Mr. Justice HARLAN, with whom Mr. Justice FRANKFURTER and Mr. Justice BURTON join, dissenting.
When the Court's order denying the Government's motion to remand, and granting the petitioners a new trial, was announced by THE CHIEF JUSTICE on October 10, Mr. Justice FRANKFURTER, Mr. Justice BURTON and I dissented. We reserved our right to file an opinion stating our reasons for thinking that the Government's motion should have been granted. This is that opinion.
On 670, 671, 18 U.S.C. §§ 2385, 371, 18 U.S.C.A. §§ 2385, 371, by conspiring to advocate the overthrow of the United States Government by force and violence. The Court of Appeals for the Third Circuit, sitting en banc, affirmed by a divided vote. This Court granted certiorari.
Mr. Justice FRANKFURTER, Mr. Justice BURTON, and Mr. Justice HARLAN dissent believing the Government's motion to remand should be granted, and reserve the right to file an opinion.
On September 27, 1956, about two weeks before the case was scheduled for argument, the Solicitor General filed a motion asking us to remand the case to the District Court for a hearing as to the truthfulness and credibility of one Mazzei, a government informant and witness at the trial. The occasion for this motion was that the Solicitor General's office, some ten days before, had come into possession of information which led it seriously to doubt the correctness of certain testimony given by Mazzei in various independent proceedings, all but one of which occurred after the trial, as to his relations with Communists and the Federal Bureau of Investigation. In its motion papers the Government stated that while it still believed that Mazzei's testimony at the trial had been 'entirely truthful and credible,' his post-trial testimony in these other proceedings was such as to 'lead us to suggest that the issue of his truthfulness at the trial of these petitioners should now be determined by the District Court after a hearing.' Petitioners' answer to this motion was that, while they considered themselves entitled to a judgment of acquittal or a new trial on the basis of the Government's disclosures, disposition of the Government's motion should nevertheless await this Court's decision on the issues brought here by the writ of certiorari.
On October 8, the Court directed that the Government's motion be heard orally at the threshold of the main case. My brother FRANKFURTER, who felt that the motion should have been granted forthwith, filed a dissenting memorandum. When the matter was heard by the Court on October 10, the positions taken by the Government and the defense were as follows: The Government was not yet prepared to say that Mazzei had committed perjury either at the trial or in any of the collateral proceedings. Conceivably, the Solicitor General thought, it might turn out that Mazzei was a psychiatric case. The Solicitor General pointed out that the petitioners had not previously moved for a new trial on the grounds relied upon in the Government's motion, although much of the later information as to Mazzei was known to them at the time of their motion for reargument in the Court of Appeals. Even so, the Solicitor General felt that in the broader interests of justice it was his duty to pursue the matter as soon as it came to his knowledge that a cloud was cast upon Mazzei's truthfulness or credibility. If he had been satisfied that Mazzei was a perjurer, the Solicitor General stated, he would have recommended that this Court reverse the convictions of two of the petitioners (Careathers and Dolsen). Since he was not so satisfied, he thought the proper procedure was to remand the case to the District Court for full exploration of the truthfulness and credibility of this witness. As to the other three petitioners, the Solicitor General regarded Mazzei's trial testimony of so little importance that the trial court, even if it found Mazzei was a perjurer, would have to review the entire case against them before ordering a new trial. Petitioners' position was that if this Court was unwilling to hear the main case on the merits, it should, without more, deny the Government's motion and reverse the convictions with directions for acquittal or at least a new trial. At the conclusion of the oral argument on the motion to remand, the Court recessed to consider the matter, following which its decision denying the Government's motion was announced from the bench.