Friends,
As a pro-se defendant in numerous trials, I have filed many
motions for discovery prior to trial. And during arguments before the judge
to determine the validity of my requests for discovery, the Jencks Act would
invariably be discussed. I had no idea of the history of the Jencks Act
until I read this excellent history of judicial injustice during the 1940s and
‘50s. And like so many real heroes, Clinton Jencks is one of those
unknown people the history books ignored. Besides calling on filmmakers
to do a movie on Eugene Debs, I now demand one about Clinton and Virginia
Jencks.
Kagiso, Max
Published on Portside (https://portside.org/)
The Legacy of
Clinton Jencks
Michael
Myerson
April
1, 2020
Monthly
Review
As the child of a
blacklisted set designer during the Cold War years, I was as familiar with the
names of the Hollywood Ten and other leftists in the movie industry as I was
with stars like Danny Kaye, Gary Cooper, and Ava Gardner.
So when news came
that some blacklistees, including two of the Ten, were making a movie about a
strike of Mexican miners, I eagerly awaited its release. I could not know that
the movie, Salt of the Earth, would itself be blacklisted by the
Hollywood studios that had a near-monopoly on distribution.
McCarthyism vs.
Clinton Jencks
By Raymond Caballero
University of Oklahoma Press; 322 pages
August 22, 2019
Paperback: $29.95
ISBN-10: 0806163976
ISBN-13: 978-0806163970
By Raymond Caballero
University of Oklahoma Press; 322 pages
August 22, 2019
Paperback: $29.95
ISBN-10: 0806163976
ISBN-13: 978-0806163970
University of Oklahoma Press
Only a single
theater in Los Angeles, where virtually the entire film industry was based,
risked showing it. The independently owned Vista—the oldest movie house in
southern California—in the Los Feliz neighborhood, was near my junior high
school. While most of the country, if they even knew of it, was unable to
view Salt of the Earth, it was easily accessible to me. Lucky me.
Salt of the Earth eventually
became a cult favorite, required viewing for any film buff. The movie tells the
story, barely fictionalized (only the names are changed) of the 1950–51 strike
against Empire Zinc (EZ) in southern New Mexico by the mainly Mexican and
Mexican-American members of the International Union of Mine, Mill and Smelter
Workers Local 890.
When beatings by
company thugs and the jailing of union leaders by the local sheriff fail to
break the strike, EZ gets a court injunction to stop the miners from picketing
and inhibiting scabs from entering the mines. So the miners’ wives take over
the picketing. This is the 1950s, remember, when patriarchy ruled most U.S.
families, no more so than in heavily Catholic Latino communities. Thus, the
strike (and the movie) became a movement not only for workers’ rights on the
job, but for women’s empowerment in the home and community life.
Nearly the entire
cast was made up of Local 890 members. The movie’s male lead was played by 890
president Juan Chacón, a militant leftist. Mexican movie star Rosaura Revueltas
was hired as the female lead, playing Chacón’s wife and reluctant strike
leader. As with the strike itself, the film’s cast was nearly all Mexican and
Mexican-American. Two exceptions were the film and stage character actor (and
blacklistee) Will Geer, playing the strike-busting sheriff, and a handsome
blonde man who might have been confused for a Hollywood star but was actually
Mine Mill organizer Clinton Jencks. It was striking (no pun intended) to see
this fair-haired pale-skinned man in meetings and jail alongside the other
union members who were without exception dark-skinned and brunette.
The Anglo from
Central Casting
Jencks was easy to
remember. Good thing, because, several years later when I was an undergraduate
at University of California, Berkeley, I immediately recognized Jencks, who,
twenty-two years my senior, had just entered Berkeley as a doctoral candidate
in economics. I introduced myself and struck up a friendship. Turns out that
Michael Tigar did also. Tigar, one of my closest co-conspirators in the
Berkeley student movement, has since become a renowned international human
rights attorney. He has also written the foreword to Raymond Caballero’s
study, McCarthyism vs. Clinton Jencks, which exhaustively details
how the federal government brought the entire weight of its repressive
apparatus down on the heads of Jencks, his family, and his union sisters and
brothers. To boot, Caballero tells the story of the making of Salt of
the Earth.
I am grateful to
Caballero—as will be any reader—for telling the Clinton Jencks story. Clint,
modest as he was, was reluctant to talk about himself. Born in 1918 in Colorado
Springs, he could count his antecedents back to colonial Massachusetts, with a
long line of Christian missionaries on the family tree. Raised as a devout
Christian in a mining community, these two influences pretty much dictated his
life’s journey.
In early
adulthood, however, he had trouble reconciling the church’s preaching about
“all God’s children” when their pews were strictly segregated. A good student,
Jencks’s reading progressed from mining history to socialism and Eugene V.
Debs. At the University of Colorado, he became chair of the campus chapter of
the American Student Union and soon joined the Young Communist League.
After the attack
on Pearl Harbor, Clint enlisted in the air force, serving as lead navigator on
a B-24 crew in the Pacific. He was tasked with dropping mines in Japanese-held
harbors from Guam to Okinawa, doing so at altitudes as low as one hundred feet,
making the planes vulnerable to ground and aircraft fire. Their commanding
officer warned that they would likely not survive their mission. In 1945,
having flown forty missions as lead navigator, Clint was awarded the
Distinguished Flying Cross and six air medals, the highest decoration short of
a Congressional Medal of Honor.
After the war, he
and Virginia, his wife and closest comrade, moved to Denver. Clint hoped to get
a job as an airline pilot but there were few jobs. After unsatisfactory work as
a baggage handler and then a flight controller, he left for work in a smelting
company. He loved being among working people and joined the Mine Mill union,
quickly becoming a shop steward. He had severed his Communist Party membership
when he joined the armed forces, but now rejoined the party.
Mine Mill was
founded in 1893 as the Western Federation of Miners. It affiliated with the
American Federation of Labor (AFL) in 1911, but was expelled twenty-five years
later when it helped create the Congress of Industrial Organizations (CIO). In
1947, Mine Mill had 100,000 members. The union knew they had a prize in Clint
Jencks and they asked him and Virginia to relocate to Grant County, New Mexico,
home to several large gold and lead mining operations. He would become lead
organizer for several Mine Mill locals, whose membership was nearly all
Mexican-American.
Grant County was
strictly segregated—a Jim Crow structure of separate schools, theaters, and
restaurants but aimed at Mexican Americans. On work sites, changing rooms and
restrooms were segregated. Pay lines were segregated and, of course, Mexican
Americans who worked the most difficult jobs received lower pay. The companies’
racism was not simply a ploy to keep white workers divided against Mexican
Americans but, by enforcing separate pay scales, it created additional profits.
Oppressed not only as workers but as Mexicans, the workers viewed their
economic and civil rights as indivisible. A number of local leaders were also
Communist Party members, because they saw the party as a militant fighter
against racism.
Mexican labor in
the southwest had a long history of militancy from the Cripple Creek strike at
the turn of the century to the infamous 1914 Ludlow, Colorado, coal miners’
strike where mine owner John D. Rockefeller sent in gun thugs and National
Guardsmen to shoot down striking workers, their wives, and their children.
Nearly half of the twenty-one victims of the massacre were Mexican-American.
In the postwar
period, with the Cold War intensifying, U.S. corporations were able to use
anti-communist hysteria to attack the labor movement. It was no secret that
communists and other leftists played leading roles in building industrial
unionism in the 1930s. When United Mineworkers Union president John L. Lewis,
himself an anti-communist, set out to build the CIO, he asked the Communist
Party for help, knowing their cadres were among the most militant and
self-sacrificing organizers he could find. Ten years later, the corporations
would use the Red Scare to tame the newly powerful postwar labor movement.
In this regard,
the corporations had help not just from the anti-communist leadership of the
AFL but also from anti-communist CIO leaders who were happy to essentially
broker a labor peace over the “corpses” of many of its best fighters. The CIO
abandoned Operation Dixie, which was to organize Southern workers, black and
white, spearheaded by those same militant cadres who organized the autoworkers
in Michigan and the steelworkers in Ohio. To this day, those decisions have
taken a heavy toll on not only the labor movement but the entirety of U.S.
politics.
When Congress
passed the Taft-Hartley Act in 1947, it largely eviscerated the Wagner Act of
1935 that had given workers the right to strike and bargain collectively, and
had established the National Labor Relations Act. Taft-Hartley placed
restrictions on the right to strike, gave the president the right to enjoin
strikes in cases of “national emergency,” allowed states to enact right-to-work
laws, and, not incidentally, made it illegal for communists to hold office in
unions.
At its convention
following the passage of Taft-Hartley, the CIO launched a purge of so-called
communist-dominated unions. Ten such unions were charged, representing hundreds
of thousands of communications, tobacco, agricultural, fishing, leather, longshore,
mine, maritime, furniture, office, and public workers. By the time the
bloodbath was over, all but two of the unions were either destroyed or forced
to merge with other CIO unions under anti-communist leadership. Among the
latter was Mine Mill, which eventually became part of the United Steelworkers
of America. The two unions that survived by leaving the CIO and remain intact
today (but much smaller) are the United Electrical Workers and the west coast
International Longshoremen and Warehousemen’s Union. Other left-led unions
across the country also suffered serious losses, from the Hollywood craft
unions, devastated by the combined might of the studio bosses and their mob-run
union allies, to the New York teachers, thousands of whom were blacklisted by loyalty
oaths.
In 1950, the Cold
War abroad had turned hot. In Korea, U.S. soldiers now fought North Korean
regulars and South Korean guerrillas, with the Chinese about to enter the war.
A year earlier, a lynch mob encouraged by state police attacked an outdoor
concert in Peekskill, New York, with the aim of killing Paul Robeson, who
headlined the concert together with Pete Seeger. The Red Scare at home reached
a fever pitch with the arrests of Julius and Ethel Rosenberg as so-called
atomic spies. Untold thousands of communist and other leftist workers were
fired and blacklisted from their professions, some were deported, and two faced
the death penalty.
That same year,
with Mine Mill expelled from the CIO, the government declared open season on
its leaders. This was when Clint and Virginia Jencks returned to Grant County.
The EZ contract was about to expire. Negotiations with the union broke down
when the company walked out after having refused to bargain with Local 890. The
miners were asking for a raise of fifteen cents per hour and six paid holidays.
EZ offered a five-cent raise but only if the workers agreed to a
forty-eight-hour work week in place of their current forty hours. The members
voted overwhelmingly to strike.
This was the labor
battle portrayed in Salt of the Earth, with its lockouts; beatings
of members (including Clint and Virginia) by hired thugs, local vigilantes, and
sheriff’s deputies; mass jailings; and the miners’ wives taking over the picket
lines to fight the scabs, tear gas, and injunctions.
As Caballero
writes, “Grant County’s establishment had special scorn for Jencks, the outside
Anglo agitator. The Anglo power structure claimed that Jencks was upsetting
Mexicans who, they implied, had been previously content with their lot as second-class
citizens.” The nearly identical language was used a few years later against the
southern civil rights movement.
While in the Grant
County Jail, Clint was subpoenaed to appear in Salt Lake City before a hearing
of the Senate Subcommittee on Internal Security, the subject of which was
“Communist Domination of Union Officials in a Vital Defense Industry.” The
committee was chaired by Nevada Senator Pat McCarran, who had authored a bill
setting up the Subversive Activities Control Board requiring the Communist
Party, several dozen “Communist action groups,” and their members to register
with the Attorney General, and making them subject to expulsion from the
country (in case of immigrants) and even potential imprisonment in detention
camps. (The bill was declared unconstitutional by the U.S. Supreme Court
fifteen years later.) The Mexican mineworkers and Clinton Jencks were
apparently threatening national security and endangering our troops in Korea. A
year earlier, in the interests of protecting Mine Mill from the CIO purge and
government repression, Clint again ended his membership in the Communist Party.
At the hearing,
Clint declined to answer any questions about his political associations or
beliefs, but the Senate subcommittee had its friendly witness, Harvey Matusow.
Matusow was one of a half-dozen professional witnesses employed by the Senate
committee and House Un-American Activities Committee, their clones established
in a number of states, and the Justice Department in its trials of communists and
others under the Smith and McCarren Acts. Matusow and his cohort were on
permanent standby to fly around the country, visiting hearing rooms and court
houses to testify that this or that person was indeed a Communist Party member.
Not only was the person named thereby labeled a traitor in the news media and
the Congressional Record, but they could be subject to imprisonment under the
McCarran Act.
Matusow testified that Clint was a Communist Party member and had
told Matusow as much.
In March 1953,
Richard Berresford, EZ’s personnel director, testified before Congress that the
Taft-Hartley anti-communist provisions were not strong enough. He said that
the Salt of the Earth crew, Mine Mill, and Clint Jencks were
inciting “racial hatred” whereas previously relations between Anglos and
Mexicans had been good. He urged that any union officer refusing to testify
before a congressional committee or “hiding behind the Fifth Amendment,” which
Jencks had called on, should be barred from the union. Moreover, companies
should be prohibited from dealing with “communist-dominated” unions and any
contracts between them should be nullified.
A month later, on
April 30, 1953, Clint was playing with his son in the yard of their public
housing home when FBI agents emerged, arrested him, and brought him before a
judge in EZ-dominated Silver City, charging him with two counts of filing a
false affidavit saying he was not a member of the Communist Party. He had left
the party when he signed the affidavit, an inconvenient fact the government
chose to ignore in its prosecution (and persecution) of Clint and Virginia.
It will surprise
no reader familiar with the 1950s to learn that the trial in El Paso, Texas,
included a jury—and even a jury pool—that virtually excluded women, Mexican
Americans, other minorities, and workers; that the judge was a pro-business
bigot; and that the news media had already convicted Clint before jury
selection even began. Nor that the prosecution’s “evidence” consisted entirely
of testimony from folks on the payroll of the mining industry, including law
enforcement officers and professional informers, most notably Matusow.
In the pretrial
hearings, the Jencks’ defense team needed to know the facts on which the
prosecution intended to prove guilt—the testimony and exhibits the government
intended to use. The judge denied the motion for a Bill of Particulars, leaving
Clint and his attorneys with no idea how to defend him from the government’s
charges. When the trial opened, Jencks’s attorneys asked to see Matusow’s FBI
reports as they related to the defendant, convinced the informer was a fabulist
whose reports differed from his testimony. The judge denied these requests in
what became the single most important moment in the trial. Even though the
trial went on for weeks—the longest trial in El Paso of a single defendant up
to that time– the jury, charged with electing a foreman, reading the
indictment, reviewing the testimony and exhibits, deliberating, and taking a
vote, took all of twenty minutes to return with a guilty verdict. Clint was
sentenced to two five-year terms to be served concurrently.
As Jencks’s
attorneys began their appeal of the conviction, Matusow’s credibility began to
collapse. In an earlier, unrelated hearing, he claimed he had lists of Communist
Party members at the New York Times and Time magazine.
Now under oath, the object of a lawsuit, he acknowledged that he had no
knowledge of Communists at the two publications. He had recently gotten
divorced and his personal life was falling apart. Undergoing something of a
religious conversion, Matusow arranged to publish a full confession, False
Witness, in which he admitted to being a serial perjurer, encouraged to do
so by Senator Joseph McCarthy and Roy Cohn.
Jencks—like other
victims of Matusow’s lies—appealed for a new trial. At the hearing on the
motion, also in El Paso, Clint’s attorneys called Matusow as their first
witness. On the stand, he testified that prior to Jencks’s trial he had told
the FBI he no longer wished to testify on communist matters, that he had never
told the FBI that Clint was a communist, and that his testimony at the trial
was a lie.
Repeating the
defense request at trial, Clint’s attorneys again demanded the government
produce all reports and materials given by Matusow to the FBI. The court
rejected the request and the judge (who had presided at the original trial)
again refused to review the files for himself. Instead, the judge held Matusow
in contempt for obstruction of justice and unsurprisingly denied Jencks a new trial.
The defense next
went to the Fifth Circuit Court of Appeals to ask for a new trial both on the
grounds of the prosecution witnesses’ perjured testimony and the trial court’s
refusal to produce the witnesses’ statements to the FBI to determine inconsistencies
that could be brought out during cross-examination. The appellate court denied
the motion, leaving the U.S. Supreme Court as Clint’s last chance.
This was now 1956,
three years after Jencks was arrested. Times were changing. Salt of
Earth was a thing for the film archives. The Korean War was long over.
McCarthy had been humiliated in his confrontation with the U.S. Army. Most
importantly, the Supreme Court was now led by Earl Warren. When President
Dwight Eisenhower appointed Warren, it was seen as a conventional choice.
Warren had been a law-and-order District Attorney of California’s Alameda
County (Oakland), then governor of the state and GOP vice-presidential running
mate of Thomas Dewey in the 1948 elections. But in his first term as Chief Justice,
Warren led the court in ruling in Brown v. Board of Education that
public-school segregation was unconstitutional, that “separate but equal” was
oxymoronic. (Eisenhower, a Republican, had also reportedly appointed William
Brennan, a New Jersey Democrat, because he wanted a Catholic on the Court.)
The Supreme Court
shredded the case against Jencks. Justice Hugo Black’s concerns were typical:
“You can’t retain evidence and send a man to jail on it because it’s too
confidential. If the government wants to keep the evidence confidential, they
should try the case without the evidence.” Brennan was clear. The defense was
entitled to any statement made by a witness that related to the testimony
given.
Caballero
summarizes the Jencks decision thus: “If the government
refused to produce a witness statement, the case would be dismissed. In so
ruling, the courts held that the privilege the government had in keeping its
records confidential gave way whenever it brought a prosecution. The government
could no longer prosecute and then withhold evidence that was relevant and
useful to the defense.”
The Jencks decision,
issued at the end of the Court’s term in June 1957, together with ten other
decisions—all against the government, including reversing the conviction of Communist
Party leaders under the Smith Act—“irreparably crippled the witch hunt,” wrote
I. F. Stone.
Within months,
Congress codified into law the results of the Supreme Court decision. As
Caballero notes, “statements by a witness that were reduced to writing and that
related to the witnesses’ testimony would be produced after the defense made a
demand,” under what came to be known as the Jencks Act. “Any statements
withheld by the government would be sealed and included in the record. If the
government elected not to comply, the court could strike the witness’s
testimony or declare a mistrial.” While the Jencks Act pertained to federal
prosecutions, most states adopted versions of it.
With the
Court’s Jencks decision and with the Jencks Act now the law of
the land, the government chose the wiser option of dropping the prosecution
rather than going to a retrial. Clint and Virginia Jencks could now breathe
easier, the end of their years-long persecution accompanying the rewriting of
judicial and legislative history. Future generations of readers of crime
fiction and viewers of televised courtroom dramas became familiar with
“discovery” motions—at the core of cross-examination—based in large part on the
Jencks Act.
Caballero has done
a masterful, excellently researched job of conveying this important piece of
twentieth-century U.S. history and of telling the story of Clint and Virginia
Jencks, mostly unknown U.S. heroes.
Placing their
story into a larger context would have fortified the book beyond its already
considerable strengths. Unfortunately, the persecution of Clint Jencks and the
devastation of the International Union of Mine, Mill and Smelter Workers and
its largely Mexican-American membership were not stand-alone stories. The
postwar Red Scare wrecked tens of thousands of lives, forced thousands of U.S.
progressives to leave the country, and pushed others to suicide. The drive of
the federal government in the service of corporate America (aided in no small
part by opportunist labor leadership) to remove the most militant trade
unionists from the labor movement essentially defanged that movement for
generations, down to the present day.
Michael Myerson is an author
and lifelong activist for civil rights, peace, and labor rights. He lives in
the Hudson Valley. 2020, Volume
71, Issue 11 (April 2020)
Donations can be sent
to Max Obuszewski, Baltimore Nonviolence Center, 431 Notre Dame Lane, Apt. 206,
Baltimore, MD 21212. Ph: 410-323-1607; Email: mobuszewski2001 [at]
comcast.net. Go to http://baltimorenonviolencecenter.blogspot.com/
"The master class
has always declared the wars; the subject class has always fought the battles.
The master class has had all to gain and nothing to lose, while the subject
class has had nothing to gain and everything to lose--especially their
lives." Eugene Victor Debs
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