BY HEATHER E. WILLIAMS
ARIZONA Behind the Headlines, Beyond Jail attorney MAGAZINE Jencks Act Materials 2005 Writing Competition
awyers can work in many statements by government witnesses testify- strike, Jencks remembers his family pre- practice areas, and knowing ing in criminal cases must be produced to pared food baskets for striking workers. It one area rarely means you the defense. was an example he followed throughout know another. But there are Here, the author describes the case and his life. Lsome case or statute names that are famil- its remarkable parallels to a controversial After graduating from high school, iar to virtually all attorneys—Miranda time in U.S. history. Jencks worked for John Deere, putting comes to mind. himself through the University of In this article, the author provides the Colorado, earning a Bachelor’s of Science background of one of those familiar names. El Palomino in Economics in 1941. World War II The so-called Jencks Act, codified at 18 Clinton Jencks was raised to give of him- decided his next career move. He joined U.S.C. § 3500, was passed into law in self to others. Born in Colorado Springs the Army Air Force. Trained to be a nav- response to the U.S. Supreme Court deci- in 1918, he was the youngest son of a igator, he was assigned to a B-24 sion in Jencks v. United States, 353 U.S. postal worker with a strong social con- squadron in the Pacific. By the end of the 657 (1957). It sets out when and how science. When local mine workers were on War, the U.S. government awarded him
Heather E. Williams is a native Tucsonan. She earned her undergraduate degree summa cum laude in General Studies from Pittsburg State University, Kansas, and her J.D. at the University of San Diego Law School. She was in private practice with Michael Meaney in San Diego for two years before returning home. She worked for the Pima County Public Defender for six years, and has been an Assistant Federal Public Defender for almost 11 years, where she now supervises the office’s trial lawyers and primarily its Immigration Unit. She teaches at the National Criminal Defense College in Macon, GA, and has spoken at seminars around Arizona and the United States. She plays cello, does Japanese brush painting and enjoys stitching crafts. She wishes she could bicycle and do yoga more. She is married and has four kids, two cats and two dogs. Behind the Headlines, Beyond Jail is a project the author has been working on for about 1-1/2 years and includes almost 30 cases, all of which, like the Jencks Act and Miranda warnings, are a defendant-titled part of the criminal process. She has met wonderful people and impressive and inspiring lawyers in her research. She gives special thanks to the following people: Alan Wagman, Dr. Clinton Jencks, Dr. Mark Thayer, Mrs. John McTernan, John Samore, Michael Meaney.
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four battle stars, seven air medals and the ing Jencks, who was imprisoned in soli- Matusow joined the United States Distinguished Flying Cross. tary confinement for 16 months, the Army in 1943 at age 17. He eventually A civilian again, Jencks found work as duration of the strike. In their stead, the was sent to Germany, assigned as a prison an acid plant operator with a smelter in miners’ wives and female relatives guard. Matusow used his time there to Denver. That trade led him to member- marched, cursing replacement workers, search for his brother, whose plane had ship in the International Union of Mine, standing up to the owners’ intimidation. been shot down in Europe. Through Mill, and Smelter Workers (Mine–Mill). Their perseverance won out, and the information gained in German prisoner Spare time was devoted to serving on the mine conceded to demands, improving interviews, Matusow followed directions American Veteran’s Committee. the miners’ conditions. to his brother’s likely grave. Matusow was About this time, in 1947, a mostly The strike’s success inspired a movie discharged in 1946, claiming a back Republican Congress, over President filmed in 1953 titled Salt of the Earth. It injury, and returned to the United States, Truman’s veto, passed the Taft–Hartley used blacklisted technicians and actors desiring, in his own words, an “identity.” Act. It was a governmental effort to aid (including Will Geer, who later starred in The following year, Matusow joined business and an attempt to curtail the The Waltons television show), a Mexican the American Youth for Democracy, an powers that unions had gained during national—Rosaura Revueltas—in the arm of the American Communist Party, and after World War II. A section of leading female role, the miners them- feeling it had the same esprit de corps he Taft–Hartley permitted the President to selves, and Jencks and his then-wife had experienced in the Army. He bumped direct the Attorney General to file an Virginia. Upon its release in 1954, the from job to job, losing them through dis- injunction to prevent a continuing strike. film became the only movie banned by honesty or quitting from boredom. One Another portion required union leaders the U.S. government. Revueltas was job was to enroll Communist Party mem- to complete National Labor Relations afterward arrested for subversive activity bers—his lists included fictitious names. Board (NLRB) Form 1081 stating they for her participation in the movie and He had work at the “Jefferson School had never been and were not now a deported for life. (For another local Bookshop, but was fired for stealing member of the Communist Party. impact of the movie, see the sidebar on p. books.”1 Another store fired him for ring- That same year, Jencks was asked to 31.) ing up as a 20-cent purchase a $5.20 and agreed to become a union official In Salt of the Earth, one scene has book, pocketing the $5. Selling Liberty with Mine–Mill. As required by Jencks at the dinner table with the leading Book Club subscriptions, Matusow did Taft–Hartley, on April 28, 1950, Jencks miner, Ramon Quintero, played by real not turn in some of the money he had went to Texas and signed NLRB Form miner Juan Chacón, and a few others. received.2 1081, avowing he was not then a member Jencks asks Chacón if the photo on the Matusow once claimed, “I would do of the Communist Party, avowing he had wall is that of a relative. anything for money.”3 never been a communist. Chacón replies, “That’s [Benito] In February 1950, Matusow began Jencks worked with miners at several Juárez, the father of Mexico. If I would- working for the Federal Bureau of mines throughout New Mexico. Most of n’t know a picture of George Investigation as a paid informant to testi- the miners at the Empire Zinc Mine in Washington, you would say I was an fy against communists. A year later, the Hanover, N.M., were Hispanic and nick- awfully dumb Mexican.” Communist Party kicked him out as an named Jencks “El Palomino” for his When the others try to stand up for enemy agent, but that did not end his blond hair and blue eyes. Hanover was a Jencks, Jencks says, “No, he’s right. I’ve usefulness to certain government work- union town. The land where families had got a lot to learn.” ers. lived for generations was now owned by He had no idea how much or what. Matusow met Roy Cohn, then an the mine. Conditions in and out of the This was the McCarthy Era, and Clinton Assistant United States Attorney in mine were worse for the Hispanic workers Jencks had come to the government’s Manhattan in 1952. At Cohn’s behest, than for white workers in other mines. attention. Matusow testified about “Reds” in the Few homes had interior running water. Boy Scouts, the Young Men’s Christian Safety was secondary, and hours were Association, and the U.S. Army, as well as long. Witness for the Persecution in unions, Hollywood and politics. With Under Jencks’ counsel, Empire Zinc Enter Harvey Matusow. (The theatric Cohn, Matusow practiced his testimony, Mine workers organized and struck. The Matusow would have appreciated that loving the battle of cross-examination. mine went to court and gained an injunc- introduction.) Born in the Bronx in 1926 This newest witness also helped to get tion to keep the striking miners from to Russian-immigrant Jews, Matusow was Sen. Joseph McCarthy reelected in 1952. picketing. A few defied the order, includ- also a youngest son. As a paid confidential informant,
30 ARIZONA ATTORNEY APRIL 2005 www.myazbar.org The Labor of HISTORY mine and mine alone—I was in my glory. This was big league stuff, and I was the star. Without me there was no game.”5 That testimony was bolstered by J. W. Labor strife can leave deep and long-lasting effects Ford, a member of the New Mexico on a community. Such struggle in New Mexico led, Communist Party since 1946. He also was a paid informant for the FBI, begin- among other things, to the making of the 1954 ning in 1948. Ford claimed Jencks attended Communist Party meetings in movie Salt of the Earth. And that production had an New Mexico. effect in Arizona. Trial Jencks was indicted April 20, 1953, in United States District Court, Western Salt of the Earth Labor College was founded in District of Texas, El Paso, just a week before the statute of limitations ran. He 1993 in Tucson. Some in its founding group were pled not guilty to two counts of making false statements to a government agency, veterans of the copper mines and even of the movie’s the NLRB. Four assistant U.S. attorneys prosecut- production. The school describes itself as ed Jencks. For his defense, the union and “a school for working people … . It’s public donations aided Jencks in hiring John McTernan of Los Angeles. a place to come together and learn McTernan had moved west after col- lege in Amherst, Mass., and Columbia about the political, economic social and Law School in New York. Admitted to the bar in California July 1942, he practiced cultural forces shaping our lives.” law for the next 53 years, successfully rep- resenting unpopular defendants and caus- es across the country. Along with his law partner of many years, Ben Margolis, More information is available online: McTernan was described by lawyer Mike Tigar as one of the “characters who www.saltearthlaborcollege.org enlivened California life.”6 Before trial in Texas, Jencks’ lawyers moved for the court to compel the gov- ernment, specifically the FBI, to disclose all the records it had on Matusow and Ford. They requested accountings of the Matusow testified against more than 200 side Taos, N.M. There, he met Jencks money paid these men, background people, swearing each was a member of and Jencks’ family. Matusow related that records and their prior statements to FBI the Communist Party. One of those 200 Jencks made a speech at the ranch con- agents. The court denied the motion, was Jencks. cerning trade unions and the peace move- finding Jencks had not made the required In the summer of 1950, Matusow ment. He testified that Jencks admitted showing that the Government actually traveled west, landing a job as a square to him he was a member of the possessed any inconsistent statements. dance caller (or attending art school or Communist Party. This last statement was At trial in January 1954, Matusow was running a pool hall or driving a taxi, a lie.4 the government’s star witness, a leading depending on what story Matusow was “When I learned that it was my testi- role to which he had grown accustomed. telling) at the San Cristóbal Ranch out- mony that was needed to indict Jencks— He observed that, during trial, he was
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paid a witness per diem, earned expert lie, himself admitting to perjury when he ran off with a senator’s ex-wife to witness fees for his testimony on how the testified that certain people were commu- Havana, creating quite the scandal. He Communist Party operated and worked nists. One chapter, “Witness for the wed 12 times to 11 different women. nights as a stand-up comic across the Rio Persecution,” was devoted to his role in One of those wives was a woman who was Grande in Juárez, Mexico. convicting Jencks. His affidavit admitting a member of the Church of Jesus Christ Jencks’ defense—in addition to trying his perjured testimony against Jencks was of Latter-Day Saints. For love, he con- to impeach Matusow and Ford without included as an appendix. verted to her faith to marry, took the benefit of any prior statements, consistent After False Witness was published, name “Job,” and settled in St. David, or inconsistent—was Jencks’ heroic war Jencks wrote to Matusow: “Welcome Ariz., a strong Mormon community in record. An all-male jury convicted Jencks back to the human race.” Cochise County. as charged within 22 minutes, before With the appeal unresolved, Jencks But the small town of St. David had no McTernan finished making his record on filed his motion for new trial in January television station, so Matusow traveled to various trial issues. The court sentenced 1955. Matusow willingly participated for nearby Tucson, where the local PBS sta- Jencks to five years’ imprisonment, per- Jencks in the new trial hearings. After four tion at the University of Arizona hired mitting him to remain free on $10,000 days of testimony in March, the judge him. In 1979, Matusow created The bond while his appeal was pending. denied a new trial, continuing Jencks’ lib- Magic Mouse Show for children, brief erty. Moments later, he found Matusow entertaining segments that were syndicat- in contempt of court and ordered him ed across the country. The show earned Matusow imprisoned immediately to serve three awards for its educational content and At that point, Matusow either had an years. Though Matusow bonded out in featured guests, including the Dalai Lama attack of conscience or simply saw anoth- five days pending appeal of the contempt who discussed nonviolence. er moneymaking opportunity. A lawyer finding, he tasted what his future held. From 1991 to 1994, Matusow was the named Nathan Witt heard that Matusow Matusow was not believed. president of Tucson’s Interfaith Coalition was reversing his earlier communist iden- United States Attorneys in New York for the Homeless and appeared in a local tifications. Witt urged Matusow to come and El Paso charged Matusow with per- production of The Wizard of Oz. He per- clean, even at risk of prosecution. jury, not for his initial testimony saying formed as Cockyboo, his clown persona. For Witt, becoming involved in Jencks and another were communists, but He said he advised Yoko Ono to show her Jencks’ battle was a continuation of his for his later testimony in which he said he art in London, which she did, and it was fight against false accusations concerning lied. He received concurrent four-year there that she met John Lennon, her communism. He had attended Harvard imprisonment terms for perjury—for future husband. Law School with Alger Hiss. Both became lying about lying. Harvey “Job” Matusow died January government lawyers, Witt with the Before and after his incarceration, 2002, of complications after an automo- NLRB, Hiss first with the Department of Matusow aspired to be an entertainer. bile accident. Agriculture and then with the State During breaks in Jencks’ case, he wrote In 1988, author Bruce Jackson inter- Department. poetry and television skits. He was viewed filmmaker Emile de Antonio. For both law school graduates, those involved in various television shows from They discussed Matusow, because they accusations were made personal in 1948. the 1950s to the 1990s—The Howdy both knew him. Jackson queried de Whittaker Chambers, a former senior edi- Doody Show, The Mike Douglas Show, P.M. Antonio on the many accomplishments tor of Time magazine—and a former Magazine. Matusow claimed. De Antonio bluntly Soviet spy—testified under Richard In his search for “identity,” Matusow said, “Well, Harvey lies about every- Nixon’s questioning before the House claimed he saw the airship Hindenburg thing.”7 Un-American Activities Committee that explode, and that he was just outside the Hiss and Witt had for years been members building when and where the World War of the communist underground. Witt left II Armistice was signed. He invented a Appeal the NLRB and became involved repre- toy called a Wheelo, a stringless yo-yo Awaiting appeal, Jencks lived in Tucson, senting Mine–Mill and its workers across employing a thick U-shaped wire attached organizing miners at the smelters in the country. to a handle, with a modified yo-yo travel- Mammoth and the Ray–Sonora mine near Matusow, the “Most Hated Man in ing around the wire. He led a jew’s-harp the Mexican border. America,” as he had become known, band in the 1960s that recorded folk But in October 1955, the Fifth Circuit wrote False Witness in 1955, a nauseating music. Court of Appeals affirmed Jencks’ convic- read because of the author’s willingness to During the McCarthy Era, Matusow tion and the trial court’s denial of the
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new trial motion, denying rehearing in ular, no matter “the dictates of our pas- December. (A month later, the same sions.” His dedication was recognized panel of appellate judges reversed when he received the California State Matusow’s contempt judgment, finding Bar’s Loren Miller Legal Services Award he had been deprived of even minimal in 1984. He lives in retirement in south- procedural requirements.) ern California. Before his case was argued in October Witt continued his battles on behalf of 1956, at the U.S. Supreme Court, those persecuted as, either correctly or Mine–Mill asked for Jencks’ resignation. incorrectly, being communists. His cases The previous December, the Court had exemplified his commitment to labor, and decided against the NLRB concerning its civil and constitutional liberties. Witt treatment of unions whose officials falsely himself was called before Congress and signed the NLRB Form 1081. Now, in asked to disclose communist affiliations of argument, when told of Matusow’s recan- certain people, a disclosure he refused to tation, Chief Justice Earl Warren said, make. He was described as a “great and “Yes, Mr. McTernan, tell us about that.” charming” man,8 and Mine–Mill’s work- Finally, in June 1957, months after ers took him into their homes. After their Roviaro decision requiring the dis- Mine–Mill merged with United Steel closure of a confidential informant’s iden- Workers in 1967, Witt continued on as tity in some circumstances, and citing counsel, retiring in 1975. He died at age Roviaro, the Court held “Justice requires 79 in New York City in 1982 after appear- no less” than the disclosure to a defen- ing in a 1979 documentary, The Trials of dant of the government reports concern- Alger Hiss. ing the government’s witnesses, for inves- tigation, for impeachment and to present Jencks a defense. The Court also found errors Precluded from labor organizing by his with several of the lower court’s jury agreement, Jencks attended the instructions. University of California–Berkeley, earning On remand to El Paso, the govern- his master’s and then his Ph.D. in eco- ment, still resistant to disclosing the FBI’s nomics. While there, he worked as a archive on Matusow and Ford, offered to teacher’s aide in the Economics dismiss the charges if Jencks would resign Department. One of his students was as a union official. He agreed. now-lawyer Michael Tigar, who has a rep- utation as an “activist” lawyer. Tigar has written on several occasions of the Where They Are Now impression Jencks made on him. Defense Counsel After earning his Ph.D. in 1964, McTernan joined with Ben Margolis to Jencks was hired by San Diego State form a firm in Los Angeles dedicated to University. He taught there until 1984 representing the unpopular and their and now serves as a professor emeritus to causes. From free speech cases in the that institution. During his tenure, he and 1950s, to representing a U.S. citizen con- Virginia divorced, and he is remarried to victed of traveling to Cuba without a Muriel. passport in the 1960s, to attacking the Jencks continues to live in San Diego. Department of Justice-promulgated “use Standing on the stoop of his house, a sign immunity” statute in the 1970s, to voic- encourages you to “Remove Your Shoes ing the position of the California State Before Entering.” Though he has not Bar in an amicus brief regarding student been well recently, Jencks is gracious to busing in Los Angeles in the 1980s, this stranger (your author) on his McTernan’s life has personified John doorstep. He is thoughtful and listening, Adams’ example of championing a comfortable in blue jeans and barefoot. lawyer’s obligation to defend the unpop- Even in retirement, Jencks is much in
34 ARIZONA ATTORNEY APRIL 2005 www.myazbar.org demand as a speaker, especially given the recent 50th anniversaries of the making and release of Salt of the Earth. As he has said at these revivals, El Palomino speaks still.
The Law Three months after the Supreme Court decided Jencks, in September 1957, Congress enacted Title 18, Section 3500, now known as the Jencks Act. The statute emasculates the Supreme Court’s deci- sion, agreeing the records should be dis- closed, but limiting disclosure until after AZ the witness has testified. AT
Resources CASE HISTORY United States v. Clinton E. Jencks, U.S.D.C., W.D. Texas, El Paso Division, Case No. 54013.
Jencks v. United States, 226 F.2d 540 (5th Cir. 1955).
Jencks v. United States, 226 F.2d 553 (5th Cir. 1955).
Jencks v, United States, 353 U.S. 657 (1957).
Jencks Act, 18 U.S.C. § 3500.
CLINTON E. JENCKS Hearing Set for Jencks, EL PASO TIMES, Jan. 28, 1955, at 1.
Hearing Set for Jubilant Jencks, EL PASO TIMES, Jan. 29, 1955, at 1.
Jencks Jury Picked; Testimony to Start, EL PASO TIMES, Jan. 12, 1954, at 1.
Clinton Jencks donated materials, MSS-137 Chicano Research Collection, Copyright Arizona State University (1994).
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E-mail from Silver City, N.M., lawyer Kastigar v. United States, 406 U.S. THE TRIALS OF ALGER HISS (1980). Alan Wagman, Subject: Final Report 441 (1972). Travis v. United States, 363 U.S. 801 on S[alt] of [the] E[arth], May 12, (1960). 2004. Letter from Mike Tigar to Kathleen Sullivan, Dean, Stanford Law School Travis v. United States, 385 U.S. 491 Human Rights Now! (Newsletter of (Nov. 26, 2002) (visited Feb. 11, (1967). the Meiklejohn Civil Liberties 2005)
Meeting with Dr. Clinton Jencks, San NATHAN WITT SALT OF THE EARTH (1954). Diego, CA, August, 2004. Brotherhood of Locomotive Firemen and Enginemen v. Anaconda Co., Steven Wagner, How Did the Notes from the Editors, 48 MONTHLY 361 U.S. 864 (1959). Taft–Hartley Come About? (visited REVIEW 6 (Nov. 1996). Feb. 11, 2005)
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