The strictly legal method having failed, I resorted to my own and wrote Justice McInerney an open letter:
As an American pledged to the principles and spirit in which this Republic was founded, as a judge obligated by oath to fair and impartial judgment, do you in your deepest conscience consider yourself qualified to try my case?
In those birth control cases at which you have presided, you have shown to all thinking men and women an unfailing prejudice and exposed a mind steeped in the bigotry and intolerance of the Inquisition.
To come before you implies conviction.
Judge McInerney “made application to the District Attorney to be taken off this case.”
Trial was marked for January 4, 1917, but the first case, that of Ethel, was reached so late in the afternoon it had to be postponed. Four days afterwards, in spite of our attempts to be tried together, she appeared alone. She freely admitted she had described birth control methods but denied the District Attorney’s accusation that our ten-cent registration fee made it a “money making” affair. This and other sensational charges, such as “the clinic was intended to do away with the Jews” were often inserted in the records for reporters to pick up, make good stories of them, and in consequence influence newspaper readers against us. They were great stumbling blocks.
Our most important witness, Dr. Morris H. Kahn, physician in Bloomingdale’s Department Store who also maintained a private clinic where he gave out birth control information, was ready to testify, but his evidence was ruled out as “irrelevant, incompetent, and immaterial.” To be sure the charge against Ethel was as a lay person; nevertheless, it was extraordinary that we could get no hearing for a doctor. J.J. was allowed only fifteen minutes to present his argument on the unconstitutionality of Section 1142, and the presiding Judge decided that the court was bound to hold it constitutional on precedent, regardless of argument.
Ethel was found guilty.
In the two weeks before sentence was to be pronounced we debated what she and I should do. Perhaps it could be stayed, which would settle everything, but we each had to be prepared for either a short term of imprisonment or a long one. In case of the former, submission was the wiser course, because the public would not consider it of sufficient moment to bestir itself; in the latter event, a hunger strike seemed indicated, but, again, only if sufficient attention could be called to it.
The New York World had the most liberal policy of all the leading morning dailies, and therefore appeared to offer the best likelihood of being favorably disposed. I approached one of its editors and asked whether he would print our entire story if I were to give him a scoop and guarantee accuracy. He agreed, and assigned us a special reporter.