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asked for, and he followed the law even though the law substantiated him afterwards that it had to be remanded.

Mr. KNOPF. No, I do not testify that I had no complaint. This was why it was in my memory. I did not favor his actions that he did with regard to the relief requested. I did have a complaint in that I felt that the relief that was finally requested was a relief which we were really entitled to, if in terms of nothing else, in fairness and discretion.

Senator Fong. He gave it to you and took it back?
Mr. KNOPF. That is right.
Senator Fong. This is what you are kicking about?
Mr. KNOPF. Yes, sir.
Senator Fong. But according to the law he had to take it back.
Mr. KNOPF. He had to take it back?

Senator TYDINGS. Not under the law of the fifth circuit at that time. He was reversed.

Senator Fong. Remanding it to the State courts.

Mr. KNOPF. I don't know what the subsequent development of the law is. I can just tell you what my belief was at the time and at that time my belief was that at the very least we were entitled to a hearing and at the proceedings there should not have been a sui spontae remanding but somebody from the other side should have come forward and asked for it.

Senator TYDINGS. Did you ask for a stay?

Mr. KNOPF. Yes, sir, the attorney asked for a stay to the court of appeals stressing again that if these people were sent back, there would be an immediate retrial, they would be immediately put back in jail, and we would again have to worry about their safety, and in addition the voter registration drive would severely suffer, because there were few workers as there was and having most of them in jail was certainly not helping, and that stay was denied by the judge but it was eventually obtained from the fifth circuit.

Senator FONG. If the decision of the Supreme Court is correct then he had to remand it?

Mr. KNOPF. I don't really want to comment. I don't understand those Supreme Court cases.

Senator Fong. If that was the law

Senator TYDINGS. It depends which decision you read and how you read it. The fifth circuit reversed that remand under the law of the fifth circuit at that time.

Senator HRUSKA. Would the Senator yield?
Senator Fong. I yield.

Senator HRUSKA. Let's get this chronology stra* t. The
that the fifth circuit spoke on in this series c' oratio,
Dresner case. The Dresner case was used as th fo
well's rulings in the Wechsler case. Betwer
the rulings in the Wechsler case and t?
Wechsler case appeared in the fifth circu
two cases, Peacock and Rachel, and the co
opinion. The court states that on the bas
in Peacock and Rachel, both of which were
rulings and the Dresner rulings were made
this case to Judge Carswell."

But Peacock was then appealed to the Su decided the same day, was discussed in

tinguished on the facts, at the time the Judge Carswell rendered his decision in Wechsler, it was in keeping with the fifth circuit law as he knew it then, and consistent with subsequent Supreme Court pronouncements on the subject.

Mr. Chairman, that brings me to the suggestions that I made when these hearings were opened. A judge or a nominee will be criticized for having rendered anticivil rights cases, and an effort will be made to make it so appear, but it is not that simple. The decision made and which is criticized must be judged and must be evaluated in the light of the law which prevailed at the time the decision was made. This is a rapidly changing field of the law and it will continue to be, and when each of the decisions of Judge Carswell are considered in the context and in the light of the law as it existed when he made those decisions, he will have been found to be accurately applying the law that was then the law.

Mind you, the City of Greenwood v. Peacock is a construction of a statute passed in 1866, and this is the first time they tied into it to get a job done, and then some people say well, 1954 is 16 years ago, why do we have all these quarrels about the application of Brown v. School Board.

There are thousands of applications and thousands of decisions and rulings and each one has to be reviewed, but if we take it chronologically and take the state of the law as it existed when the Carswell rulings were made, he was consistently accurate.

Senator Fong. Just one question. Actually Judge Carswell was correct when he gave you the writ of habeas corpus and when he remanded the case to the State court.

Mr. Knopf. That was my understanding at that time.

Senator Fong. But you just don't like his attitude, is that correct? The decisions were correct but his attitude was wrong is what you are saying?

Mr. KNOPF. I don't really think, because I am not a civil rights expert, I really don't want to hazard a guess as to whether his decisions were proper in the light of the law. I really haven't followed it.

Senator Fong. Thank you.
The CHAIRMAN. Senator Cook.

Senator Cook. Mr. Knopf, you stated that it was the basic plan of your organization to file writs of habeas corpus so that these matters could be removed from State courts and then hopefully they would lie there in Federal courts and you would not have to try them, is that correct?

Mr. KNOPF. Yes, sir, this was one of the things we had hoped.

Senator Cook. The theory was that you would then have them out of the jurdiction of the State and hopefully you would not have to try all these cases in the Federal court and they would lie there for failure of prosecution and then they would be removed from the docket?

Mr. KNOPF. That is correct, sir.

Senator Cook. Now Mr. Rosenberger this morning, he was aware of this procedure, was he not, that the removals logically, if they followed procedure, they would logically see to it that cases would lie there dormant and that they would not be tried!

Mr. KNOPF. Yes, I believe he was. I can't testify. I mean I knew it. I presume he knows it.

Senator Cook. If this were the procedure of your organization, clearly you knew it, and I suppose that the lawyers that came there knew it also.

Mr. KNOPF. Yes.
Senator Cook. That the procedure was really-
Mr. KNOPF. This was with regard to the voting registration.
Senator Cook. Correct.
Mr. KNOPF. Because we wanted to keep the project going.
Senator Cook. That is correct.
Mr. KNOPF. And have volunteers available.

Senator Cook. Mr. Rosenberger this morning made a great deal to do about the fact that these people's rights had not been adjudicated in Federal court by reason of the fact that their sentences were commuted at the local level and therefore the question became moot. Now it was the procedure of your organization hopefully that none of these cases would be tried in the Federal courts anyway, is that not true?

Mr. KNOPF. This is the voter project. Mr. Rosenberger was talking about something entirely separate from the voting project.

Senator Cook. In other words, in the airport case!

Mr. KNOPF. That is right. This had nothing to do whatsoever with the voting project.

Senator Cook. In other words, in those cases you intended to pursue them. In those cases you intended to pursue them to a conclusion in the Federal court. I am not really trying to argue with you. I am just trying to get it straight.

Mr. KNOPF. To be frank, sir, all I know is what I heard Mr. Rosenberger testify to. I had nothing to do with the Tallahassee ministers case. I was not in the courtroom. I did not participate in filing the papers or working with Mr. Rosenberger.

Senator Cook. In other words, in the voting right cases, it was your desire that these questions really die in the Federal courts for failure of prosecution, and that in other cases not involved with voting rights, such as the Tallahassee airport case, that you all would pursue these things and that they would be tried at the Federal court level, is that correct?

Mr. KNOPF. All I know is what I heard Mr. Rosenberger testify to and I understood that that was his testimony.

Senator COOK. Well, he did not testify to the fact that on a mere filing of a writ of habeas corpus, on a simple writ of removal, that these cases would be allowed to die in the Federal courts.

Mr. KNOPF. No.

Senator Cook. He took the position that these cases would be vigorously prosecuted in the Federal courts, and I merely want to get it correct. Again I say I really don't want to argue. I noticed that you said when you got a petition of removal, that once they got into Federal court you hoped that they would sit there and they would be taken off the docket. As a matter of fact, I think as the Wechsler case was after 2 years for failure to prosecute.

Mr. Knopf. Assuming of course the worker was out of jail and not in jail, then we had hoped that it would not go fully to prosecution.

Senator Cook. But for the record you do want to make a distinction, because I do not want to put words in your mouth, you do want to make a distinction between the voter right cases and those cases which called for a writ of habeas corpus.

Mr. KNOPF. Yes, sir. I was testifying solely with regard to what I knew of the voter rights cases.

Senator Cook. All right.
Mr. KNOPF. And those that I handled.

Senator Cook. I wanted to get that straight in fairness to you and to Mr. Rosenberger. Thank you.

Senator TYDINGS. I have a couple of questions. As I understand it, Mr. Knopf, the reason that you felt that the treatment accorded to you in Carswell's district was not fair in the matter of the remand did not relate so much to the substantive law as it did to the fact that he acted, first of all, sui sponte, on his own motion, without any request from the State. He acted without notice or hearing to the defendants in an area in which the law at very best was murky, and he refused to grant any sort of stay pending the appeal, and that the effect of his order, of course, was to keep the individuals in jail.

Mr. KNOPF. Yes, sir, I testified that that was the course of events that occurred.

Senator TYDINGS. Now, you indicated that in the colloquy between Judge Carswell and Mr. Lowenthal, Judge Carswell expressed his displeasure on out of staters coming into Florida, particular northern lawyers. Did he talk about or express his displeasure with the civil rights workers coming in on the voter registration projects? Did he discuss that?

Mr. KNOPF. I can't recall, as I said before, any specific quotes. I just remember that it was quite clear to me that he was against the whole project and all of the efforts.

Senator TYDINGS. He was against the whole voter registration project for the Tallahassee area?

Mr. KNOPF. That he was against the civil rights work that was going on in the Tallahassee area, that is correct.

Senator HRUSKA. On the effect of Judge Carswell's rulings on your motion to remand and also your petition, the effect could not have been for these people to continue in jail, because the order of remand granted the right of bail. The second paragraph of the order to remand says "the petitioners here, defendants in the action pending and in the justice of the peace court shall be allowed to make new bond or reinstate old bond on the original proceeding in an amount not more than that originally set pending trial or other proceeding in accordance with the law.

So even that order of remand didn't keep them in jail, and the writ of habeas corpus having been granted, the writ didn't keep them in jail, isn't that true?

Mr. KNOPF. As I understand it, the writ released them from jail on their first conviction before the county court, which was a nullity, because county courts had no jurisdiction. But since the matter was remanded, the county court could go ahead and try them again and put them in jail again, and in that jail charge there would be this habeas wouldn't be applicable.

Senator HRUSKA. But they would be able to make new bond or have the old bond continued in force according to the order of remand.

Mr. KNOPF. As I understood it, that order of remand-well, if what you tell me is true it sounds that they probably could make bail if they could get the money which was a large problem among the workers.

Senator TYDINGS. Were they able to get the money?

Mr. KNOPF. Yes, eventually the money was put up, I believe by the town, the black townspeople. A drive was made to collect the bail money.

Senator TYDINGS. How long did they have to stay in jail !

Mr. KNOPF. I really don't recall. I think it was less than a week. It may have been just a few days. I really don't remember.

Senator Cook. I think Mr. Lowenthal said 2 days, once he got his order from the Fifth Circuit, in that particular case.

Mr. KNOPF. But as I understand it, the trial was never held again in the county court, because a stay was obtained from the Fifth Circuit. The stay was obtained by attorneys who went directly to the Fifth Circuit, the stay of removal—a stay of remand order, I misspoke so there could be no trial again in the county court.

Senator HRUSKA. Well, Mr. Lowenthal says in the transcript: They got out of jail the morning after the habeas corpus and remand. They got out of jail on bail that Judge Carswell said they could get out on if they could get the bail. It took overnight to get the bail. The stay from the Fifth Circuit prevented further proceeding by the Gadsden county prosecutor pending the appeal.

Senator BURDICK. Anything further, gentlemen ?
The committee is in recess until 2 o'clock.

(Whereupon, at 12:45 p.m., the committee was recessed, to reconvene at 2 p.m., of the same day.)

AFTERNOON SESSION

The CHAIRMAN. The committee will come to order. Mr. Waits. Hold your hand up, please, sir.

Do you solemnly swear the testimony you are about to give will be the truth the whole truth and nothing but the truth so help you God?

Mr. WAITS. I do, sir.

The CHAIRMAN. Please identify yourself for the record. TESTIMONY OF MARVIN S. WAITS, CLERK OF THE U.S. DISTRICT

COURT FOR THE NORTHERN DISTRICT OF FLORIDA Mr. WAITS. Yes, sir; my name is Marvin Waits. I am clerk of the U.S. District Court for the Northern District of Florida.

The CHAIRMAN. Before you were clerk, what was your position? Mr. Waits. I was supervisor deputy U.S. marshal for the Northern District of Florida stationed in Tallahassee, sir. The CHAIRMAN. What years were you? Mr. Waits. I was appointed deputy U.S. marshal in March 1946, sir. The CHAIRMAN. And when were you appointed clerk? Mr. WAITs. I was appointed clerk of the court January 1, 1966.

The CHAIRMAN. Were you around Judge Carswell much when you were there?

Mr. WAITS. I moved. I was transferred from Gainesville, Fla. to Tallahassee, Fla. in July 1953, and at that time Judge Carswell was appointed U.S. attorney, and that was my first acquaintance with Judge Carswell.

The CHAIRMAN. Answer my question. Were you around him much when you were marshal?

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