Mr. CONIFF. Did he give any evidence of being drunk?

Mr. BARRETT. Absolutely none.

Mr. CONIFF. Whether on this occasion, when this lady says you were present, did any such thing occur at any time at Elkins between Judge Baker and yourself, that she related?

Mr. BARRETT. I never was in the Federal building at Elkins, and Judge Baker and these other gentlemen, when any drinking was going on by him or any one else.

Mr. CONIFF. Or when Judge Baker, when you were present, used profane language?

Mr. BARRETT. No; he never did.

Mr. CONIFF. And there was a witness named Wheeler here, William W. Wheeler, who testified that in a case in which he was a witness there was a half a gallon of red whisky, and that the case started somewhere-it was here- and it was then discontinued here and continued to Martinsburg; that that was either the May term, 1921, or the January term, 1922. Have you examined the record to see whether any case any case-on this docket was transferred or continued from the May term, 1921, or January term, 1922, from here to Martinsburg?

Mr. BARRETT. I went over our law order book this morning in the clerk's office to ascertain whether or not there had been any cases transferred at the May term, 1921, or the January term, 1922, that were transferred direct from Parkersburg to Martinsburg, and the record fails to show any cases having been transferred as related.

Mr. CONIFF. I believe this witness stated there were several persons here and you were probably at this desk [indicating] when this incident happened, and Judge Baker asked him to take this jug of red whisky into his room there [indicating]. He does not contend you heard the conversation, but do you recall any such incident ever having occurred in your presence?

Mr. BARRETT. I have no knowledge of any such occurrence, no. Mr. CONIFF. That is all.

Mr. SCHUCK. Russell, how many times have you seen Judge Baker take a drink of liquor since the time he has been Federal judge? Mr. BARRETT. Never.

Mr. SCHUCK. You never saw him?

Mr. BARRETT. No, sir.

Mr. SCHUCK. At no time or no place?

Mr. BARRETT. At no time or no place.

Mr. SCHUCK. Either in the evening or during court?

Mr. BARRETT. No, sir.

Mr. SCHUCK. When was it that you say you were at Elkins shooting crap, as you relate now?

Mr. BARRETT. It was at the November term. It has been at least a year ago-1923, or maybe 1922. It is since Mr. Welch has been in office.

Mr. SCHUCK. You were there the June previous, at that term? Mr. BARRETT. Yes-in what year?

Mr. SCHUCK. Of the same year.

Mr. FOSTER. You named two years.

Mr. BARRETT. Now the June, 1921, when Judge Baker was appointed, I do not believe I was there then.

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As

Mr. SCHUCK. You were there at the June term, 1922? Mr. BARRETT. Yes; but I have not stayed through the term. soon as the criminal work was over, I generally left; I think though, I was there.

Mr. SCHUCK. Are you speaking now of shooting crap at the November term, 1921, or 1922?

Mr. BARRETT. I am referring to the time Judge Baker brought up the apples.

Mr. SCHUCK. When was that?

Mr. BARRETT. I don't know. It is either 1923, or 1922. It has been either a year or two years ago; I don't remember what year it

was.

Mr. SCHUCK. You don't remember now what year it was.

Mr. BARRETT. No. It has not been longer than two years.

Mr. SCHUCK. You don't remember, then, whether it was the November term, 1922, or November term, 1923?

Mr. BARRETT. It was one or the other?

Mr. SCHUCK. It was one or the other.

Mr. BARRETT. Yes, sir.

Mr. SCHUCK. But you do not remember now whether you were present at the June term of 1922, or the June term of 1923 ?

Mr. BARRETT. No; but the marshal's accounts will show whether I was there or not, because I make up an account showing from the day I leave my headquarters to the day I get back where I was. Mr. SCHUCK. That is all.

TESTIMONY OF MR. FRANK A. O'BRIEN

(The witness was duly sworn by the chairman.) Mr. CONIFF. Mr. O'Brien, where do you live? Mr. O'BRIEN. Wheeling.

Mr. CONIFF. What is your business?

Mr. O'BRIEN. Lawyer.

Mr. CONIFF. How long have you been practicing?
Mr. O'BRIEN. Twenty-three years.

Mr. CONIFF. Mr. O'Brien, it has been stated here by Mrs. Greer that at one of the terms in Wheeling, when the conspiracy cases were on, if you recall, there was a night session of the court and that at sometime in the night you got up on Judge Baker's bench and were presiding or doing something, and the judge came in and seemed irritated about the matter, and subsequently you and Allen Gardner and the judge left the courtroom together, and Judge Baker was perceptibly under the influence of liquor, or showed signs of having been drinking. Do you recall that incident?

Mr. O'BRIEN. The last part of it is absolutely untrue. I recall an incident-just when I can not tell the committee-that during a recess in the evening, most probably when the jury was out in the conspiracy cases, they being out for about two days, I stepped playfully on to the bench and may have made some remark to the few who were in the courtroom, and suddenly was brought to a realization of the fact that the judge was coming from my rear. He did not show any irritation and, of course, I hastily made my exit. Mr. CONIFF. And the court was not in session?

Mr. O'BRIEN. The court was not in session.

Mr. CONIFF. You say this other statement about drinking, or any intoxication on the part of Judge Baker

Mr. O'BRIEN. I did not leave the court room ever in the evening that I recall with Judge Baker, since I have known him.

Mr. CONIFF. You recall his appearing that evening?

Mr. O'BRIEN. I recall his coming from my rear and while I was setting on the bench and probably had the gavel in my hand. Mr. CONIFF. His room is just in the rear of the bench?

Mr. O'BRIEN. Correct.

Mr. CONIFF. Were you close enough to Judge Baker to tell the committee whether he gave any evidence of having had any intoxicating liquors?

Mr. O'BRIEN. I know Judge Baker well enough to say I would have noticed that were it true.

Mr. CONIFF. Was it true on that occasion?

Mr. O'BRIEN. It was not.

Mr. CONIFF. Were you drunk?

Mr. O'BRIEN. No, sir; not then.

Mr. CONIFF. Was Allen Gardner drunk?

Mr. O'BRIEN. Not to my knowledge.

Mr. FOSTER. Were you as near the Judge as Mrs. Greer?

Mr. O'BRIEN. Mr. Foster, the best I-can recall it-and it has all come to me since I have arrived here at noon-is that Mrs. Greer came through the far entrance of the court room, which probably would be 50 or 60 feet away. I may be mistaken about that

Mr. CONIFF. That is the door right opposite the marshal's office? Mr. O'BRIEN. That is the door right opposite the district attorney's office.

Mr. CONIFF. Opposite the district attorney's office; yes.

Mr. O'BRIEN. It would be from here to that door in the rear of the courtroom [indicating].

Mr. CONIFF. One hundred feet?

Mr. O'BRIEN. I would say 50 to 75 feet, at least, when I saw her, if I am correct about it. That is simply my impression.

Mr. CONIFF. How close did she get to Judge Baker while you. were present?

Mr. O'BRIEN. I do not know whether she was closer to Judge Baker than at that moment, or not. I do not recall even seeing Judge Baker after I stepped off the bench. I may have, but I do not recall that. It has not been impressed on my memory.

Mr. CONIFF. How close, if you recall, did Mrs. Greer get to Judge Baker's bench that evening?

Mr. O'BRIEN. Well, at that particular moment, the closest I saw Mrs. Greer would be the distance I indicated. She may have come within the rail or may have been near Judge Baker out in the hallway, or in his chambers. That I do not know.

Mr. CONIFF. How close would you say she got in the court room, where you did see her?

Mr. O'BRIEN. Fifty or seventy-five feet was as I recall it now. Mr. CONIFF. Do you recall whether she had any apparent business with the Judge that brought her out?

Mr. O'BRIEN. No. I would not pay any attention to it, anyhow. Mr. CONIFF. You can not recall any occasion for her coming in? Mr. O'BRIEN. No.

Mr. CONIFF. You may ask.

Mr. SCHUCK. Do you recall any occasion after that?

Mr. O'BRIEN. That I can not tell you, Charlie. I may have remained there until the jury was discharged every night. I probably did.

Mr. SCHUCK. You do not recall what you did?

Mr. O'BRIEN. I do not.

Mr. SCHUCK. Your recollection does not serve you now as to what you did?

Mr. O'BRIEN. My recollection does not serve me as to what I did, and the incident was closed until my attention was called to it when I arrived in the court room this morning.

Mr. SCHUCK. You paid no further attention to it at any time? Mr. O'BRIEN. No more than that I do recall it.

Mr. CONIFF. Mr. O'Brien, there was a particular case mentioned here, a white slave case, in which your name was mentioned, and I think was used as an illustration that the judge probably was drinking to give such sentences, in which sentences were given of six and four months; do you recall that?

Mr. O'BRIEN. Very well.

Mr. CONIFF. A case involving two boys and girls?
Mr. O'BRIEN. Yes, but I represented only one.

Mr. CONIFF. Just briefly state what happened there?

Mr. O'BRIEN. With the committee's permission, I probably might give a couple of additional minutes to it to correct an impression that I think even the district attorney's office has of that matter. A young man by the name of House, whom I represented, and a young man by the name of Burton, represented by Mr. Maury, were indicted some place for white slavery in the fall of 1923, at Wheeling and, in conference with Judge Brown, Mr. Stroud and either Mr. Matthews or Mr. Hiteshew, it was requested, on account of some error in the committing or transfer of the House case, that I bring House into the court room and have his bond there renewed for Elkins. I did that and, during the conference, they agreed with me that they would recommend to the court at Elkins a term not to exceed 60 days for the boy whom I represented. I went to Elkins about 10 days in advance of the day set for the trial, after having notified by telephone I imagine, but probably by wire, the district attorney's office that, so far as my case was concerned, there would be no necessity for them summoning witnesses. I realized if I did not put the Government to expense in the prosecution, that_more considerate treatment would be given the defendant whom I represented. My impression is that a telephone conversation; it may have been a wire. And I purposely went to Elkins probably a week or 10 days in advance of the trial, because I knew of a lady, whose name I never did know, who more or less was interested in the prosecution, and I wanted to be there before she would get the ear of anyone, in order to make the sentence heavier than what I hoped to have imposed upon the defendants.

Judge Brown was not at the Elkins term, but when I arrived at the district attorney's office, Mr. Matthews and Mr. Hiteshew (and) I believe this will correct their impression of the matter) told me that under the circumstances they could not formally recommend a 60-day penalty, or any other, because of an embarrassment that

Judge Brown and their office was under, due to some misconduct of a deputy marshal by the name of Cunningham in connection with the case, which they appreciated I knew nothing about at the time. However, they told me that they would go into Judge Baker's chambers with me and I might say to Judge Baker what they themselves had theretofore agreed with Judge Brown and Mr. Stroud and myself at Wheeling. We went into Judge Baker's office; we conferred with him at length and there I told him, in the presence of both Mr. Hiteshew and Mr. Matthews, that the district attorney had agreed to recommend in this case a 60-day penalty. Judge Baker would not listen to such a small penalty. I gave my reasons for it. The two prosecuting witnesses were never there, were not in Elkins, nad not reached Elkins, and I do not believe were ever summoned, on account of my letter or telephone request. We returned to Judge Baker's office-we adjourned over to his own library, next to the district attorney's office, examined there hurriedly some authorities of law, and the next day returned to the judge's room and it was agreed that he would impose, in that case, a 6 months' penalty on the man whom I represented. Mr. Hiteshew, I think it was, appeared openly and formally in the court room. Mr. Burton, who was represented by Mr. Maury, was not there. Mr. Hiteshew requested me to say to the court that I thought, representing Mr. House, and knowing the cases as I did, that Mr. Burton should not receive as large a punishment as that of the man whom I represented. At the district attorney's request, I made that statement in open court, although the defendant was not present. A few days, Mr. Burton appeared in Elkins with Mr. Maury, his lawyer, and Mr. Burton was given a lighter sentence.

Mr. CONIFF. Do you remember what he was fined?

Mr. O'BRIEN. Four months. I was not there, of course.

Mr. CONIFF. Now, did the judge ever see the girls, to your knowledge?

Mr. O'BRIEN. They were not in court at all, and the reason they were not in court is because I anticipated any witness as being in court and was there at least a week, as the record will disclose, ahead of the day set for trial, just about as I go now probably a couple of days before Thanksgiving, or a couple of days after Thanksgiving. Mr. CONIFF. There has been a statement here, Mr. O'Brien, that the specially queer feature about that was there was evidence these girls had been raped by these boys. Was there any such evidence called to the judge's attention?

Mr. O'BRIEN. There was none of that disclosed in the court room. I could not tell whether there was any of that disclosed whilst in the judge's chambers.

Mr. CONIFF. No; I just want the fact whether Judge Baker ever had any such evidence, to your knowledge.

Mr. O'BRIEN. There was none disclosed to him to my knowledge. Mr. CONIFF. That is all.

Mr. HITESHEW. Mr. O'Brien, you remember in Wheeling when this case was discussed with you, prior to the transfer to Elkins, when it was told to you by myself that, first, owing to the fact that a deputy marshal had been accused of being bribed, was accused of attempting to bribe in this case, and owing to the character of the