Glasser v. United States, 315 U.S. 60 (1942), is 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 (other than members of the League of Women Voters who had taken a jury training class) 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 (rather than Equal Protection Clause of the Fourteenth 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.Jury Ponders Fate of Five in 'Fix Ring' Case, , Mar. 8, 1940, at 12.
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 (1940). 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."Smith v. Texas, 311 U.S. 128, 130 (1940) (emphasis added).
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, 315 U.S. at 64. Glasser and six other assistants resigned on April 7, 1939, during the tenure of U.S. Attorney William Joseph Campbell.Daniel Glasser, Assistant U.S. Attorney Quits, , Apr. 8, 1939, at 20. 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.Federal Court Fixing Charged; 5 Are Indicted, , Sept. 30, 1939, at 3. 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.Five Accused of Federal Fix Free on Bonds, , Oct. 1, 1939, at 22.
Prosecution's case The trial began on February 6, 1940 before Judge Patrick Thomas Stone, of the Western District of Wisconsin, sitting by designation.Two Former U.S. Prosecutors on Trial as Fixers, , Feb. 7, 1940, at 5. 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.Glasser Blames Yellowly Feud for Fix Charges, , Feb. 8, 1940, at 11. 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.Ex-Prosecutors Linked to Slain Capone Mobster, , Feb. 9, 1940, at 15. 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.Tells of Playing Bootlegger to Nab 'Fix' Figures, , Feb. 15, 1940, at 2. 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 (which they were). 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 (in addition to the $200 bond) to have the case against him dropped where Glasser was acting as prosecutor.Free Bootlegger Says He Paid $600 'Fix' , , Feb. 16, 1940, at 20. And another, Victor Raubunas, testified that he twice paid bribes to Kretske in cases that Glasser was handling (Raubunas was convicted a third time, after refusing to pay Kretske, in a case prosecuted by Ward himself).Testifies He Was Convicted After Fixers Broke Him, , Feb. 17, 1940, at 6. Mae and Anthony Jurkas, two small-time bootleggers, testified that Glasser declined to prosecute them in exchange for the name of their bootlegging boss.Tell How Needy Family Lived by Masking a Still, , Feb. 22, 1940, at 13.
Bootlegger Nicholas Abosketes and his accountant William Brantman testified that Abosketes transferred $3,000 to Brantman that was paid to Kretske.<ref name="trib6">Bribe Offered 'The Way We Do It in Chicago''', , Feb. 24, 1940, at 8.</ref> 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.Rest Liquor Fix Case Against Two Ex-Prosecutors, , Feb. 27, 1940, at 2.
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 (N.D. Ill.) on behalf of Glasser, Kretske, and Roth; Charles Edgar Woodward (N.D. Ill.) on behalf of Glasser and Kretske; and state judge John F. Haas on behalf of Kretske.Federal Judges on Stand to Aid Two Ex-Prosecutors, , Feb. 28, 1940, at 11. 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 was representing Kaplan at the trial), 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 (although the government had not accused them of this). 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.Glasser Makes Three Hour Defense of Prosecutions, , Mar. 2, 1940, at 8.
The defense rested on March 4, after five weeks of trial.Testimony Ends in Fix Trial of Two Ex-Prosecutors, , Mar. 5, 1940, at 10. Assistant United States Attorney Francis McGreal delivered the prosecution's closing argument.Federal Court Fix Ring Trial Nearing Jurors, , Mar. 6, 1940, at 10. Stewart and George Callaghan closed for Glasser and Kretske; Hess for Kaplan; Cassius Poust for Roth; Ward concluded the government's argument.Fix Ring Case Expected to Go to Jury Today, , Mar. 7, 1940, at 20. 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.3 Found Guilty in Fix Ring Face Income Tax Quiz, , March 9, 1940, at 9. 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.Ex-Prosecutors Get 14 Months Each in Fix Case, , Apr. 24, 1940, at 5. Glasser and Kretske were sentenced to 14 months imprisonment.Glasser v. United States, 315 U.S. 60, 63 (1942). 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.Seize Fugitive Under Sentence in Alky Fix Ring, , at 13.
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.3 Witnesses in Alky Fix Case Get Probation, , June 4, 1940, at 11.
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.Appeals Court to Study Bootleg Liquor Fix Case, , Oct. 18, 1940, at 19; Retrial Pleas in Johnson Case Are Postponed, , Oct. 16, 1940, at 21. The Seventh Circuit, in an opinion by Judge Kerner, affirmed their convictions on December 13, 1940.United States v. Glasser, 116 F.2d 690 (7th Cir. 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."Glasser, 116 F.2d at 694.