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Fed. R. Crim. Proc. 46(a)(2) provides that bail may be allowed pending appeal or certiorari only if it appears that the case involves a substantial question which should be determined by the appellate court. Bail may be allowed by the trial judge or by the appellate court or by any judge thereof or by the circuit justice. The court or the judge or justice allowing bail may at any time revoke the order admitting the defendant to bail.
Defendant Communist Party leaders Williamson et al., were convicted under the Smith Act, 18 U.S.C.S. § 2385, for conspiring to advocate and teach the violent overthrow of the United States government and to organize the Communist Party for that purpose. Defendants appealed and, after denial of bail by the trial court, they applied to the Court of Appeals for its allowance. The Court of Appeals granted bail and affirmed their convictions. When they expressed an intention to petition the Supreme Court for review of their convictions, a majority of the appellate court judges extended bail for 30 days to enable application to the circuit justice for further extension. The prosecution asked that bail be revoked and that defendants be remanded to jail on two grounds. First, there was no substantial question as to the validity of the conviction that survived the affirmance, and second, that defendants, while at large, have pursued and will continue to pursue a course of conduct and activity dangerous to the public welfare, safety and national security of the United States.
Should the bail be revoked?
The court held that the bail as fixed by the appellate court was to be continued until the Supreme Court of the United Sates shall deny their petition for certiorari or, if granted, shall render judgment upon their cause. The circuit justice held that although bail could not be demanded as a matter of right, there were substantial questions regarding the conviction that were open to review by the supreme court. Defendants' actions after conviction, which consisted entirely of making speeches and writing articles or editorials that did not contain any advocacy of violent overthrow of the government did not forfeit their claim to bail. The circuit justice took into consideration the disastrous effect on the reputation of American justice if it should send defendants to jail and the full court later found their conviction invalid.