George Bernard Harris.

Memories of San Francisco legal practice and State and Federal courts, 1920s - 1960s : oral history transcript / and related material, 1980-1981 online

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Online LibraryGeorge Bernard HarrisMemories of San Francisco legal practice and State and Federal courts, 1920s - 1960s : oral history transcript / and related material, 1980-1981 → online text (page 16 of 18)
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at any time. It s in his discretion.

Morris: One hears about the judges lunchroom
Harris: That comes under his supervision.

Morris: That this is a place where the judges can informally try out ideas on
some of their colleagues.

Harris: Yes, that s true.



190



Morris: Is this, would you say, an important way for judges to stay in touch
with each other on the district court?

Harris: Yes.

Morris: In some of the press clippings that I ve read, you ve commented on
your concern when you were chief judge for making some progress in
dealing with the calendar and jury selection and probation matters.
Could we talk about each of those a little bit as to what kinds of
things you wanted to see happen while you were chief judge? On
the calendar

Harris: I wouldn t have any independent recollection, save and except what
the record would provide concerning my attitude and general
deportment.

Morris: Was there much in the way of administrative staff for the chief
judge?

Harris: Yes.

Morris: I was wondering what kind of staff help you had on your duties as
chief judge, in addition to the usual clerks. Was there an
administrative officer for the district court?

Harris: The administrative features of a trial judge are far-reaching and
entail a lively interest in changes in the law and changes in the
procedure of the law.

Morris: As chief judge, do you read up on the changes in the law and see
that the fellow judges ?

Harris: You have to read on every subject.

Morris: Was there ever a feeling that too many new laws were being passed to
enable the courts to reasonably cope with all the innovations?

Harris: No, nothing like that.

Morris: While you were chief judge, were there some new seats added to the
judge, more judges added to the Northern District Court?

Harris: Yes. That s a recurring request.

Morris: How does that happen then?

Harris: Routine procedure.

Morris : Can you request this on your own?



191



Harris: Well, you ve got to get the sense of your brethren, same as any
j udgment .

Morris: What s the procedure then? You talk to your congressman, or ?

Harris: There s always a pending list of applicants for a federal judgeship.
The congressman has wide discretion.

Morris: Doesn t the Congress have to approve an additional seat on the
district court?

Harris: Yes.

Morris: Does that take some discussion, some time, to accomplish?

Harris : Yes .

1

Morris: Is it the Representative or the Senator that s most involved in
those decisions?

Harris: Both.

Morris: A few minutes ago, you mentioned getting the sense of the brethren
on any decision. Is this a procedure that one uses when making a

Harris: Yes. In a difficult case.

Morris: In a difficult case.

Harris: It s not uncommon.

Morris: On an informal basis?

Harris : Informal .

Morris: When you do that, do you generally find on the Northern District
Court that there s a uniformity of opinion on a given case?

Harris: No, I don t think the occasion would ever arise. Like any other
judgment, the court s available, personnel are available, and it
remains for you to decide whether you need help. If you do, they re
quite willing to help.

Morris: I follow you on that. What I was wondering is, in general, when
you feel the need of some consultation, if there were, say, seven
judges on the district court, if you would find when you sought
advice that their thinking would generally be the same, or would
you find that different members

Harris: There s no means of determining. Not relevant.



192



Morris: That s a good answer. [chuckles]

Harris: It s simply that there are no means available.

Morris: For determining that?

Harris: Yes.

Morris: One specific example I might ask you about: do you remember the

Caryl Chessman case, which was in the state courts for a long time?
Caryl Chessman was the "red light bandit" from Los Angeles. He d
been sentenced to death in the California courts. In 1961, Governor
Pat Brown very much wanted to have the state legislature pass a
bill eliminating the death penalty. Chessman s attorneys were
trying every avenue to have his sentence commuted. I believe that
the case came through the district court.

Harris: It probably would come through in an extreme case; ordinarily not.

Morris: Two different people that I ve talked to recently referred to this.
On the day that Mr. Chessman was finally due

for execution, one recalled that you asked to have the execution
delayed while you reviewed the court record on the matter.

Harris: That might be possible.

Morris: Somebody else recalled that it was Judge Goodman.

Harris: Judge Goodman. Yes. [pause] Judge Goodman is a very able man. We
lost him several years ago. Are we about concluded?

Morris: I think so. I wonder if there are some things that I haven t asked
you about that you feel would be useful for the guidance of scholars
in the law about the work of the district court.

Harris : I have no further comments .

Morris: I really appreciate your patience in providing guidance on events
of the past for people seeking to understand our courts today.

Harris : I hope I have made some valid contribution. And I appreciate your
intense interest and the validity of your thinking.



193



Comment on Judge Robert Peckham



Morris : Judge Harris wished to round out this narrative with a comment on
the present chief judge of the Northern District Court, Robert
Peckham, which he preferred to do in writing after further
thought, and forwarded the following statement to the Regional Oral
History Office on October 20, 1980.

I once remarked that "judging is a lonesome business."
Not so when we recount the public interest which Judge
Peckham has manifested since he took over the arduous task
of fulfilling the duties incident to the operation of the
federal court. He has, without overstatement, given
recognition to the quickening public demands and the
complexities of day to day litigation.

Chief Judge Robert F. Peckham has belied the statement
that judging is a lonesome business. Never in the
history of the federal court have we seen such demanding
controversial issues so readily disposed of by a
sensitive roster of federal judges.

Evaluating Chief Judge Peckham s constant vigilance,
we find him immersed in public and social issues to a
degree unparalleled in our courts. Chief Judge Peckham
is truly a leader and a chief among his colleagues .



Judge George B. Harris



Transcriber: Matthew Schneider
Final Typist: Keiko Sugimoto



194



TAPE GUIDE Judge George B. Harris



Interview 1: April 17, 1980
tape 1, side A
tape 1, side B
tape 2, side A [side B not recorded]

Interview 2: April 23, 1980
tape 3, side A
tape 3, side B
tape 4, side A [side B not recorded]

Interview 3: May 16, 1980
tape 5, side A
tape 5, side B

Interview 4: May 23, 1980

tape 6, side A

tape 6, side B

tape 7, side A [side B not recorded]

Interview 5: May 30, 1980

tape 8, side A

tape 8, side B

tape 9, side A [side B not recorded]

Interview 6: June 6, 1980
tape 10, side A
tape 10, side B

tape 11, side A [side B not recorded]
portion of tape 12, side B moved for continuity

Interview 7: June 20, 1980
tape 12, side A
resume tape 12, side B

Interview 8: August 8, 1980
tape 13, side A
tape 13, side B

Interview 9: September 30, 1980

tape 14, side A

tape 14, side B

tape 15, side A [side B not recorded]



1
1

11
21

24
24
33
42

48
48
57

66
66
74
85

89
89
93

102

108
108
117
126
131

142
142
152

158
158
168

175
175
181
187



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-. . . . ."V - ".

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- . . . - -* f


195

. -

Appendix A [appeared in The Recorder, June 28, 29, 30, 1950]

- " -. " "










-


- -



A FRSS PR2S3 AKD IT






TO THE FEDERAL COUJ^TS



.,-



NUTTH JUDICIAL CIRCUIT CONFERENCE . - . . . .. .,,-,.^

SAN FRANCISCO lf v 196V
June 27 - Julr 1, 1950 -,

- - - - - - - - ^ y _^_ - - _ - - - . I- "i-i



- REMARKS OF JUDGE GEORGE B. HARRIS

" i I - :^- : ^-:J&3&



"A FRBS PRESS A^TD ITS RELATION

TO THS FEDERAL COUHTS^

"




S^B



;



: } . g v.,:^,^-j^
_ . . -.~.~

. - ^^-^
During the course of the recent case of United

States v. Harry Bridges public interest, as evidenced

"- .- x

by the breadth and completeness of newspaper cover



age, was extremely great. The extent to which Individ- , ~:d,

" - . "->. .; " ; ..: ^S^^KS

uals through the country and in such outlying areas as
Alaska and the Hawaiian Islands were following the trial^
was brought home to me personally by the volume of letters .
which were received in the course of the lengthy contest,
I an informed that there were present in court the largest
press representation In the history of litigated cases
In the Ttest.

In view of the fact that the Press did such out
standing work in the Bridges case, it may appear strange
that I should presently single out an instance of poor
and misleading reporting. Tet I ain constrained to do so
because I believe the particular example is illustrative
of a certain type of writing which is extremely detrimental

..i " ." "*

to the maintenance of a dignified court system. Further-



, it constitutes an abuse of the freedom which Is
%r the Press under our Constitution and may be -



of reporting which ultimately leads to the

* - -.-

of rentrlctions on a free press.

Specifically, I have reference to an article
which appeared on Wednesday, April 12, 1950, in Westbroolc
Pegler s syndicated column.



<, -*-

- *



1*7 !* .<: : : ~*$V

Before I review the highlights of the colunn, ^
I should note that it is the conceded prerogative of a
columnist, or other newspaper writer, to express his own
or interpretations of any event, legal or othe

, which occurs. Such writer may comaent without




a .

- J^* 1 ^ 111 * either factually or in slanting his Tiews.

,v>>3>-: ? :.-.^- | ,

" * -> -

ever, there is no requirement or limitation which should
be imposed upon any reporter who purport* to inform th



public: He should first equip himself with the facts.

Thereafter, he is free to present his own interpretation -

"*



"







**. -V- f-"~ r -^-. - . . .

^ i ^^V. >:&

. - -.^.J**A*



of those facts.

When a columnist intends to editorialize upon a
trial or any phase of a trial, he may obtain his factual
foundation without difficulty. He has access to records
in the Clerk T s office of the trial court. He may learn
for himself exactly what took place in the course of a
trial. If he cannot conduct a personal investigation, he



* -

may obtain the necessary information promptly and accurately



from a representative.

In reporting an incident which occurred during the
Bridges trial, Ur. Pegler relied upon information which was
not trustworthy. Accordingly, the analysis which he raade,
based on inaccurate source material, was bound to be mis
leading and to be most unfair toward the person or persons
dealt with in the article. But of far more tragic conae-
than any injury done individually to reputation
implied premise of political corruptlra on the
and government counsel. That the article was
false and harmful in its implications is made clear fra
a reading of the column in question and comparing it with
the testimony to be found in the printed record,
pages 227O-2287.




C

1 QQ "-"" ~* : .-^ji ~- ~~

198 .._ gj -

- ;



.

" ~~




I shall review the first several paragraphs in

Hr* Pooler s column: The subject matter is Sleenor
; the situs of the action is the District^ """-.

5 the event is the Bridges trial. Mr. PegleV is

?s* " . s ,vo^~ ; \

tempting to summarize events which supposedly occurred

. - . %]8fjjgt&
during no phase of the trial. An analysis of hla article

," .- :... ; " " "*. "" ; -" : .-^-"..w -^"-^< v/ :

discloses that each and every assertion of fact Is inac
curate, incomplete, or untrue* Thus, Mr. Pegler coorioricas;

; . ... "-. .-f-^. . " - ,., " Jt-f; :

"The trial and conviction of Harry Bridges produced
further evidence that Eleanor Boosevelt is a bad security
risk and should be denied further access to confidential
information.* As a Batter of fact, Mrs, Hoosevelt*s
name was mentioned at only one Juncture in the trial and
nothing in the way of evidence was adduced to show that
she was a bad security risk or any risk at allJ nor that

-* . < - /

she had access to confidential information in the Govern
ment files.

Ee continues, "Unquestionably she got her hands
on confidential FBI reports on Bridges and wrote on White
House stationery a letter to friends of the defendant.

The* trial testimony did not establish that ICrs.
Roosevelt was able to get her hands on any FBI files or

- - - -, _ . -*- . .: : -. - ..

reports on Bridges. No letter suggesting that she had
access to confidential information was offered in evi-
It is possible that she may have written a

,-jj*

..- "> -"- " - .-"

T, - . <$r-

fr -friend or friends of the defendant on an occasion 3
aoaia njlna yeara before the instant oase; but the rs cord

-,*:.. 3 -> -v~ .- . .,4 - . -

is barren of proof of its contents.

* - -v. .




:f- .

- -. e -., ..

- -*-.. v-1-. : ->:*



,.

. ..-^



199




..? -

Fegler goes on: The public does not know what >v ^.
the letter said. F. Joseph Donohue, the Special Prosecutor^
a Democrat, and Judge George B. Harris, also a Democrat

* . ,-, ;.,,-

excluded the tert from the record.




%t; The transcript of the trial discloses that

-I"-. };

#5r-

sel for defendants referred to a letter purportedly writ

.- : ^V-

ten by Urs. Hoosevelt to Mrs, Mervyn Rathborne. wife or v^; ;

-~ . . <.r^_ v /T *

"

, . : ..- * J7r".-><i

one of the Government witnesses in the present case*



J&



By innuendo, the question involving the letter suggested

- -;.;./.- - .- ^:: -
that the writer had been critical of witness, Eroleic. But

. r-i ^tiV . - V -^:SVS,^,

nothing was said or inplled in the question as to indicate

;. r A -^K - - : : - L^i: - -?

that the author had access to confidential sources of

-." . . - - w

.- . _ : . . - j

information. Furthermore, no offer of proof was ever aade

-

by counsel for the defendant of any letter written by

.
Mrs. Roosevelt. Therefore, it was impossible for

either Mr. Donohue or the Court to exclude such a letter
from the record.

"

Again quoting from the article: "Nevertheless,

the letter is known to have existed. It proves that she

: "
did have access to confidential FBI reports which are sup



posed to be withheld froa all unauthorized and unofficial



:.
.. -> -



persons.** There is no proof that Jirs. Roosevelt ever

_ - - i. .. .""

wrote a letter with contents suggesting or establishing
that she had access to confidential FBI reports. At most,
..the trial record discloses that UraRoosevelt may have



written a letter to Mrs. Rathborne in 1941. The

-

..nob offered In evidence, it was not made a part of



. ,-.

record; its contents were and are unknown.

- .-

If defense counsel had such a letter, written
by Eleanor Roosevelt, it was never produced for a ruling

(4)






by the Court and no subsequent mention of the Incident

" *& .,-..;:.. - -^v



, . . . .,-....

was thereafter made. It is quite obvious that neither



**??



the Court nor Government counsel exercised any control

. -..- 5& ^-^^-r-v * - - - . *&?$& *.&
over the production of the letter. Tet Mr. Peg!

n to criticize Court and Government counsel for

from evidence an unidentified letter, /&*

~vv

- !" ->" - . H

Though a well known columnist has conaltted
serious wrong toward several individuals as well as the
Federal Court, there is little recourse for those Injured.

.- -. . . . -.""" *- * -^.^if .,. .

In its desire to give full scope to .the Consti
tutional guarantee of freedom of speech and of the press,
the Supreme Court has gone to extremes to protect the
rights of the citizen to express himself, orally or in
writing. Today the individual must exercise only a bare
minimum of restraint. Just how far the Individual nay
go is expressed by Mr. Justice Douglas in his majority
opinion in the case of Tonainiello v. City of Chicago,




-.:









537 U.S. 1: * a function of free speech under
our system of Government is to invite dispute. It may in-

" ."Si; - .- - - ~ i- !."* <

deed best serve its high purpose when it induces a condi
tion of unrest, criticism, dissatisfaction with conditions
as they are, or even stirs people to anger. ,. that is
why freedom of speech, though not absolute. . . is never
theless protected against censorship or punishment
~ unless shown likely to produce a clear and present danger, ^ 5 *

- - lir ^ in <* i i r i , r, , ^-^^^-^ +*** ^j.j^nwaw ,T*,w7a v y.- - .^y-v. .. l!

&$%&&

kr **fc " " VA^** * *fii

"&& -.serious substantive evil that rises far above "- " *-~



enlance. annoyance, or

~~ ~ ^







In t he ease of Terainiello, the particular

; -

speech which was the subject of prosecution had eventuated

I - r:-.yr .-.- - . . , . fe^T-;.^_,- . _ . - :* ^ : - r ... .

in rioting, injury to persons, and property damage. The

" *"



(5)



201 -f^^C; ^r;

police had been called in large numbers to quill l& dis-/

,- ^ 4AW W A O

. - -* ""

turbanoe. The Court found that the speech Itself was no t



..,.. sufficiently inflanaatory to produce a
*> , the Court suggested



<"- : -*






|||||ice should have been afforded so as to

%gg^$& rioting which ensued. -^S^^^

Our judges were not always so solicitous of the
rights of the individual to express himself as ne saw fit.
But America s heritage of freedom of speech and of the * |
press is now more than 200 years old.

Many years before the colonies
independence from England, bold individuals in
did not hesitate to express themselves when they were ai- .
gered by the abuses of the Colonial Administration. Hepre-
sentatives of the Crown took action against such critics. "
The particular case which is credited with having
established the doctrine of freedom of the press arose in
1735, during the reign of King George II. It involved
John Peter Zenger. a German immigrant, who was tried In
that year for having committed a libel against the
Government.

.; " :..];

When John Peter Zenger arrived In this country
from Geroany at the age of twenty, he was trained as a
printer. In 1735, he reported certain political events
which .transpired during the course of a Hew Tork asse-blj

n in which Lewis Korris defeated the Royal candlS^^
he "New Tori, weekly fezette" refused to publl* "%
o article beoanse of Its unfavorable ref erenoes to
Governor Cosby, the Colonial Governor of the province.
Thereupon, Zengw detemined to publish his own newspaper,
which he called The Hew Tork Weekly Journal.-



. -





I^^JO &tics James




s



In his publication Zenger printed articles which
were critical of Cosby, his counsel and the general assem- ^
bly which carried out his wishes. Despite pressure and
threats Zenger refused to desist from his printing.
Grand Jury refused to indict Zenger for libel,

induced the Attorney General

spsspi^

^wfile an information against Zenger.

The particular publication, which the Governor
complained of, read as follows:

They (the people of the City and Province of
??*% * orlc think, as matters now stand, that
their liberties and properties are precarious,
and that slavery is likely to be intailed on -
them and their posterity, if some past things
are not amended; and this they collect from many
past proceedings. "

At the trial of Zenger, his counsel admitted the
publication. The Attorney General thereupon rested his
case, stating that, since ttr. Zenger conceded that he had
published the libel, he was guilty of the crime charged.

Andrew O. Hamilton, who defended Zenger, sought
to prove the truth of the publication as a defense; he was
stopped by the court which held that such a libel could not
be Justified regardless of its truth. Such was the rule
in the court of the Star Chamber. When Hamilton was block
ed by the court, he made his appeal directly to the Jury
and over the head of the judge. In effect, he asked the
Jurors to defy the harsh law read down by the Judge and to
protect a citizen s right to speak the truth in governmental*^

SRKa; . ^-i^Ci^

He concluded:



"w foondatlon for nmr onn~ Tary oon >Plaiat

oppressions and



~







ion,.



2



-






203



in its consequence, affect every freeman that

lives under a British Government on the sain of / -M;\

America. It is the best cause; it is the cause

of liberty; and I sake no doubt but your

conduct, this day, will not only entitle

the love and esteem of your fellow

every man, who prefers freedom to a life of jj&jjjjZ

slavery, will bless and honour you, as nen

have baffled the attempt of tyranny; and,

impartial and uncorrupt verdict, have laid

noble foundation for securing to ourselves, oar

posterity, and our neighbours, that to which

nature and the laws of our country have given

us a right - the liberty - both of exposing and

opposing arbitrary power (in these parts of the

world) at least by speaking and writing truth.*

-"" "w "
Despite the protestation of the Attorney General




<



to the argument, and the instruct! ons of the Chief :~-Jfliistlc*^^
that Hamilton s words were not the law, the jury acquitted

- -

Zengsr, His acquittal constituted a great victory for the
cause of liberty and in effect established the doctrine of
freedom of speech. Today, truth with good motives and
for justifiable ends, is now a complete defense to a
criminal libel. Furthermore, a libel upon a Govern
mental body, as such, is not recognized.

Recent decisions unfold the latitude now afforded

-* ~ " :

newspapers In their comments. They aay castigate courts
and judges - even during the pendency of litigation*



Reporters are no longer curbed by fear of judicial - ..: ..

* "

wrath. Current decisions have established the futility
of making contempt rulings against reporters and editor
ial writers who have intruded themselves into the
picture, even before the conclusion of a

; - " v^^SpillSR^Lt:

In Craig v. Horney, 331 U.S. 367, * the Supreme
^followed a doctrine whic h it had expressed with clarity"" ^
in two previous canes, namely, Pennekaiap v. Florida,
328 U. 8, 531, and Bridges v, Calif., 314 U.S. 252

C8) :;




"-.:# .. - -



204 .,V-:., . .,.. .

In the Craig case the reporting and editorial writing of
a Corpus Christi, Texas, newspaper were held to

;Xs,: ../t^ -

be non-contemptuous , despite the abusive languagei .:. ^,

-




and the implied political threats contained In
articles. A state trial judge had directed a

pyfcS.-. "- - -"

v Jbitrant jury to bring in a verdict in favor of the

*"*." - ~"- -.jj?

in an unlawful detainer action. The def endant, who was
a veteran, had the sympathy of both jury and public. The
newspaper account fanned the synpathy into a- white heat of
indignation against the judge and his rulings. This was
done before the Court had passed upon a motion for new ^

uaTXCtJL* .

. . . -

Despite the fact that the paper labeled the
judge s ruling as a "gross miscarriage of Justice" and
spoke of the judge s behavior as having brought down "the
wrath of public opinion on his head"; despite the fact
that the paper stated that a service man "seems to be
getting a raw deal," and "there is no way of knowing

whether justice was done, because the first rule of

.
justice in giving both sides an opportunity to be heard t

was repudiated," the Supreme Court held the writing came

within the protective orbit of constitutional safeguards

2
of freedom of the press and was not contemptuous.



The Court analyzed particular writings in terms of their
likelihood of creating a "clear and present danger" to
tlie administration of justice. Bridges v. Calif.
t^v tne freedom of press doctrine beyond the earlier
v * nat a ?8< ieral Court night punish by contenpt a
?*k ich ^^ * a reasonable tendency" to obstruct the
** tration of justice.



The present attitude of the Suprene Court is well expressed
in Ponnekarnp v. Florida, where the Court stated, p. 347;
"Courts have power to protect the interests of prisoners
and litigants before then from unseemly efforts to pervert
judicial action. In the borderline instances where it is


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Online LibraryGeorge Bernard HarrisMemories of San Francisco legal practice and State and Federal courts, 1920s - 1960s : oral history transcript / and related material, 1980-1981 → online text (page 16 of 18)