C. Whitney’s Woes
Thomas H. O’Connor – a stocky man of intense energy, sharp intellect, quick wit, and a charming personality – was one of San Francisco’s legal “stars,” a criminal defense lawyer with a sterling reputation for strategic brilliance and rhetorical eloquence. His friend, Fremont Older (the social activist editor of The Call), had so interested O’Connor in Anita Whitney’s case that he offered to represent her pro bono as lead counsel. His associate counsel, J.E. Pemberton, was a horse of a different color: an aging Socialist, the gray-haired and mustached country judge was much less confident of his competence as a trial lawyer. The O’Connor-Pemberton duo would be up against John U. Calkins and Myron Harris as the prosecuting attorneys, the latter a grandiloquent flag-waving orator. When O’Connor first entered the courtroom of Superior Judge James G. Quinn on Tuesday, January 27, 1920, the eminent attorney did not appear his typically vigorous and assured self. Explaining that the distress and distraction caused by his young daughter’s battle for her life against influenza had prevented him from preparing sufficiently for trial, O’Connor asked Quinn for a continuance. The jurist would have none of it, and demanded that the trial commence. On the second day of voir dire, O’Connor himself was stricken with influenza, but the judge showed no mercy: the jury of six women, six men, and a female alternate had been chosen and were being held day and night in custody at the state’s cost,[39] so the court was ready to hear opening statements.[40]
Myron Harris promised to prove the syndicalist nature of the national Communist Labor Party with which Anita Whitney was associated:
We will show that although she, herself, in expressions of opinion, may have said that she was for changes by political action, . . . that her every attitude and everything that she has done showed her to be a radical, not of the conservative Socialist Party, but a member of the Communist Labor Party, which is in violation of this law.[41]
When Harris mentioned the Third International at Moscow and the International Workers of the World, it became clear that the prosecution aimed to associate Whitney with the Communist Party of California, through it with the national party, and through the latter with the Russian party and the radical IWW. The theory of the state’s case, in short, was “stacked up like the House that Jack Built. Miss Whitney was a member of the Communist Labor party, this party had endorsed another party, and members of that other party had been convicted of ‘criminal syndicalism.’”[42]
