I.F. Stone exposes the injustice of the government's prosecution--or persecution--of a loyal citizen named Carl Marzani.
Washington, December 30
Under ordinary circumstances it is waste motion for the United States Supreme Court to grant a rehearing. The circumstances in the case of Carl Marzani are far from ordinary. This test prosecution of an obscure ex-government employee casts a lengthening shadow over past and future loyalty purges. The Supreme Court split four to four after hearing the appeal and announced on December 20, without opinion, that the ruling of the lower court had been affirmed. Affirmance flowed from the arbitrary rule that when the Supreme Court is evenly divided, the benefit of the doubt is given the court below rather than the appellant. The rule might more equitably work the other way. One dissenter on a jury is enough to block a conviction, an evenly divided court in criminal cases would seem quite as amply to indicate reasonable doubt.
The argument for rehearing in the Marzani case rests on circumstances which make one wonder whether the tie might not be resolved. In the first place, there would have been no tie had Justice Douglas taken part. For reasons unstated Douglas left the bench when argument in the Marzani case began. There are no obvious reasons why Douglas should not have participated; he was connected neither with the justice Department nor with the State Department. Had he known the court would split evenly, perhaps he would have acted otherwise.
One of the justices who did participate in the decision was out of town on a speaking engagement when the Marzani case was argued. Had Justice Jackson declined to vote on the ground that he had not heard the oral argument, the vote would have been four to three. Perhaps in view of the issues left unresolved by the tie, Justice Jackson might be disposed to grant a rehearing. Certainly if he were sitting alone in a case, he would not think of making a decision without hearing argument.
In another case decided that same day Justice Jackson had previously taken unusual steps to resolve a tie vote in the court. In an opinion admitting grave doubts as to the propriety of his course Justice Jackson had intervened to cast the vote which finally enabled the court to hear argument on its jurisdiction in the war-crimes cases. Justice Jackson, as a participant in the Nazi trials at Nurnberg, expressed some qualms about his intervention in an appeal from the similar trials at Tokyo. He hoped that by voting to hear argument from counsel for Hirota and Doihara he might convince a clear majority of his fellow-justices that the United States Supreme Court had no jurisdiction over the international war tribunals. The somewhat irregular maneuver was successful. The justice who broke the tie in the Japanese cases was the justice who created the tie in the Marzani case.
No irregularity would be required to grant a rehearing in the Marzani case. There are compelling reasons for an effort to bring about a clear decision. To let the Marzani decision stand by a tie vote is to leave unresolved the contradiction between two United States Circuit Court decisions which laid down opposite interpretations of the law the Marzani case was intended to test. The question concerns a provision of the 1944 War Contracts Settlement Act suspending the statute of limitations until three years after conclusion of the war in fraud cases. The question is whether this applies only to war contracts and similar matters in which the government was defrauded financially or can be extended to any misstatement made in dealing with the federal government where there was no financial loss, as in the Marzani case.