Glasser v. United States
Glasser v. United States, 315 U.S. 60, was a landmark decision of the US Supreme Court on two issues of constitutional criminal procedure. Glasser was the first Supreme Court decision to hold that the Assistance of Counsel Clause of the Sixth Amendment required the reversal of a criminal defendant's conviction if his lawyer's representation of him was limited by a conflict of interest.
Further, Glasser held that the exclusion of women from the jury pool violated the Impartial Jury Clause of the Sixth Amendment, but declined to reverse the other two convictions on this ground for technical reasons. Glasser is the first majority opinion of the Court to use the phrase "cross-section of the community". Glasser was also the first jury discrimination case to invoke the Sixth Amendment.
The facts of Glasser were unusual as well. According to a contemporary Chicago Tribune article, it was "the first time federal employees here have been charged with tampering with federal court justice". The five-week trial involved more than 100 witnesses, more than 4,000 transcript pages of testimony and argument, and 228 exhibits.
Background
All of the Court's prior jury pool discrimination cases had involved the exclusion of African-Americans and been litigated under the Fourteenth Amendment's Equal Protection Clause. The Court had come the closest to articulating a "fair cross-section of the community" doctrine in Smith v. Texas. There, the Court stated: "It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community."Daniel D. Glasser and Norton I. Kretske were Assistant United States Attorneys in the Northern District of Illinois, specializing in liquor and revenue offenses. Glasser and Kretske solicited bribes from defendants under indictment, or soon to be indicted. Glasser and six other assistants resigned on April 7, 1939, during the tenure of U.S. Attorney William Joseph Campbell. According to Campbell: "Mr. Glasser has the best record of convictions of any one in this office and his conviction record in alcohol cases is the best in the entire country. Since I have been in office, Mr. Glasser has prosecuted ninety-nine cases and lost only one. He hasn't lost a jury case in three and a half years."
Prior history
District Court
Indictment
U.S. Attorney Campbell presented the case to the grand jury personally. Glasser, Kretske, Alfred E. Roth, Anthony Horton, and Louis Kaplan were indicted in the United States District Court for the Northern District of Illinois on two counts of a bribery conspiracy on September 29, 1939. Glasser and Kretske were former Assistant U.S. Attorneys; Roth was a defense attorney representing the bribe payors in the majority of the cases alleged to be fixed; and Horton and Kaplan were "go-betweens" for the bribes. Horton was an African-American bail bondsman; Kaplan was a purveyor of untaxed liquor. The allegations were that the prosecutors either agreed to recommend the dismissal of charges or ensured that the grand jury would not return an indictment. The maximum authorized sentence under the charges was two years imprisonment and a $10,000 fine. All five made bail of $1,500 each.Prosecution's case
The trial began on February 6, 1940 before Judge Patrick Thomas Stone, of the Western District of Wisconsin, sitting by designation. The prosecution's opening statement was delivered by Martin Ward, the chief of the criminal division. Defense attorney William Scott Stewart's opening statement argued that Glasser and Kretske were set up by E.C. Yellowly, the head of the alcohol tax unit. Stewart was the leader of a "battery of high priced defense counsel."The government's first witness, U.S. Attorneys' Office clerk Gordon Morgan testified that Glasser had suggested that Sidney S. Eckstone be appointed foreperson of a grand jury that returned only eight out of twenty indictments and that Glasser and Eckstone had conferred frequently. Another prosecution witness, illegal distillery landlord William F. Workman, testified that Capone-affiliated Louis Schiavone had posted approximately $1,000,000 in bail bonds.
On the sixth day of trial, alcohol tax agent Patrick Donoghue testified that, in a case that Donoghue had investigated, Glasser persuaded a grand jury to reverse itself after returning an indictment by placing the matter on the pending call indefinitely. Another government witness, bootlegging handyman Ralph Sharp testified that he had paid Kretske $250 in order for Kretske, as prosecutor, to recommend that the charges against him be dismissed. Frank Hodorowicz, another bootlegger turned government witness, testified that he had paid Kretske $1,300 to recommend the dismissal of two cases and was convicted in the third case after he refused to pay $1,000. After he was indicted the third time, he testified, Glasser declined to intervene on his behalf, saying: "You're going to jail for five years; I can't do anything about it. For all the money in the world I couldn't help you. This isn't an ordinary case. Agents are in town from Washington."
Still another, Walter Kwiatkowski, testified that he paid Horton $600 to have the case against him dropped where Glasser was acting as prosecutor. And another, Victor Raubunas, testified that he twice paid bribes to Kretske in cases that Glasser was handling. Mae and Anthony Jurkas, two small-time bootleggers, testified that Glasser declined to prosecute them in exchange for the name of their bootlegging boss.
Bootlegger Nicholas Abosketes and his accountant William Brantman testified that Abosketes transferred $3,000 to Brantman that was paid to Kretske. Alexander Campbell, an Assistant U.S. Attorney from Indiana testified that Roth had offered him a bribe in a bootlegging case, saying: "That's the way we handle things in Chicago." The government's final witness, alcohol tax investigator Thomas Bailey, testified that Glasser had repeatedly delayed a grand jury in a case he was involved with.
The government rested its case on February 26. Judge Stone denied the defense's motion for a directed verdict.
Defense case
Three judges testified as character witnesses: John P. Barnes on behalf of Glasser, Kretske, and Roth; Charles Edgar Woodward on behalf of Glasser and Kretske; and state judge John F. Haas on behalf of Kretske. Kaplan and Horton both took the stand, denying that they ever paid money to Glasser or Kretske. Two defense attorneys, Henry Balaban and Edward J. Hess, who had also defended clients in cases the government's case-in-chief had alleged to be fixed, denying paying bribes to Glasser or Kretske. Glasser's testimony took three hours, as he was cross-examined individually about every single case that the government had alleged to have been fixed.The defense rested on March 4, after five weeks of trial. Assistant United States Attorney Francis McGreal delivered the prosecution's closing argument. Stewart and George Callaghan closed for Glasser and Kretske; Hess for Kaplan; Cassius Poust for Roth; Ward concluded the government's argument. Stewart's closing focused on the credibility of the prosecution's witnesses, many of whom had been transported from prison to testify. Stewart urged the jury not to take the word of "crooks and convicts."
Conviction and sentencing
The jury retired at 3:30 p.m. March 7. At 11:30 p.m., Judge Stone ordered the jury to continue deliberating through the night. The jury returned at 7:20 a.m. March 8, after 16 hours of deliberation; all five were convicted of a conspiracy to defraud the United States. For several hours, the jury had been deadlocked 11 to 1 for conviction, with one female juror as the holdout.Judge Stone denied the defendants' motion for a new trial. Glasser and Kretske were sentenced to 14 months imprisonment. Roth was fined $500; Horton was placed on two-years probation with a suspended sentence of one year and one day. Kaplan was sentenced to 14 months imprisonment, failed to surrender on June 28, and was captured on August 1.
Revenue department special intelligence agent Clarence L. Converse had observed the entire trial with an eye towards a follow-on tax prosecution. On June 3, Judge Philip Leo Sullivan sentenced three of the government witnesses in the trial to probation.
Seventh Circuit
Glasser, Kretske, and Roth appealed to the United States Court of Appeals for the Seventh Circuit. Oral arguments were heard on October 17 before Judges William Morris Sparks, Walter Emanuel Treanor, and Otto Kerner, Sr. The Seventh Circuit, in an opinion by Judge Kerner, affirmed their convictions on December 13, 1940. "On oral argument the principal point stressed was that the evidence failed to sustain the verdict of the jury, although other points were raised in the briefs."The defendants argued: that the indictment should have been quashed because of the absence of women from the grand jury; that the indictment was not returned in open court; that the indictment was duplicitous, inconsistent, and vague; that there was insufficient evidence to support the verdict; that the trial judge should have granted a continuance, rather than appoint Stewart to represent Kretske; that Roth should have been severed from the other defendants; that the reports of the Alcohol Tax Unit were hearsay; that the two government exhibits not admitted into evidence were sent to the jury during its deliberations; that Glasser had been cross-examined on matters not pertinent to the charge and not within the scope of his direct examination; that the cross-examination of U.S. Attorney Campbell had been unduly restricted; that evidence beyond the scope of the bill of particulars had been introduced; that there was insufficient corroboration of the accomplice testimony against Kretske; that certain testimony of Alexander Campbell was erroneously admitted; that the admission of various prejudicial evidence had the cumulative effect of denying the defendants a fair trial; that the trial judge's cross-examination of witnesses and other comments crossed the line into advocacy; and that the trial judge should have granted a new trial because of the exclusion of women from the jury pool.
Former United States Attorney General Homer S. Cummings petitioned the Supreme Court for certiorari, which was granted on April 7, 1941. Ralph M. Snyder also represented Glasser before the Supreme Court. By this time, J. Albert Woll was the U.S. Attorney in the Northern District.