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Concurrence & Dissent. Justices Burton and Harlan concurred in ordering a new trial for Jencks, but only on the ground that Trial Judge Thomason had erred in his definition of Communist Party membership to the jury. But, wrote Burton, the old judge-as-screener rule "respects the interests of justice by permitting an accused to receive all information necessary to his defense." And the court majority "goes beyond the request of [Jencks] that reports be produced for examination by the trial court and, in effect, seems to hold that the Government waives any privileges it may have with respect to documents in its possession . . ."
Former U.S. Attorney General Tom Clark, the court's lone all-out dissenter, criticized the majority opinion in unusually strong language. Government law-enforcement agencies, said he, might as well "close up shop, for the court has opened their files to the criminal and thus afforded him a Roman holiday for rummaging through confidential information as well as vital national secrets."
Stop & Go. Although the air around the Justice Department was heavy with the comments of FBI Director Hoover, Government lawyers were not convinced that things were as bad as either Clark or Hoover thought they were. They were merely confused, because, for one reason, the Supreme Court had given the Government no opportunity to argue against or prepare for its sweeping decision.
The confusion caused by the Jencks decision was reflected by week's end in two other cases. In a Rome (Ga.) rape trial (which came under federal jurisdiction because the alleged crime took place in a national park), the U.S. turned over to the defense presumably relevant excerpts from witnesses' pre-trial statements to the FBI. But in an Erie, Pa. antitrust action, the Government tried for much the same solution—and was ordered by the trial judge to hand over its complete reports, kit and caboodle. Result: the U.S. canceled the appearance of three FBI agents as witnesses.