The Daily Worker Newspaper, October 31, 1934, Page 2

Page 2 Court Records Reveal Chamlee-Leibowitz Southerner Praised I. L.D. and Denounced LEIBOWITZ LAUDED LL.D. AS ONLY GROUP ABLE TO Telegram Sent to Brodsky by Chamlee on Appeal Data Condemns Himself, Leibowitz And Amsterdam News The public attacks which Sam- uel Leibowitz and George W. Chamlee, together with the Har- lem Amsterdam News, have been hurling at the International Labor Defense at this crucial stage of the Scottsboro case are indicative of “desertion, or perhaps worse,” Joseph R. Brodsky, chief counsel of the I L. D. declared yesterday in a statement detailing the full history of the recent developments in the case. Giving irrefutable proof that every legal step taken by the I. L. Dy before the Supreme Court has been taken at the advice of either Leibowitz or Chamlee, Brodsky minces no words in commenting ort the peculiar circumstance that both of these attorneys have chosen to attack the Scottsboro defense 38 days before the date set for the execution of Haywood Pat- tezson. Brodsky’s full analysis of the present sitmation in the case fol- lows: z By Joseph R. Brodsky Counsel for the International Labor Defense December 7, 1934, is the date set by the State of Alabama for the execution of Haywood Patterson and Clarence Norris, two of the Scottsboro defendants now sitting in death cells in Kilby Prison, Montgomery, Alabama. Thirty-eight days remain in which to arouse world-wide protest against this barbaric ver- dict ‘This is the time picked by Sam- uel S. Leibowitz, George W. Cham- lee; and their mouthpiece, The Am- sterdam News, to launch a hypo- critical and unprincipled attack on | the International Labor Defense, which for over three and one-half years has led the struggle for the unconditional release of the inno-| cent Scottsboro victims and has argused millions throughout the World in protést against the hor-| rible frame-up; attacked also in this tirade of abuse are the attor- neys Defense, Osmond K. Fraenkel and Joseph R. Brodsky. The particular point of attack over the radio and in the press launthed by Messrs, Leibowitz and Chamlee is that the I. L. D. and its attorneys were negligent in making a@. motion for a new trial in the case of Haywood Patterson and in filing the bill of exceptions for his appeal. This accusation is entirely false, and known to be so to those making the charge. Here are the fa The third trial of Haywoo terson was held before Judge W. W. | Callahan in Decatur, Aladama, and a-jurty brought in its verdict of guilty on December 1, 1933. Sen- tence of electrocution’ was’ an- nounced by Judge Callahan on De-| cember 6, 1933. Two important steps were neces- sary for the purpose of taking an appeal to the Alabama Supreme Court. The first was the filing of & motion for a new trial before the trial judge, and after that was de- nied, the filing of a bill of excep- tions in the Supreme Court of the state. Immediately after the jury brought in the verdict Mr. Leibo- witz requested Judge Callahan for thirty days from the: time when he would get the stenographer’s min- utes within which to make a motion for a new trial; this the judge de- clined, stating that Mr. Leibowitz had thirty days within which to file such a motion, and could apply for a continuance if necessary. ‘These proceedings are fully re- ported in the New York Times, the for the International Labor | Pat- | |New York Herald Tribune and the Worker of December 2, 1933. meant that by the court’s nm a motion for a new trial had to be filed on or before Decem- ber 1933, and in order to make the task of finally Mr. Chamlee. On December 28, 1933, Mr. Cham- lee sent the following telegram to} Mr. Brodsky; the message is set forth verbatim: “Dec 26 1933 AM 12 57 Joseph Brodsky 100 5 Ave NYC “Patterson motion for new trial ought to be filed by December twenty nine and continued until full regular motion can be prepared and filed wire me what to do at once G W CHAMLEE” The motion for a néw trial was | filed on December 29, 1933, as di- rected by Mr. Chamlee; I applied to Judge Callahan for a continu- ance, and the latter, over his own | signature, continued the motion to January 27th; thereafter Mr. Fraenkel, who had in the meantime been retained by the International Labor Defense to take charge of the appeal, advised Judge Callahan that he had been informed by Mr. Kingsberry, court stenographer, that the minutes of the trial would not be ready until the end of Jan- uary, 1934, and requested a further continuance of the motion for a new trial, which again was granted | over the signature of the judge, and February 24th was finally fixed as the date for the hearing on that motion. Mr. Leibowitz was advised of all of these proceedings and never raised any- Objection. thereto. On Feb, 24 Mr, -Fraenkel ap- peared. at the Decatur court room to argue the motion for a new | trial, and then and there Attorney General Knight, who had prose- cuted these cases, moved to strike the motion upon the ground that the original motion. for a new -trial had been filed too late; he argued that the motion for a new trial should have been filed by Dec. 23, 1983, since that was the end of the court term at which Patterson was tried. Mr. Fraenkel called to the court's attention. the fact that it had granted thirty days. within whieh | to file the motion for a new trial; that this direction was fully re- Ported in the press; that the at~ tempt to raise a legal technicality for the purpose of denying a de-| fendant facing the electric chair a! proper opportunity for appeal was | outrageous; that any attorney had| a right to rely upon the court’s in- struction and direction. Judge Callahan granted the At- torney General's request to strike | out the motion for a new trial, rul- | ing that regardless of what he had earlier done or said, he had no power to grant an extension beyond the term of court which expired on Dec. 23. No claim was made at that time either by Mr. Leibowitz or Mr. Chamlee that either the I. L, D. or any of its attorneys had been guilty of any negligence in regard to this matter; | honestly made. | The fact is that the date upon which the motion was filed, i.e. Dec. 29, 1933, was the date fixed by Mr. Chamlee (as is shown by the photo- static repomduction of his telegram appearing on this page), who for many years has been a practitioner in the Alabama courts as well as in the courts of other Southern states, and was presumably familiar with local procedure and practice; ne- glect, then, if any, should lie at the door of Mr. Chamlee, and still I do not charge him with neglect. | It is my firm opinion now, that | he, as well as all of the other attorneys in the case, had a perfect right to rely upon the judge's in- structions; I do not condemn him for the télegram which is quoted above and do not blaime him for| what took place in that court upon the date of the argument of the motion for a néw trial. I do ve- hemently condemn and criticize both the judge and the attorney general, who raised miserable legal quibbles and technicalities of their | own makng for the purpose of de-| feating Haywood Patterson's ef-| | forts to take a proper appeal. And likewise I condemn in no un- measuted terms the efforts of| Messrs, Chamlee and Leibowitz to make it appear that the I, L. D. or Mr, Fraenkel or myself were negligent in filing the motion on Dec. 29, 1933, which, as is now clear, was the date fixed by the Honorable George W. Chamlée, Sr. himself, | Now as to the second step neces- saty to perfect the appeals, namely, | the filing of the bill of exceptions. Under Alabama law a bill of ex- ceptions, which in effect constitutes the transcript of all of the pro- ceedings at the trial, must be filed either ninety days after the denial of the motion for a néw trial or ninety days from the date of entry | of judgment, Common sense would seem to dictate that Judge Callahan hay- ing struck out the motion for a new trial on Feb, 24, which in ef- fect was a denial thereof, give us ninety days therefrom within which to file our bill of exceptions. But we had just had a bitter test of Alabama legal hair-splitting, and | so Mr. Fraenkel decided that he would not wait for ninety days | | from Feb. 24, but that he would file | | his bill of exceptions within ninety | days from the date of entry of | judgment. There was some discussion at the | time between Mr. Chamlee and Mr. | | Fraenkel as to whether the ninety |days ran from the date of convic- | tion or from the date of. sentence, | which was rendered on Dec. 6. Mr. | Fraenkel gives it as his opinion | that neither event was. controlling, but that the controlling event was the entry of judgment in the docket. | Both Mr. Fraenkel and Mr. Chamilee, who wete in Decatur, at the time that the motion for a new | trial was so summarily and cruelly disposed of by Judge Callahan, ex- | ; amined the clerk’s minutes in De- catur and came to the conclusion that judgment had been entered on | Dec. 6. Their opinion in this re- | spect was corroboratéd by the writ- | ten motion of Attorney General | Knight himself, who, in moving to | | strike the motion for a new trial, | had set forth that “this court no| | longer has jurisdiction, power or authority over the judgment ren- | | dered in this cause on the 6th day | of December, 1933.” | In other words, the court docket | showed conclusively that Judge Cal- lahan had in his own handwriting | | entered judgment on Dec. 6, 1933; | | the Attorney General had set for:h DAILY WORKER, NEW YORK, WED) BY CHAMLEE HIMSELF TO BRODSKY MANS 5 38M COLLECT OG CHATTANOOGA TENN 27 WSEPH BRODSKY ee A we HA. BSS 06 28 mw 12 57 PATTERBOK MOTICH FOR NEE TRIAL OUGIT TC SE FILED BY BEQEMMER THENTY NINE AND CONTINUED UNTIL FULL REGULAR MOTICN CAN BE PREPARED AND FILED WIRE ME PHAT To DO AT ONCE G © CHAMLEE, 4 x OS in his motion papers that judgment | in the case of Haywood Patterson had been entered Dec. 6, 1933. And it is my judgment and opin- no such claim could be) ion now, as it was then, that both | |Mr. Chamlee and Mr. Fraenkel | were correct in concluding that | since Dec. 6 was the date of entry | of judgment, March 6, 1934, was the | | last day upon which the bill of ex- | | ceptions could be filed. | This meant that whereas defense | | counsél had expec‘ed to have three | | months from Feb. 24—assuming that | the motion for a new trial would be dismissed on that day—within | Which to prepare a bill of excep- tions, this allowed only ten days! | within which so to do; this in-| volved a task of the first magni- | tude, since it meant turning into |Marrative form over one thousand | pages of testimony. Mr. Fraenkel commenced this job the moment he stepped on the train in Decatur on Saturday afternoon, Feb. 24, 1934, and continued working all of that night until his arrival in New York. In the meantime, he arranged by telephone to have other attorneys here in New York work on other portions of the record. Monday morning, Feb. 26, most of the ma- terial was placed in the printers’ SS Aeeqdaa BAS Waa anna § trot hands, and all the rest of it reached the printers that day. It was found that. to complete the task within the time allowed was beyond the capa- city of a single printer, and so part of the work was let out to other printers; these printing establish- ments were kept working day and night. The bill of exceptions was filed on March 5, which is within the ninety-day period calculated from the date of sentence set forth in the judgment docket and as sol- emnly recited by the Attorney Gen- eral. As a matter of fact, in order to make doubly sure, a completed copy of the bill of exceptions in the Patterson case was completed late on Wednesday, Feb. 28, and was sent by airplane to a lawyer in Bir- mingham, who had agreed imme- diately upon its receipt to motor to Decatur to file it. Unfortunately, the airplane met with an accident and did not arrive as scheduled, 80 that it was impossible to file this bill of exceptions on March 1. However, the bill of exceptions was filed on March 5, and it is my contention that it was filed on time. The appeal was reached for argu- ment on May 25, 1934, and then for the first time the Attorney General, just before the argument started, made a motion to strike the bill of exceptions. The argument on appeal was made by Mr. Fraenkel and Mr. Leibowitz; Mr. Chamlee was also in court; and all of these attorneys agreed ihat this attempt on the part of the Attorney General was shameful, and prophesied that it was doomed to failure. No claim was then made by either Mr. Leibo- witz or Mr. Chamlee that there had been any negligence; indeed, they had been at all times informed of | | \ cal SDAY, OCTOBER 31, 1934 ! | everything that had been done; th | only difference between their posi- | tion and that of Mr. Fraenkel was | that the latter had done all the work, | The Alabama Supreme Court, dis- | regarding all of the foregoing facts | and all the arguments made, struck out the bill of exceptions; it re- mains to be seen whether the Su- preme Court of the United States | will permit such tactics to pass un- | rebuked and such outrageous con: duct to remain uncorrected; the responsibility, however, for what happened must be upon the au- thorities and courts of the State of Alabama. The attack of Messrs. Leibowitz and Chamlee charging the I. L. D. and its attorneys, Mr. Fraenkel and | Mr. Brodsky, with negligence, is thus seen to be entirely ill-founded and untrue; such attasks are nothing more nor less than justifications of the courts and authorities of Ala- bama who invoked legal technicali- ties of the flimsiest and most un- founded character for the purpose of avoiding & decision on the merits in the case of State of Alabama vs. | Haywood Patterson. It is important to remember that the case of Haywood Patterson was the first of the two cases tried be- fore Judge Callahan; that it was in Haywood Patterson's case that Judge Callahan raised the color line in charging the jury by stating as follows: “Where a woman charged to have been raped, as in this case, |is a white woman, there is a very strong presumption under the law that she will not and did not yield voluntarily to intercourse with the defendant, a Negro, and this is true, whatever station in life the prosecu- trix may occupy, whether she be the most despised, abandoned or ignorant woman of the community, or a spotless virgin, or a daughter of a home of luxury.” It must be remenibered that it was in the Haywood Patterson case that Judge Callahan instructed the jury at great length under what circumstances they could find the defendant guilty, and then com- pletely forgot to instruct the jury that they could also find him in- nocent, until the matter was called to his attention by defense counsel just as the jury was about to re- tire after his charge had been com- pleted. It was in the Patterson case that Judge Callahan refused to grant an hour's adjournment for the purpose of permitting the medi- expert employed by defense counsel. to reach the court, even though he. was advised that the doctor was on. his way; it was in \Jahan Jate in the afternoon refused to grant an adjournment until the following morning for the purpose of permitting the Ruby Bates tes- timony, so vital to the defendant, to reach the court house, even though I exhibited a telegram from the court to the effect that said tes- timony was in the mail, and even though defense counsel agreed that | if such testimony did not arrive at the court house by nine o'clock the next morning he would com- plete his case without such testi- mony. Ruby Bates’ deposition did arrive at nine o'clock the next morn- | ing, but Judge Callahan had closed the case the night before and would not permit it to be read. These Tulings, amongst others, on the part of Judge Callahan surely offered | the basis for a vigorous appeal and | © well merited reversal. Is it surprising that the jury brought in a verdict of guilty under such circumstances? One might well ask whether the same things were not reneated in the Norris case. No, it was not necessary. The jury in the Norris case, which was tried after the Patterson case, had the Patterson verdict before it; that was quite sufficient. In that case, therefore, the Ruby Bates deposi- tion was allowed in; in that case, therefore, the color line was not raised in the charge but instead the court very pointedly said when he came to that portion of his charge, “I do not draw the color line” and in that case he even charged the jury that they might find the de- fendant not guilty if they were con- vinced beyond a reasonable doubt of his innocence. The striking of the motion for a new trial and the striking of the bill of exceptions meant that the Alabama courts had decided | mouth or pen disapproval of tac- |the Patterson case that Judge Cal- | Charges As Lies TOTAL UNFITNESS OF LEIBOWITZ CITED FOR APPEAL CASE |New York Criminal Lawy: that these errors would not be passed upon—and they were not passed upon. Nowhere in the speech of Mr. Chamlee over the radio, nowhere in the columns of the Amsterdam News, nowhere in the speeches of Mr. Leibowite, does one find criti- cism of Judge Callahan or Attorney | General Knight, or of the Supreme Court of Alabama for these actions; the searchlight of criticism is shifted: from where it belongs to the I. L. D. and to Mr. Brodsky and Mr. Fraenkel, convenien'iy ignoring their own ‘role in the preparation and conduct of the ap- peal. Is it not a fair inference from the foregoing to conclude that the actions of Messrs. Leibowitz and Chamlee constitute an attempted whitewash of the Alabama courts and authorities, and are not the ac- tions of men whose chief concern 1s the interest of the defendants, which they so vociferously profess? Permit me to comment further) on the good faith of Messrs, Lei- bowitz and Chamlee. In a collect telegram to me dated October 23, | 1934, which is quoted in the Am- sterdam News of October 27, 1934, Mr. Chamlee says: “I see no need to confer with you or the I. L. D.| . . . I never approved of your tactics.” | For three and one half years I, worked together with Mr. Chamlee | on the Scottsboro case, and never | did I hear from him by word ot | tics of the I. L, D. or of myself, except as to one question, and that is that he felt that the I, L. D. had | made an ertror in retaining Mr. | Leibowitz as a trial lawyer and | made a bigger error in keeping him | after the first trial before Judge Horton upon the return from which trial Mr. Samuel S. Leibowitz | made that stupidly “brilliant” re-| mark about lantern-jawed morons) on the Alabama jury. | I wonder whether Mr Chamlee | approved of I.L.D. tactics on Au-!| gust 24, 1933, when he wrote me a} letter under that date referring to) the cases and to the job that re- | mained to be done in connection | therewith; the second paragraph of that letter reads as follows: “The | I. L, D. ts the only institution in the world which is able to carry this load and deliver it.” Mr. Leibowitz came to the con- clusion that I. L. D. propaganda Scottsboro boys. Was it during the year and a half that he worked under a retainer of the Interna- tional Labor Defense without—let me state frankly—payment of serv- ices, frankly—payment of all disburse- ments and expenses, during which time and time again, at mass meetings held underI.L.D. .auspices, he said: “If it had not been for the LL.D, these defendants would have long since been dead.” I heard him utter these same sentiments in the court room in Decatur before Judgé Horton. : At St. Nicholas Arena upon his return from Decatur he stood on the platform when the thousands thete assembled rose to render an ovation to Ruby Bates, the heroic southern mill worker who had come back from a southern court room, where she had made history, and he waved a red tie which he wore for the occassion, and where later on that evening he paid tribute to the struggle waged by the I. L. D. for the unconditional release of the Scottsboro boys. When was it that Mr. Samuel S. Leibowitz decided that the ILD. propaganda was hurting the Scotts- boro boys? I'll tell you when. When I wonder also when it was that | | Was hurtful to the cause of the | but—let me state equally | er Never Before Handled Appeal Case in U. S. Court—Jealousy Against Fraenkel, Pollak Shown he was advised by the I. L. D. that it had once more retained Mr. Wal- ter H. Pollak, eminent. constitu- tional lawyer who had argued the first appeal in the United States Supreme Court in the Scottsboro case succesfully, to argue the pres- ent appeal in that same court-n collaboraton with Mr. Osmond K. Fraenkel, The International Labor Defense has a two-fisted policy of defense: widest mass protest defense plus best legal defense. Its idea of best ~ legal defense is to retain the -most competent lawyer for the partic- ular job at hand, When it needed an attorney to argue the appeal in the United States: Supreme Court it retained Mr. Pollak; after, he had won the appeal. there and it was faced with the necessity of. selecting a trial lawyer, it selected . Mr. Leibowitz; when once more it. was faced with an appeal to, the highest court in the land, it again | selected Mr. Pollak, this time in collaboration with Mr. Osmond K. Fraenkel, chief counsel in charge of the appeal, who bears an out- | standing reputation as a consti- | tutional and appeals attorney. ‘The International Labor Defense was not concerned wth the social, po- litical, or economic views of the attorneys that it retained; it only sought an outstanding man for the particular job that had to be done at a particular time. The Inter- national Labor Defense well know that Mr. Samuel S. Leibowitz had never argued an appeal to the United States Supreme Court in his life; it did not propose that he gain. his first experience at the expense of the Scottsboro boys, to whom it was a question of life or death, The reaction of Mr, Samuel 8, Leibowitz was first to announce nis withdrawal, but he had already sént emissaties to sign up- the defendants, and then fotiowed’ the barrage of criticism against the I. L. D, for its propaganda; and when that charge, coming from ‘the’ lips of a man who had known full well and was éntirely familiar with the campaign of the International Labor Defense waged before he | came into the case and during the year and a half that he was in it, | fell flat, he turned to personal ac- |cusations and insinuations age’nst the attorneys for the I. L. D. and | the I. L. D. itself, charging them with negligence. In the light of | the foregoing this charge also fails to hold water. I want to conclude, however, with a matter which I have purposey left to the end because I think it is of the most vital importance. Mr. Chamlee, Mr. Leibowitz, and the Amsterdam News seem already to have agreed that Haywood Pat- | terson must and will lose his ap- | peal; that he is doomed to certain |death on December 7th. This | smacks of desertion, perhaps worse. | Already they are preparing an. j alibi, namely, the fault lies with the ILD. and its attorrieys, an |explanation that will stand the southern ruling class in good étead. | Alabama would like nothng better than to make a burnt’ offering of Haywood Paterson to the damnable theory of white supremacy and then pour oil on troubled’ public opnion by making a gesture of generosity and condemning the others to life imprisonment, and perhaps even giving’ tess than lifé to a couple of the defendants. The demand of the working class of the world, black and white; yellow and brown, must be the unconditional freedom for all of the Scottsbor boys. e ‘Thirty-nine days remain. It is not yet too late. “Let the. voice of mankind be heard. Osmond Fraenkel Demands Amsterdam News Retract . False Charges About Appeal LL.D. Attorney Calls Despicable’ and Holds - Leibowitz Allegation Newspaper Responsible Blasting all charges that the International Labor De- fense had neglected to act at the proper time in filing the Scottsboro appeals to the Supreme Court as “unquali- fiedly false,” Osmond K. Fraenkel, leading attorney re- tained by the I, L. D. in the « the Harlem Amsterdam News pub- ligly retract this charge or he held responsible. : Pointing out that every step taken by the LL.D. in its filing of the appeals was based on tele- grams from either Samuel Lei- bowitz or George W. Chamiece, both of whom had been retained hy the LL.D. mpriier in the case, and who had dropped ow: of the €as4 recently, Fraenkel declared that the LL.D. has acted with “all posrible specd.” “For those lawyers who were as- _ Seciated with me during all these > aha now to comeforward and | r charges to which you give! x oi ase, yesterday demanded that Public circulation without endeav- oring to find out from me what the true facts are is despicable on their yours,” Fraenkel declared in his si ent, the full text of which | follows: Fraenkel Demands Retraction i Both Mr. Chamlee and Mr. Lesi- e, October 29, 1934. | howitz relied upon the +udge’s sr Amsterdam News Company, | statement and when tovard toe “2293 Seventh Avenue, “New York, N. Y. “Gentlemen, | “My attention has been called to MOH a part and unjustifiable on | | various articles about the. Scotts- | boro-case in your issue of Saturday, | October 27, 1934, in whieh refer- jence is made to me and charges are made that I was negligent in my handling of the appeal in this case. Such statements are unqual- | ifiedly false and I shall hold you | responsible for the same, | “I further demand that you pub- | lish a retraction and apology in |your next issue, and that you state |the true facts, which are as fol- lows: a | “Both Mr, Chamlee and Mr. Let- | bowitz were retained in this case | by the International Labor Defense | long before I was in any way con- |Nected with the case. They were | both present at the trials before | Judge Callahan in Decatur; I was | not. On December ,1, 1933, Mr. Lei- | bowitz requested the Judge to give | him sufficient time to file motion for a neW trial to enable him to | get stenographer’s minutes. This |the Judge declined, stating that | Mr. Leibowitz had thirty days tn! | Which to file such motion. You | will find this incident reported in | the New York Times and the New York Tribune for December 2, 1933. end of December, 1933, 2° was re- | quested to take charge | tion for a new trial I | of these facts. Unqualified "Alsehood f the mo- informed “As late of Da&ember 28, 1933, s Mr. Chamlee was of the same opin- jon for he then wired Mr. Brodsky in New York that the motion in the Patterson case had to be filed on the 29th. It was filed on the 29th, Not at that time nor at any other time during the proceedings which followed did Mr. Chamlee or Mr. Leibowitz ever suggest to me that the motion should have been filed earlier. As a matter of fact, according to the contention raised by the State, the last day for fil- ing the motion was December 23rd, which was before I was retained. Any statement, therefore, by any- one to the effect that the respon- sibility for the failure to file the motion before the 23rd can be laid at my door is an unqualified false- hood. In this connection I also wish to call attention to the fact that Mr. Chamlee had for years practiced in the Courts of Alabama, whereas I ‘aad not practiced there. Pecularities of local law were, therefo.€, within his knowledge, not within mine. “after the motion for a new trial was filed, a request was made on Judge Callahan for an adjuornment in accordance with the suggestion he had made in open court on Dec. 1, 1933, that the motion might be adjourned so as to give us an op- portunity to get the minutes. Twice he granted such adjournments, At no time, eithér on Dee. 1 or on the occasion of the adjournments, were there protests from the At- torney General of the State of Ala- bama. For the first time on Feb. 24, 1934, the date finally set for the argument of the motion, did the Attorney General claim that the motion had been filed too late. His contention in this respect was accepted by the Judge, who ruled that regardless of what he had ¢arlier said he had no power to grant an extension beyond the term of Court which expired on Dec, 23. No claim was made at that time by Mr. Liebowitz or Mr. Chamlee that the delay was in any respect due to my fault or that of the International Labor Defense, and they both continued thereafter to work with me and with the In- vernational Labor Defense in the Prosecution of the appeal. Date for Bill of Exceptions “Under Alabama law bills of ex- ception must be filed either ninety days after the denial of a motion for new trial or ninety days after the probable denial of our motion by Judge Callahan, It was only when the motion wes struck out that the necessity. for immediate action arose. There was some dis- cussion at the time between Mr. Chamle and myself as to whether the ninety days ran from the ver- dict, which was rendered on Dec, 1, or whether the ninety days ran from the sentence which was rén- dered on Dec. 6, It was my opin- jon then expressed that neither event was controlling but that the controlling event was the entry of judgment. We both examined the Clerk’s minutes in Decatur and came to the conclusion that judg- | mnt had been entered-on Dec. 6. in this respect we were corrobora- ted by the written motion of the Attorney General himself who, in moving to strike the motion for new trial, said: “That this Court no longer has jurisdiction, power or au- thority, over the judgment ren- dered in this cause on the 6th day of December, 1933.’ “We, therefore, concluded that we had until March 6 in which to file the bill of exceptions. The prepa- ration of the bill of exceptions was a task of the first magnitude since it involved the turning into narra- tive form of over one thousand pages of testimony. That task I on the train in Decatur on Satur- day afternoon, Feb. 24, 1934, and continued working into most of the night un‘il my arrival in New York, telephone to have other people in New York work on other portions of the record. Most of the ma- terial was placed in the printer's hands on Monday morning, Feb. 26, and all of the rest of it reached the printer during that day. It was found that to complete the task was commenced the moment I stepped | eval In the meantime I arranged by | "beyond the capacity of a single printer, so part of the work was let out to two other printers. fort was made to get the bill of ex- ceptions in the Patterson case to Decatur by March 1, so that if the date of verdict was to be taken as the important date we would never- theless have the bill of exceptions filed in time. A completed copy of the bill of exceptions in the Pat- terson case was ready late on Wed- nesday, Feb. 28, and was sent by aeroplane to a lawyer in Birming- ham, who was prepared immedi- ately upon its receipt to motor to Decatur to file it. Unfortunately the aeroplane had an accident and did not arrive, so that it was im- possible to file this bill of cxcep- tions on March 1. It, together with the bill of exceptions in the Norris case, was filed on March 5 within the ninety-day period calculated from the day of judgment as sol- emnly recited by the Attorney Gen- Chamlee and Leibowitz Informed “No claim was made by the At- torney General that the bill of ex- ceptions was filed ‘oo late until on May 25, 1934, just before the argu- ment the Attorney General made @ motion to strike the bill of excep- | tions. Mr. Leibowitz and Mr.Cham- | An ef-| doomed to. failure. No claim was |then made by etiher of them that there had been any negligence. Ins | deed they had been at all times in- formed of everything that had been done. The only difference . be- tween their position and mine wa: that I did all the work. “Nevertheless, the Supreme Coutt of Alabama, disregarding all of the above facts, and all the argumen‘s which I made, struck out the bill of exceptions. I do not believe that _ the Supreme Court of the United States will permit such tac'ics to pass unrebuked and such injustice to remain uncorrected. If, however, they do so the responsibility must be upon the authorities and couris of the Sta‘e of Alabama. In any case, the original responsibility for relying upon Judge Callahan’s word cannot be placed upon my shoul- ders, for I had no part in it and no power to correct it. The bill of exceptions in these cases was pre+ pared, having in mind its length, with all the speed that was pos- sible. For those lawyers who were associated with me during all thesé _ times now to come forward and make the charges to which you- gave’ public’ circulatiori. without en- deavoring to find out from me what were the true facts is’ despicable on their part and unjustifiable on lee, who. were both in court on that occasion, agreed with me that this attempt on the part of the Attor- ney General was shameful and was yours, ‘ “Very truly yours, “OSMOND K. FRAENKEL.” Criminal Attorney | | .