The Judge's Opinion

A graduate of Harvard and the Harvard Law School who served as secretary to both Judge Augustus Hand and Judge Learned Hand, and from 1935 to 1937 as special assistant to the Attorney General of the United States, JUDGE CHARLES E. WYZANSKI, JR., was appointed to the U.S. District Court of Massachusetts in December, 1951.

THIS court has all the evidence necessary and proper to enable it to decide whether Worcester has violated the conditions of his probation. And this court is entirely clear, on grounds to be recited, that Worcester is not now in violation of his probation; and the complaint, filed by the District Attorney, seeking revocation of probation should be, and hereby is, dismissed, without prejudice to the right of the District Attorney at any future time upon new evidence, or upon failure of Worcester hereafter to cooperate with the authorities denominated in the probation order, to file a new complaint.

Worcester’s testimony before the grand jury and later in the office of the United States District Attorney falls into three main parts.

First, he identified former members of the state legislature, a former candidate for the Republican nomination as governor, and a present member of Congress as recipients of what may, with some euphemism, be called the Worcester Bounty.

Second, he stated that he gave to Mrs. Norton at her home, while Callahan was there, cash, which Mrs. Norton put into Callahan’s pocket in his coat hanging in the hallway.

Third, Worcester denied that he had any other knowledge of consequence as to who were the ultimate recipients of the remaining parts of the roughly $275,000 paid to Norton, or any of the rest of the Worcester Bounty

The first of the foregoing three parts of Worcester’s testimony was adequately confirmed by the testimony of the recipients of the Worcester Bounty.

The second of the foregoing three parts was the crux of the not always pin-pointed testimony, which covered many weeks. I found Worcester’s testimony before me candid, credible, complete. To be sure, he was not quite clear where Callahan’s coat was hanging. It may be that he did not observe Mrs. Norton actually slip a packet of bills into Callahan’s pocket.

But in this hearing, which is, after all, not a criminal case against Callahan, that is, which is not a proceeding in which every essential element of a crime must be established beyond a reasonable doubt, I am fully satisfied with the correctness of Worcester’s version. Cf. Holland v. United States, 348 U. S. 121; Becher v. United States, 2nd Cir., 5 F. (2d) 45 (per L. Hand, C. J.); Commonwealth v. Webster, 5 Cush. 295, 320 (per Shaw, C. J.); C. P. Curtis, The Oppenheimer Case, p. 228; Earl Jowitt, The Strange Case of Alger Hiss, p. 332.

Nor is there any reason for me to prefer the version of Mrs. Norton. She is a witness whose testimony reveals constant instances of direct falsehoods and inexplicable failures to remember. It is beyond belief, for example, that she did not see, and indeed use, any cash in the safe deposit boxes she leased jointly, first with her husband and then with her daughter. Her plainly concocted story about visits to the box to look at insurance policies and wills would not persuade any intelligent person. Her account of why she procured a larger box defies credence.

Equally clearly, there is no reason for me to prefer Callahan’s version to Worcester’s. It is true, of course, that Worcester might conceivably seek to gain his own freedom by implicating an innocent man. But Worcester does not appear to me to be a Jonathan Wild, or a seeker after Naboth’s vineyard. He is a most reluctant source of infamous information about others. Sitting, as he has, month after month in this courtroom, during first a jury trial and later a revocation of probation proceeding, he has completely persuaded me of his decency.

Callahan’s flat denial of the claimed incident at Mrs. Norton’s home is unconvincing. Callahan from the outset has shown a want of candor about his relations with the late Francis Norton and members of his family.

No one who reads in full Callahan’s testimony, first before the petit jury and then in these revocation proceedings, would care to stake much on Callahan’s oath.

The petit jury was hardly given the same impression that the revocation hearings give of Callahan’s familiar relations with, and interest in, Norton, his wife, and his son. I unhesitatingly stamp Callahan as an untrustworthy witness. And I accept Worcester’s story of the episode at Mrs. Norton’s home.

As to the third part of Worcester’s testimony before the grand jury and before U. S. District Attorney Richardson, I also believe Worcester. The tendency of an otherwise decent man, like Worcester, when he gets into a sordid racket of extortion, bribery, and corruption is, as much as possible, to look the other way as his hand stretches forth to disburse a bounty. Except for the episode in Mrs. Norton’s home, Worcester did not know in that kind of detail, with that kind of observation required of a witness before he can effectively testify. He did not want that kind of knowledge. He never had it. He cannot legitimately invent it. And even if, with a battery of detectives and investigators, he had tried to discover the facts, he would have had as much difficulty as the District Attorney has had in this case.

WORCESTER being entitled to continue on probation, is there anything more this court should say? In my view, the bench and the bar are entitled to a somewhat broader opinion, trying broadly to assess the value, if any, and the fruits, if any, of the revocation proceedings, now brought to an end.

It is legitimate and desirable to bring out in public such matters as do affect a court’s determination whether to revoke probation. High policy and severe consequences are involved. Correct determination is more likely if the court is subject to contemporaneous observation. In re Oliver, 333 U. S. 257, 270; Cowley v. Pulsifer, 137 Mass. 392, 394 (per Holmes, J.).

The inquiry into Worcester yielded as byproducts a deeper public interest in, and concern about, many topics which are worth listing.

Under the present system does the Bureau of Internal Revenue follow sound procedures to trace the payment and receipt, in cash, of large sums often falsely claimed as deductible items from gross taxable income, or falsely omitted from accountable gross taxable income?

Is it incumbent upon the legislative or executive branch of the government, by statutory change, by administrative ruling, by adoption of practices in the Federal Reserve System, or otherwise, to require every bank to report to some central authority each large withdrawal of cash in bills, together with such explanation (e.g. payroll purposes) as the withdrawer gives?

Would this be an improper invasion of privacy, or is it in fact no more than often has been imposed on bankers and their clients in the interests of national security or of preserving the stability of the banking system against foreign or other withdrawals?

Is it more burdensome or intrusive to require such quasi-confidential disclosures by administrative means than by the regular statutory reporting characteristic of wage, dividend, and other payments relevant to income tax matters? Or than by the open court processes upheld by Judge Learned Hand in McMann v. SEC, 2nd Cir., 87 F. (2d) 377? See also Bowles v. Shawano Nat. Bk., 7th Cir., 151 F. (2d) 749; Wigmore, Evidence (3rd ed.), Sect. 2286.

Upon what basis was Worcester singled out for prosecution? Can it be true that of the successful bidders for contracts with the state, Worcester alone paid bribes and took them as deductions from federal income tax?

May it be that the report on Worcester came from a bank which was properly dismayed to find that Worcester was reassigning to another an account theretofore assigned to it?

Could it be that the bank knew no other contractors equally guilty of income tax evasion? Doesn’t the landlord almost always know when the tenant runs a gambling casino?

And once informed of Worcester’s subjection to extortion, and Worcester’s improper deductions of bribes, why did the Internal Revenue Service stop its scrutiny, if it did stop, before checking all reputable firms of engineers?

What sort of responsibility have the press and other media of communication displayed in reporting this case? Can it truly be said that with a high standard of detachment they have told the public all the court evidence that was discreditable, no matter whose ox was gored?

Did they report the testimony that in their own press contractors inserted advertisements which served no legitimate purpose of contractors but, so far as appears, could have had as their objects only the glorification of state officials of something less than perfect purity and the increase of advertising revenues of media which might thereafter be friendly to such officials?

Did they recite that Beal and his firm, Public Relations, Inc., both allegedly engaged in public relations, or in “putting out fires if fires occurred" (an eventuality which seems never to have occurred), apparently received money not only from Worcester but from a public utility?

Was the press aware that a news report of that extraordinary expenditure by a company having its own normal public relations staff and its own regular advertising agencies might force the Department of Public Utilities to slough off its indifference and start an inquiry about some friends and patrons of the press?

On the whole, except for a commendable uncovering of the details of how many state legislators are currently serving as agents for fidelity, bonding, and other insurance companies, how much has the press thought of itself as the protector of civic integrity?

How has the press earned the high praise of Mr. Justice Robert H. Jackson, who said that even more than the courts they could be the guardians of liberty, the sentinels who watch for the capricious and the corrupt, the arbitrary and the autocratic? (See Supreme Court in the American System oj Government, pp. 81—82.)

How far has the bar initiated reform based upon its daily experience with the sufferings its clients have undergone at the hands of a network of corruption? Were sophisticated lawyers unaware, until this case began, that to secure certain types of public business a contractor had to get his performance bond, or his materialman’s bond, or his bond for wages, or his trustees’ bond from a relative of a judge, or of a public official, or of a legislator?

Has there been no way to expose this system, whereby the favored insurance agent receives cash for nothing more than a telephone call and a few details passed on to the fidelity or insurance company?

Is the only method by which this venal system will be supplanted a public insurance system modeled on other governmental insurance systems?

Have the private interests which professedly care about the capitalist system no awareness of what kind of free enterprise they have been fostering?

Do they not realize that the people will smite them when they see what this corruption costs in taxes, and, more important, in trustworthiness of judges, legislators, and executives?

BUT it will be said that die questions just put are no business of a judge. He is not to be a common scold. Nor is he to use his place to push before the public his name, his views, his personality.

If he does so, will it not be believed that, not content to be a robin in his own back yard, he aims to be a Washington eagle screaming for carrion — a vulture, without song or sweetness, seeking a national audience?

I am not unmindful that just such charges have been and will be made. And I am not unaware that no humble disclaimer of egoism and ambition will be acceptable in all quarters.

There will be those who say that in no way does pride more clearly manifest itself than in a pretended humility. Confession of error is one of the most conceited forms of self-aggrandizement.

But even if one is to be charged with vanity, with absence of taste, with lack of grace, with lust for higher office, is it not time to sound a clarion? Another will blow it better. But it is worth something to prove that the trumpet can be blown. And it is more important, far more important, to give to the grand jury, to the District Attorney, and to those vested with broad investigatory powers the sense of public support.

“To do justly, and to love mercy, and to walk humbly with thy God” is a command which sometimes can be fulfilled only in a spirit of righteous indignation.

The hearings are terminated.

All witnesses are excused.

The probation of Worcester is continued.