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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 counties.

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 is "us"?

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, several, 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 day-we had argument in the morning during that day 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 be ended by reducing the sentences of the clergymen to the time already served. By doing that, you see, they would not have standing to bring a writ of habeas corpus. because they would not be in iail, and they would thus be 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 Dresner 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

question, and then following that suggestion, Judge Rudd, who was the city judge in Tallahassee, actually reduced the sentences.

Senator HRUSKA. But the order issued by Judge Carswell was consistent with the judgment of the Fifth Circuit Court of Appeals sitting in Tallahassee, is that not correct?

Mr. ROSENBERGER. The circuit court of appeals sitting in Tallahassee changed Judge Carswell's order.

Senator HRUSKA. And pursuant to that modification, Judge Carswell issued an order that was in compliance with that change, is that not true?

Mr. ROSENBERGER. No, sir.

Senator TYDINGS. Tell him why not.

Mr. ROSENBERGER. What happened, sir, is that the circuit court itself changed the order of Judge Carswell, and before any further order could be entered

Senator TYDINGS. Changed it to do what?

Mr. ROSENBERGER. Changed it to provide that if an immediate habeas corpus were not granted in the State court, Judge Carswell would proceed to hold hearings on a habeas.

Senator TYDINGS. In other words, the fifth circuit told Carswell that either the county court would have to hold a hearing, giving them their day in court, or that Carswell would?

Mr. ROSENBERGER. That is exactly right, sir.

Senator TYDINGS. And what did Carswell tell the city attorney?

Mr. ROSENBERGER. He told him in effect how to circumvent that because he told them: If you go ahead and reduce these sentences, then there will not be any hearing, there will not be anything. It will be moot.

Senator TYDINGS. When and where did he tell the city attorney that?

Mr. ROSENBERGER. He told him that on the day of August 5. He told him that while the circuit court was sitting in Tallahassee and told him that in the courthouse in Tallahassee.

Senator HRUSKA. But it is your understanding that it was the circuit court that issued the modification order, and that it was not Judge Carswell who did it. Am I correct?

Mr. ROSENBERGER. Yes, sir.

Senator HRUSKA. I just wanted to get that straight.

Mr. ROSENBERGER. Yes, sir; that is correct. In the case of Wechsler, there were seven young people, seven volunteers, who had been arrested in Gadsden County. Three of them were adults and four were under the age of 17. I believe five of the seven were residents of Gadsden County and two were volunteers from elsewhere who had come as voter registration workers. They were arrested for trespassing on lands which were not posted, which were reached by a road leading from the public highway, which had no indication that it was a private road, not posted, not fenced, and they were arrested while they were talking to people about registering. They were arrested by sheriff's officers of Gadsden County, Fla.

The CHAIRMAN. Now someone swore out an affidavit against them in a justice of the peace court; is that correct?

Mr. ROSENBERGER. An affidavit was sworn after the time of the arrest; yes, sir.

The CHAIRMAN. After the time of the arrest?

Mr. ROSENBERGER. They were taken into custody on the road.

Senator TYDINGS. Go into a little more detail. Tell the chairman the

whole story.

Mr. ROSENBERGER. All right, sir. These seven people were on this road. This was a place where tenant farmers lived on a larger farm. Actually on this farm there lived, I believe, the cousin of one of the people who had been arrested and she had frequently visited on this farm to visit her family.

Now the overseer of the farm came down the road and saw these people talking to tenant farmers. He came up to them. He told them that they were trespassing, that this was private property. They explained that they were there to talk to people about voting. He said they were trespassing. They said, All right, we'll leave. He said, No, I am having you arrested. And he told them to wait, which they did, and they were arrested there, for trespassing on unposted lands while talking to people about registering to vote.

The CHAIRMAN. What is the Florida statute on posting?

Mr. ROSENBERGER. The Florida statute, as I understand it, did not require posting.

The CHAIRMAN. All right.

Mr. ROSENBERGER. Yes, sir.

The CHAIRMAN. So they were trespassing. You keep saying that the land was not posted.

I

Mr. ROSENBERGER. Yes, sir, but there was no way for them to know it was a trespass.

The CHAIRMAN. A man is presumed to know the law, is he not?

Mr. ROSENBERGER. He is presumed to know the law, sir, but he is not presumed to know the fact.

The CHAIRMAN. I know, but a lot of States in this country have got a statute that provides when you are on private property if you are told to get off and you do not do it you commit trespass.

Mr. ROSENBERGER. Yes, sir, if you are told to get off.

The CHAIRMAN. And that is what you tell me the Florida statute is. Mr. ROSENBERGER. When told it was private property they said they would leave, and the man said, No, you are going to be arrested. Senator TYDINGS. In other words he would not let them leave? Mr. ROSENBERGER. He would not let them leave. Had he said get off, that would have been a different circumstance. He said, this is private property. They said, we will leave. He said, No you won't, will be arrested.

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The CHAIRMAN. They stayed there until when? They went to the justice of the peace court?

Mr. ROSENBERGER. No, sir, he did not go to court prior to their arrest. He had them arrested while there, while they were on the premises. After they were arrested, he then filed an affidavit in the justice of the peace court in Gadsden County. Now, I filed a removal of those cases. I filed two removals, one for the four juveniles, one for the three adults. I paid a filing fee in the northern district of Florida in Judge Carswell's court.

Now about 2 months before that the fifth circuit court had rendered a decision pointing out that filing fees were not to be collected in such cases, and further pointing out that that law had been changed in 1948

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