352 U.S. 808 (1956)

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U.S. Supreme Court

MESAROSH v. US , 352 U.S. 808 (1956)

352 U.S. 808

Stephen MESAROSH, also known as Steve Nelson, et al., Petitioners,
No. 20.

Supreme Court of the United States

October 8, 1956

Solicitor General Rankin and Assistant Attorney General Tompkins, for the United States.

Messrs. Frank J. Donner, Arthur Kinoy, Marshall Perlin and Hubert T. Delany, for petitioners.


Less than six months ago, in Communist Party v. Subversive Activities Control Board, 351 U.S. 115, a case that raised important constitutional issues, this Court refused to pass on those issues when newly discovered evidence was alleged to demonstrate that the record out of which those issues arose was tainted. It did so in the following language:

    'When uncontested challenge is made that a finding of subversive design by petitioner was in part the product of three perjurious witnesses, it does not remove the taint for a reviewing court to find that there is ample innocent testimony to support the Board's findings. If these witnesses in fact committed perjury in testifying in other cases on subject matter substantially like that of their testimony in the present proceedings, their testimony in this pro-

    Page 352 U.S. 808 , 809

    ceeding is inevitably discredited and the Board's determination must duly take this fact into account. We cannot pass upon a record containing such challenged testimony. ...' 351 U.S. at pages 124- 125, 76 S.Ct. at page 668.

The Court, in that case over the protest of the Government, remanded the proceedings to the Subversive Activities Control Board so that it might consider the allegations against the witnesses and, if necessary, reassess the evidence purged of taint.

In this case, the Government itself has presented a motion to remand the case, alleging that one of its witnesses, Joseph Mazzei, since he testified in this case, 'has given certain sworn testimony (before other tribunals) which the Government, on the basis of the information in its possession, now has serious reason to doubt.' Some of the occurrences on which the motion is based go back to 1953. (It should be noted that the petition for certiorari was filed in this Court on October 6, 1955.) Thus the action by the Government at this time may appear belated. This is irrelevant to the disposition of this motion. The fact is that the history of Mazzei's post-trial testimony did not come to the Solicitor General's notice until less than ten days before the presentation of this motion.* It would, I believe, have been a disregard of the responsibility of the law officer of the Government especially charged with representing the Government before this Court not to bring these disturbing facts to the Court's attention once they came to his attention. And so, it would be unbecoming to speak of the candor of the Solicitor General in sub- [352 U.S. 808 , 810]

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