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Mr. LOWENTHAL. I remember the name of I believe one attorney who was with me, whose time overlapped mine, but I do not recall whether he was present at the hearing before Judge Carswell to which I have just testified. I do know, however, that there was either a Florida attorney or a law student present with me.

Senator Bayh. Do you remember the names of any of these?
Mr. LOWENTHAL. I do not.

Senator BAYH. Having read the letter to the editor I had several questions but I think I have asked them.

I have no more questions.

Senator THURMOND. Just let me ask you this. Did you go down there before Judge Carswell in a professional capacity ? Were you employed to do that?

Mr. LOWENTHAL. No.
Senator THURMOND. Or were you a volunteer?

Mr. LOWENTHAL. I was requested to go down, but I was not paid to go down. I volunteered my services.

Senator THURMOND. You were volunteering your services?
Mr. LOWENTHAL. Yes, sir.

Senator THURMOND. This is a rather interesting hearing. We just had a volunteer witness. Now we have a volunteer lawyer.

Mr. LOWENTHAL. Lawyers often volunteer their services where counsel are otherwise unobtainable.

Senator THURMOND. We are going to stop now. This is the last witness. Thank you very much for appearing.

Mr. LOWENTHAL. Thank you.

Senator THURMOND. Next week we have certain witnesses. Next week we are going to hear Congressman John Conyers, Jr., of Michigan, Clarence Mitchell, director of NAACP, and Joseph L. Rauh, Jr., Americans for Democratic Action.

Senator BAYH. Mr. Chairman, I hope that we can have

Senator THURMOND. There will be no hearing, I believe, tomorrow, and so we will recess to the call of the Chair.

Senator Bayy. I would like to repeat the request that we made earlier, inasmuch as I do not see Mr. Proctor here. Has he returned? I hope that we can have an opportunity to question him.

Senator THURMOND. I would suggest that you take that up with the chairman.

(Whereupon, at 5:05 p.m., the committee adjourned, to reconvene subject to the call of the Chair.)

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NOMINATION OF GEORGE HARROLD CARSWELL

MONDAY, FEBRUARY 2, 1970

U.S. SENATE,
COMMITTEE ON THE JUDICIARY,

Washington, D.C. The committee met, pursuant to call, at 10:20 a.m., in room 2228, New Senate Office Building, Senator James O. Eastland (chairman) presiding

Present: Senators Eastland, McClellan, Hart, Kennedy, Burdick, Tydings, Scott, Fong, Thurmond, Cook, Mathias and Griffin.

Also present: John H. Holloman, chief counsel, Peter M. Stockett, and Francis C. Rosenberger.

TESTIMONY OF ERNST H. ROSENBERGER, MEMBER OF THE BAR OF

THE STATE OF NEW YORK

The CHAIRMAN. Mr. Rosenberger, hold up your hand, sir.

Do you solemnly swear that the testimony you are about to give is the truth, the whole truth, and nothing but the truth, so help you God?

Mr. ROSENBERGER. I do, sir. Senator TYDINGS. Give your legal background, Mr. Rosenberger. Mr. ROSENBERGER. Yes, sir. I am a member of the bar of the State of New York.

The CHAIRMAN. Speak a little louder, please, sir. Mr. ROSENBERGER. Yes, sir. I was admitted to the bar in 1958. The CHAIRMAN. Pull those mikes closer. Mr. ROSENBERGER. Is that better, sir? The CHAIRMAN. Go ahead. Mr. ROSENBERGER. Is that better? The CHAIRMAN. Yes. Mr. ROSENBERGER. I was admitted to the bar of the State of New York in 1958. I was admitted to the U.S. District Courts for the Southern District and the Eastern District of New York in 1959, and to the court of appeals second circuit in 1961. I attended New York Law School under the New York State War Service Scholarship. While there I was editor-in-chief of the "Law Review” and entered the National Moot Court Competition for my school. I am a member of the Association of the Bar of the City of New York and the New York State Bar Association and the National Association of Defense Lawyers in criminal cases. I am presently practicing law in a partnership in the State of New York. May I make a statement, sir?

(149)

In the summer of 1964 I was a volunteer lawyer for the Lawyers' Constitutional Defense Committee of the American Civil Liberties Union serving in northern Florida. At that time attorneys were assigned to serve for approximately 2 weeks at a time. We were assisted by volunteer law clerks. The overlap between attorneys was about 1 day, that is I would serve for 2 weeks and the day before I left another attorney arrived.

During my stay in Florida, I used as an office the boilerroom of a building on Calhoun Street in Tallahassee, and I slept in Quincy, Fla. Tallahassee is in Leon County, Quincy is the seat of an adjoining county which is Gadsden County which is next west to it.

My responsibility extended from Gadsden County eastward over five coumties.

Hostility to us was patent throughout the area. The postman in Quincy would not deliver mail because the mailbox was mounted about 6 inches back from the line of mailboxes.

Senator TYDINGS. Who isus" ?

Mr. ROSENBERGER. Well, sir; volunteers working in voter registration, that is student volunteers, the lawyers and law clerks. All of us stayed in this house in Quincy. Now there were places where voter registration volunteers had put up posters and those posters were regularly torn down by a deputy sheriff

There were restaurants, sereral, where I was refused when I tried to enter.

The CHAIRMAN. Have you got a copy of your statement?
Mr. ROSENBERGER. Sir?
The CHAIRMAN. Do you have a copy of

your statement ?
Mr. ROSENBERGER. I have just the one, sir.
The CHAIRMAN. Go ahead.

Senator HART. Mr. Chairman. Mr. Rosenberger, it may be the fault of the mike, but perhaps you can overcome it in part by speaking louder.

Mr. ROSENBERGER. I am sorry, sir. I will.

Voter registration workers were assaulted. Firebombs were placed under an automobile. Shots were fired through the window of a house where volunteers were staying. That was just to indicate what the general aura of hostility was in the area at that time.

Now I met Judge Carswell on August 15th of 1964. On that day there was argument before the fifth circuit court of appeals which had come to Tallahassee to hear this particular argument. This was on an appeal from an order by Judge Carswell denying a writ of habeas corpus to nine clergymen who had been arrested some time earlier in Tallahassee as freedom riders, in that they were arrested at the Tallahassee airport restaurant.

During that dav-we had argument in the morning--during that dav Judge Carswell in my presence in chambers in the courthouse in Tallahassee suggested to the city attorney, Mr. Rhodes, city attorney of Tallahassee, that this whole case could he ended by reducing the sentences of the clergvmen to the time already served. By doing that, vou see, they would not have standing to bring a writ of habeas corpus. because they would not be in jail, and there would thus the assured of a permanent criminal record from which there could be no further appeal.

Senator TYDINGS. How long had they been there?
Mr. ROSENBERGER. Sir?
Senator TYDINGS. How long had they been in jail ?

Mr. ROSENBERGER. They had not been in jail very long. At that point they had been in jail about 2 days I would imagine or 3 days. Now, the circuit court order, which was made that day, did not affirm Judge Carswell's order as he had written it, but rather modified it to provide that if the State court did not grant a speedy hearing on an application, the district court, the U.S. district court, that is Judge Carswell, would then hold an immediate hearing.

This was really a very substantial change in the order. I understand that in the Wechsler case Judge Carswell cited that case which was the Drésner case, as having been affirmed. Actually it was modified by the circuit, and then affirmed. It was not affirmed as written.

The CHAIRMAN. You say the Wechsler case was affirmed by the circuit?

Mr. ROSENBERGER. No, sir. I said the Dresner case was affirmed as modified. It was not affirmed as written.

The CHAIRMAN. Excuse me.

Mr. ROSENBERGER. He, that is Judge Carswell, had suggested to city attorney Rhodes that this was the way that the whole thing could be disposed of. The following day I was called to Mr. Rhodes' office. He proposed that I request a reduction of sentences. I had in the interim spoken to these clergymen at the Tallahassee jail, and they instructed me that they did not want to ask for a reduction of sentence. Rather they wanted a habeas corpus hearing where they would be vindicated.

He then asked me, he, that is Mr. Rhodes, asked me to accompany him to the office of the city judge. I did. I found that the clergymen had been brought over from the jail. Judge Rudd then read a prepared order reducing the sentences, and in this order he cited my having made an application for reduction of sentence.

I told him that I had made no such application. I would make no such application. And my clients did not want that application. Rather they wanted a hearing wherein they would be vindicated. Nonetheless, he reduced the sentences and stated to them, "Now you have got what you came for. You have got a permanent criminal record."

Senator TYDINGS. They had a what?
Mr. ROSENBERGER. A permanent criminal record.

Senator TYDINGS. You mean because it was mooted or shortened they had no chance to appear in Carswell's court or any other court, and they would have a permanent criminal record for their entire life?

Mr. ROSENBERGER. That is right, sir. When he reduced the sentence he took away any chance they had to have a hearing before Judge Carswell or anybody else. That was the end of the road because it was mooted, and that record is ineradicable. Those nine clergymen still have that record of conviction today, and I suppose they always will.

Senator HRUSKA. Mr. Rosenberger, what you now describe was the decision of the circuit court, was it not?

Mr. ROSENBERGER. What I have described has been three decisions, three actions really. One was the decision of the circuit court in the Dresner case, which modified Judge Carswell's order. During that day was when Judge Carswell told Mr. Rhodes how he could moot the

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