and the jury. Gray stated that he was “eminently pleased with the fairness displayed by the court. Foster had a fair trial.”97  The Benton Harbor News-Palladium, in the same story, heaped praise upon Walsh. “Attorney Walsh is ... nationally known.
During the war he served on the labor board with Ex-President Taft. ... He’s an Irishman with all the eloquence and brilliance of mind that makes men of attainment of that race. He was one of the American commission that investigated conditions in Ireland ... and in his argument to the ... jury he touched upon Ireland’s wrongs in a fashion that gripped all who heard him.’98

Ruthenberg’s Trial and Conviction
Charles Ruthenberg’s trial began on April 16, 1923...99  Ruthenberg pleaded not guilty to the one count of the indictment alleging a criminal violation of the Michigan Criminal Syndicalism Act by voluntarily assembling “with a certain society, group and assemblage of persons, to-wit, the [CPUSA], formed to teach and advocate the doctrines of criminal syndicalism.”100  ... The jury consisted of 12 men (no women this time), nine of whom were farmers...101  Judge Charles E. White presided... Lawyers for the prosecution were Ora Lynn Smith, Charles W. Gore, Max. F. Burger, and George H. Bookwalter. Defending Ruthenberg were Frank P. Walsh and Humphrey S. Gray... The prosecution called Berrien County Sheriff George C. Bridgman as its first witness who testified about the raid on Wulfskeel’s Resort, ... the arrest of Ruthenberg, and his incarceration...102  Edward Shanahan, a federal agent, testified next about ... Ruthenberg’s presence at the resort at that time, and the raid itself.103  The two sheriff’s deputies who unearthed the buried documents testified next,104  followed by another federal agent, Louis Lobel, who was also present during the raid.105  Jacob Spolansky, a special agent of the United States Department of Justice and a Russian immigrant, testified that he recognized Ruthenberg and Foster when he visited Wulfskeel’s before the raid...106  Other witnesses for the prosecution were ... a maid at the resort, and ... a federal agent who identified for the record some of the buried documents.107

All of this testimony was but a prelude to that of the State’s star witness, Francis Morrow, the double agent. Morrow discussed his admission to membership of the CPUSA and his work as a mole there on behalf of the U.S. Dept. of Justice. Morrow ... identified a number of convention attendees, including Ruthenberg and Foster, and described in detail the convention proceedings. Finally, during his testimony, a number of the seized documents were read into the record. At the conclusion ..., the prosecution rested.108

At this point..., the defense moved for Ruthenberg’s acquittal on the grounds that 1) the Criminal Syndicalism Act violated the defendant’s due process rights guaranteed by the U.S. and Michigan Constitutions; 2) Ruthenberg’s prosecution and his conviction and punishment violated those due process rights; and 3) his conviction and punishment would violate his constitutional rights to personal liberty, free speech, and freedom of assembly. [T]his motion ... was overruled by Judge White without explanation.109

The first defense witness was Ruthenberg himself. He ... discussed his joining the SPA and his political activities in that party until the formation of the two rival American Communist parties in 1919. Ruthenberg recalled the Palmer Raids of ... 1920, during which thousands of suspected Communists were arrested by federal agents, and the direct result of those raids—to force the American Communist parties to go underground. Ruthenberg testified at length on the teachings and philosophy of the CPUSA ... and the “materialist conception of history.”

Ruthenberg denied that he was a delegate to the Bridgman Convention explaining that he attended it as a member of the CPUSA’s Central Executive Committee (CEC). Ruthenberg then described the raison d’être for the ... convention: to decide whether the CPUSA should proceed with an “above-ground” Workers’ Party to function as a legitimate ... political organization...  Ruthenberg announced that the CPUSA’s CEC decided this question in the affirmative earlier in August 1922, and took the program of the “Workers’ Party” to the Bridgman Convention for adoption by the delegates.110

The defense’s second and last witness was Jay Lovestone, who was the secretary of the CPUSA’s Central Executive Committee at the time of the Bridgman Convention ... He testified ... that [he] was one of the founder of the “old” Communist Party of America. In Jan. 1922, he was appointed secretary of the CPUSA CEC and acted as secretary to the Convention.111
Lovestone then identified the program of the Workers’ Party and confirmed that it had been adopted by the CEC on August 6, 1922, for reporting to the Bridgman Convention... Humphrey Gray then read this program into the record...112

At the close of the proofs submitted by the defense, Frank Walsh moved for a directed verdict in Ruthenberg’s favor on the same constitutional grounds as ... his earlier motion for acquittal. This motion was again denied by Judge White without elucidation.113  On May 2, 1923, Judge White instructed the jury on Michigan’s Criminal Syndicalism Act and its application to the facts of the case.114  Three hours and 50 minutes after the jury began its deliberations, it returned a unanimous verdict of guilty as charged.115  Three ballots were taken with the result of 9-3 and 11-2 to convict before the third and final ballot.116

After the ... verdict..., William Z. Foster charged that ... the Criminal Syndicalism Act was “the rawest attack ever made on the liberties of the people.”117  In stark contrast, ... Ora L. Smith made the following statement... “It is a righteous verdict by an all-American jury... Had Ruthenberg, a draft evader and a war obstructer, gone free... it would have been a blot on the country.”118

Ruthenberg’s Unsuccessful Appeal to the Michigan Supreme Court

Charles Ruthenberg, through his attorneys, Frank Walsh, Humphrey Gray, and Isaac Ferguson, appealed from the trial court’s decision to the Michigan Supreme Court (MSC). The appeal was argued by Assistant AG Ora Lynn Smith for the appellee and attorneys Walsh and Ferguson for the appellant... [T]he MSC, in a unanimous decision and [in] an opinion authored by Justice Howard Wiest, affirmed [the lower court] ...

[T]he MSC ... gave short shrift to Ruthenberg’s constitutional challenges of the Criminal Syndicalism Act, citing prior decisions of the U.S. Supreme Court, including Debs v. United States, 249 U.S. 211 (1919), and decisions rendered by appellate courts of other states.119  Specifically, the Court found that the statute did not violate the freedom of speech and freedom of assembly rights granted to Ruthenberg in the Fourteenth Amendment... [T]he MSC rejected defendant’s due process argument that the statute failed “to fix an ascertainable standard of guilt” and “was not adequate to inform persons, accused of violation thereof, of the nature and cause of accusation against them.”120

The MSC also rejected appellant’s arguments that the trial court improperly overruled the de-fense’s challenge for cause to a juror who had an opinion of Ruthenberg’s guilt or innocence but believed that he could nonetheless properly perform is duties as a juror.121... and ... affirmed the trial court’s ruling denying Ruthenberg’s motion to compel the prosecution to supply a bill of particulars.122  Similarly, [on] the trial court’s denial of Ruthenberg’s pretrial motion to suppress evidence found in his suitcase ... [it] was found not to have been unreasonable “search and seizure:” the suitcase was in “plain view,” and its seizure was “a lawful incident of the arrest.”123 

At this point in its opinion, the Court reviewed the program of the Workers’ Party that was to have been voted on... According to the justices, this program ... “proposed to destroy the government” ...124  The Court, after reviewing these documents and ... testimony of Jay Lovestone, concluded that Ruthenberg...

...urged an open party to carry on [legal] activities, but his purpose, under order of the Third International [i.e., Comintern] was to further the ends of the underground or illegal party, [centering] upon the destruction of republican or parliamentary forms of government by direct action and criminal force.125 

The Court then proceeded to find that the program and constitution of the CPUSA... constituted “...competent evidence upon the question of whether the assemblage of persons at Bridgman was formed to teach or advocate crime, sabotage, violence or other unlawful means of terrorism as a means of accomplishing industrial or political reform...”126 

... The remainder of the opinion rejected appellant’s arguments that the admission into evidence of other Communist literature constituted reversible error.127  Thus... the MSC issued its judgment certifying to the Berrien County Circuit Court “that there is no error...” and the Circuit Court should “forthwith enter judgments on the verdict rendered herein.”128
Ruthenberg’s Appeal to the U.S. Supreme Court and  Justice Brandeis’ Unpublished Dissenting Opinion

On remand of the case to the Berrien County Circuit Court..., Judge white overruled Ruthenberg’s Motion in Arrest of Judgment and sentenced the defendant to be imprisoned... “for a period of not less than three years nor more than ten years” and fined him...$5,000...129 The MSC overruled Ruthenberg’s writ of error to review his judgment f conviction.130 That same day, Ruthenberg’s counsel filed a Petition for Writ of Error with the U.S. Supreme Court, which was allowed ... by Justice Louis D. Brandeis.131 Brandeis’ Order Allowing Writ of Error permitted Ruthenberg to stay the execution of the Berrien County Circuit Court’s judgment upon his submission of a supersedeas bond of $7,500 on Jan. 26, 1925,132 and MSC ...transmitted [the record] to the U.S. Supreme Court.133

Oral argument... was held in Washington, D.C....with Isaac E. Ferguson appearing for Ruthenberg and Ora Lynn Smith for the State of Michigan. The issue ... was whether Michigan’s Criminal Syndicalism Law ... violated the First Amendment to the U.S.Constitution. After oral argument, the Court arrived at a decisions affirming Ruthenberg’s conviction in an opinion written by Justice Edward T. Sanford. Dissenting were Brandeis and Oliver Wendell Holmes, with Brandeis authoring a dissenting opinion. However, the Court’s decision was never announced ... on account of Charles Ruthenberg’s untimely death due to complications from a ruptured appendix in March 1927 at age 44...

Brandeis [had] determined to ... establish “a jurisprudential framework for deciding First Amendment cases.”134 According to Brandeis’ biographer, Melvin I.Urofsky, Brandeis “... worked for weeks on the dissent and then ... opened the morning newspaper to discover that Ruthenberg had died the day before... Within days the writ of error had been dismissed, [but] Brandeis soon after pulled out [his dissent], as the case of Charlotte Anita Whitney returned to the high court.”135

Brandeis’ unpublished dissent begins by describing the Michigan statute as creating...the new felony of voluntarily assembling... Its criminal quality does not arise from immediate danger of breach of the peace incident to a gathering at a particular time and place under particular circumstances. It inheres, as the statute is construed by the Supreme Court of Michigan, in every gathering of a society, formed to advocate the obnoxious doctrine of criminal syndicalism... The felony is complete at the moment the accused becomes part of the particular assemblage, whatever the time, place or circumstances, however remote the danger apprehended and however improbable that serious evil will eventually befall.136
Brandeis continued...The novelty in the prohibition introduced is that the statute aims not directly at the practice of criminal syndicalism, but at the preaching of it...137

Brandeis referred to prior decisions of the U.S.Supreme Court that invalidated on due process grounds statutes enacted under the states’ police power.
“...But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech, where, as here, the advocacy falls short of incitement...”139


...Ruthenberg entered Jackson Prison but was released when his supersedeas bond was posted.40 He  ... continued with his political and organizing activities after his release...141
In late February, 1927, Ruthenberg ... collapsed and was taken to a hospital. Three days later, Ruthenberg was dead.142

...[M]emorial services were held in New York City, [with] separate events ... at Carnegie Hall, Central Opera House, and the New Star Casino143 ... and also throughout the country in cities like Cleveland, Detroit, Milwaukee, ... and even Grand Rapids.144 Ruthenberg’s remains were transported to the Soviet Union, where they were interred in the Kremlin Wall...145

97Benton Harbor News-Palladium, April 6, 1923, p. 1, col. 6.    98Id.  99St. Joseph Herald Press, April 16, 1923, p. 1, col. 8.  100Record, p. 2; St. Joseph Herald Press, April 13, 1923, p. 1, col. 1.  101Benton Harbor News-Palladium, April 19, 1923, p. 1, col. 1; St. Joseph Herald Press, April 19, 1923, p. 1, col. 8.  102Record, pp. 5-12; St. Joseph Herald Press, April 20, 1923, p. 1, col. 8.  103Record, pp. 12-16.   104Record, pp. 16-18.   105Record, pp. 18-19.   106Record, pp. 19-23.   107Record, pp. 23-32, 33-34.   108Record, pp. 34-115.   109Record, pp. 115-116.     110Record, pp. 117-133; St. Joseph Herald Press, April 28, 1923, p.1, col. 1.  111Record, pp. 133-134; St. Joseph Herald Press, April 26, 1923, p.1, col. 3.  112Record, pp. 134-187; St. Joseph Herald Press, April 30, 1923, p.1, col. 1.  113Record, pp. 187-188; St. Joseph Herald Press, May 2, 1923, p.1, col. 1.  114Record, pp. 188-198.  115Record, p.200; St. Joseph Herald Press, May 2, 1923, p.1, col. 1; New York Times, May 3, 1923, p.1, col. 2.  116St. Joseph Herald Press, May 2, 1923, p.1, col. 1.    117St. Joseph Herald Press, May 5, 1923, p.1, col. 1.  118St. Joseph Herald Press, May 2, 1923, p.1, col. 1.  119People v. Ruthenberg, 229 Mich 315, 322-325 (1924)    120Id., at p. 325.    121Id., at p. 326-328.    122Id., at p. 329-330.    123Id., at p. 330-331.    124Id., at p. 334.    125Id., at p. 340.    126Id., at p. 341.    127Id., at p. 348-357.  128Record, p. 229.  129Record, p. 230-232.    130Record, p. 234.    131Record, p. 234-241.    132Record, p. 241.    133Record, p. 245.  134Melvin I. Urofsky,  Louis D. Brandeis: A Life, p. 634, Pantheon Books, New York (2009).  135Id.    136The Louis Brandeis Papers: Part I, 1916-1931 (Harvard Legal Manuscripts, Harvard Law School Library), microfilm reel 34, frames 00351-00360.     137Id.    138Id. 139Id.  140The Day is Coming, pp. 164-165.   141Id., p. 174-177.   142Id., at p. 177-178.     143Id., at p. 178. 144Id., at
p. 179.

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