THE O. E. LIBRARY CRITIC PnblUhti moDtblj it 1207 Q St, N. W., W iikiiglin, D. C. OY The O. E. Library League VoL XIX August, 1929 No. 1 y to r lx Bub8crl;i't*nn. U nited S ta tu and forclgo. flrty M U . Single copies, (Ite cent». Issues earlier tlian Juoe, 1826; one or two copies, Ote reals; more than tiro copies, tiro rents each, single or mixed Issues, INNOCENT CRIMINALS AND CRIMINAL INNOCENTS In the April CRITIC was published a letter to lion. C. C. Young, Governor of California, from Judge Franklin A. Grif­ fin, dated January 20, 1928, appealing for justice in the case of Mooney and Billings, convicted in 1917 on the basis of perjured evidence of participation in a bomb outrage in San Francisco in 1916. It was Judge Griffin himself who presided at the trial. Notwithstanding the appeals of those directly concerned in the convictions Governor Young took no action and in November, 1928, Judge Griffin wrote a still stronger appeal, which I give below: San Francisco, Cal., November 14, 1928. Honorable C. C. Young, Governor of California, Sacramento, California. My dear Governor: When you discussed the Mooney case some weeks ago with a group of citizens at Berkeley you told us that until then you had believed Mooney and Billings guilty of the Preparedness crime. Some days afterward when you sent a message to the State Federation of Labor at Sacramento you said again that you believed them guilty. I believe that you are as anxious as any other citizen of California, to see justice done to these two men and will give serious attention to the documents in behalf of their pardon. Because I believe that, Governor Young. 1 am asking you—before you make your flnai decision —to let me know what evidence has led you to believe that Mooney and Billings really committed the crime for which they were tried and con­ victed and are now in prison. The thing that happened on Preparedness Day twelve years ago was a terrible crime, but I am sure you will consider it a terrible crime to keep in prison two human beings who were most unfairly, even crim­ inally, convicted—and that you wish to give those who believe there has been a miscarriage of justice every opportunity to meet any doubt or their innocence that you may have. Any fair-minded man who reads only the transcripts of the trials of Mooney and Billings would believe them guilty. If the testimony In these cases was honest and true then their guilt was conclusive. But subsequent revelations damned every witness who testified before me against them as perjurious or mistaken. Estelle Smith has admitted her testimony was false. The Edeaus were completely discredited. Ox- man is completely out of the case as a perjurer who also tried to suborn- perjury in another witness. John McDonald has since sworn to an affi- davit that he knew nothing about the crime. The transcript evidence Upon which Mooney and Hillings were convicted no longer exists. And because it does not exist, the trial Judge (myself), the foreman ol the Mooney Jury, eleven members of the Jury, the present district nltornuy, Captain Matheson. who had charge of the case, and every other official—except District Attorney Kickerl—now believe the convicted men innocent and are earnest advocates of their pardon. About these facts, Governor Young, there can be no two opinions, and I believe you must base your belief in the guilt of Mooney and Billings upon other evidence not known to me. At your earliest convenience will you let me know what that evidence is? I would like the privilege of considering it because I feel a deep sense of responsibility in. this case and I may be able to help in this profoundly important matter. I ur­ gently request you to give me whatever added information you may have in an early reply. I am, Very truly yours, FBAlXKm k A. GltlWIN, Judge, Superior Court, Department No. 6. Notwithstanding; this most forcible appeal to come for­ ward with the evidence if he had any, eight months have elapsed and Mooney and Billings are still in prison because Governor Young does nothing. In order to make the position of Governor Young clearer it must be explained that as was the case in the Sacco-Van- zetti affair in Massachusetts the California Supreme Court has not the power to order a release or a new trial, and can only pass upon the question whether the first trial was in good form—technically regular, so to say. If so, it matters nothing to the Supreme Court that the person sentenced to death, to life imprisonment or what not is absolutely and unquestion­ ably innocent—to prison or to the gallows he goes. Nothing can save him but a purely voluntary pardon by the governor. There is no power in the state to compel the governor to grant a pardon. To quote a few words from a letter of February 11, 1929, to Governor Young from Milton U’Ren, who acted for the District Attorney’s office at the time of the petition for a new trial for Mooney: . when a convicted person lias exhausted bis legal remedies in the courts and it thereafter develops that he is innocent, the pardoning power of the Governor becomes a part of the judicial machinery of the State to enable the person so unjustly convicted to obtain bis freedom, in other words, 1 do not believe that under the peculiar facts of the Mooney case, an appeal for a pardon *on behalf of Mooney is merely an appeal for mercy, hut upon the contrary 1b un appeal to our Super- Supreme Tribunal established by ttie State Constitution for the purpose of setting aside judgments unjustly and unlawfully obtained in the Courts of Law, Therefore 1 believe that the application in behalf of Mooney for a pardon now pending before you should be decided strictly upon the ground of his legal rights . Everything that lias been said in this letter applies likewise to Warren K. Billings. Thanks, then, to the stupidity of the California law, which does not perm it the Supreme Court to order a new trial upon the basis of incontrovertible proof that the conviction followed fiom perjured testimony, but only on some technical irregu­ larity, Governor Young is the only person who can cause jus­ tice to be done. Yet he does not do it. We may, if we wish, quibble about what constitutes a crime. Judge Griffin is explicit enough, when he writes to Governor Young: "I am sure you will consider it a terrible crime to keep In prison two human beings who were most unfairly, even criminally convicted. " Who is keeping these men in prison? Nobody but the Governor, who has had the evidence of their innocence pre­ sented to him time and time again, not only in detail, but in the forcible words of Judge Griffin and others, which are so explicit that they remove any basis for his excuse that he wants to “study the evidence.” It is not the fault of the State of California that within its limits it is a “crime” to sell a bottle of beer or wine, but it surely is its fault that it is not a “crime” in the technical sense to hold two innocent men in prison because there is no way of forcing a man who, if we accept Judge Griffin’s expression is in fact guilty of a “terrible crime”, to set them at liberty.. Everywhere it is a crime punishable with the most severe penalties to kidnap and hold in captivity any person. What is the difference in this case except that the Governor cannot be reached? These men have been proved innocent to the satisfaction of judge and jury who convicted them in the first place. Governor Young, simply because he has the power to do so, is setting himself above these; he is either appointing himself judge and jury and condemning Mooney and Billings on the ground of new evidence which he does not produce, in violation of the constitutional right of every person to a public trial, or else, knowing that he has no evidence, is keeping them in prison believing them to be innocent. As he has not so far even hinted that he has such evidence we can only draw the latter conclusion. The Blooney-liiltings Cose.—Any person interested in the details of the Mooney-Billings case can obtain a booklet containing tlie principal documents by sending ten cents to Tom Mooney Holders' Defense Com­ mittee, Box J.[75, San Francisco, Calif. Penal Notes Light on Boston Censorship.— In the city of Boston the police super­ intendent has the power to suppress any book or other publication con­ taining isolated passages which he, the great Michael H. Crowley, con­ siders as detrimental to public morals and as likely to corrupt little boys and girls, or even to touch the sensibilities of prudish and puritanical Pharisees. As a challenge to Mr. Crowley the Boston Lantern of Aprii- June prints verbatim two pages of stories from the Holy Illble which one would hardly select to read in mixed company outside a Boston bawdy- house, and delies the police to bring it to account for so doing. The Lan­ tern proposes to add to the collection in future, as a demonstration of the absurdities and contradictions of Boston censorship. The latest leal of Mr. Crowley was to suppress the sale in that town of the July issue o( that sedate magazine, .SYrtimer's, because lie regarded Ernest Hemingway's "A Farewell to Arms", highly objectionable.