Michael Musmanno

Michael Musmanno

Michael Angelo Musmanno (April 7, 1897 – October 12, 1968) was an American jurist, politician, and naval officer of Italian heritage.

Musmanno was born in Stowe Township, in Allegheny County, Pennsylvania, an industrial neighborhood a few miles west of Pittsburgh.

Musmanno rose to the rank of Rear Admiral in the United States Navy. He served as a regional military governor of the Sorrentine Peninsula in Italy during the Allied occupation. Later, he was presiding judge at the Einsatzgruppen Trial of the United States Nuremberg Military Tribunal (and a member of the court during the Milch Trial and the Pohl Trial) during the Subsequent Nuremberg Trials. He was appointed head of the three-person Board of Soviet Repatriation of Displaced Persons in 1946 in Austria, where he fought the forcible repatriation of people into the Soviet Union, many of whom did not want to be "repatriated" and faced terrible persecution on their arrival in Soviet territory. He later was a witness in Jerusalem against Adolf Eichmann.

Musmanno had a lengthy career in civilian law. He served as a Pennsylvania state legislator; as an appellate attorney for Sacco and Vanzetti; as a judge in the common pleas court of Allegheny County (1934–1951), Pennsylvania; as a judge in the county court in the same (1932–1934); and ultimately, as a justice of the Supreme Court of Pennsylvania from 1952 to 1968.

In Musmanno's first five years on the Pennsylvania Supreme Court, he wrote more dissenting opinions than all of the other justices on the court had collectively written in the previous fifty years. In his dissent from a ruling that Henry Miller's book Tropic of Cancer was not obscene, Musmanno wrote:

"Cancer" is not a book. It is a cesspool, an open sewer, a pit of putrefaction, a slimy gathering of all that is rotten in the debris of human depravity. And in the center of all this waste and stench, besmearing himself with its foulest defilement, splashes, leaps, cavorts and wallows a bifurcated specimen that responds to the name of Henry Miller. One wonders who the human species could have produced so lecherous, disgusting and amoral a human being as Henry Miller. One wonders why he is received in polite society. . . .

From Pittsburgh to Philadelphia, from Dan to Beersheba, and from the ramparts of the Bible to Samuel Eliot Morison's Oxford History of the American People, I dissent!

One of his dissenting opinions was not published in the official Pennsylvania State Reports because Musmanno had not circulated the opinion among the other justices before he filed it. Musmanno then sought a writ of mandamus ordering the official state reporter to publish his dissenting opinion. The trial court denied the writ, and the Pennsylvania Supreme Court, with Musmanno representing himself (and obviously not sitting as a justice) affirmed that decision.

Musmanno spent much of his life interested in the plight of the working man, and in his Italian heritage. Beginning in 1929, the then-state legislator fought to banish the Coal and Iron Police, a private police force that beat worker John Barkoski to death. The police force was banished in 1935 after Musmanno wrote a play, Black Fury, that became a movie. After the successful effort, Musmanno wrote a book of the same name.

Musmanno is also remembered for his involvement in the anti-Communist sedition case of 1950 against Steve Nelson, who was leading a regional branch of the American Communist Party. The Communists sold tracts for $5.75 to Musmanno, who declared the store "the equivalent of an advance post of the Red Army." Musmanno used the resulting publicity to secure his election to the Supreme Court of Pennsylvania. Nelson initially received a 20-year prison sentence, $10,000 in fines and $13,000 in prosecution costs. The Supreme Court of the United States ultimately threw out the case, saying federal law superseded the state law under which Nelson was prosecuted.

Musmanno described the incident in a book, "Across the Street from the Courthouse," one of 16 he wrote. He also gave an account of his 1932 debate with Clarence Darrow, "The Story of Italians in America," and "Glory & The Dream: Abraham Lincoln, before and after Gettysburg."

Musmanno was very proud of his Italian heritage, and among his numerous books was one arguing that Christopher Columbus was the first European to discover the new world. Musmanno attended the Mount St. Peter Church in New Kensington, and on 11 November 1951, he was the first lay orator to stand in the Pulpit of the newly dedicated building.

Musmanno was also intensely religious, and the last of his many dissenting opinions was against overturning an assault/attempted rape conviction where the trial judge instructed the jury to seek God's guidance in reaching their decision. He wrote in his dissent:

I was afraid it would come to this. It is becoming the fashion to make light of religious invocation. Books are being published asking whether God is dead. Well, God is not dead, and judges who criticize the invocation of Divine Assistance had better begin preparing a brief to use when they stand themselves at the Eternal Bar of Justice on Judgment Day.

Justice Musmanno concluded by saying:

I am perfectly willing to take my chances with at the gates of Saint Peter and answer on our voir dire that we were always willing to invoke the name of the Lord in seeking counsel in rendering a grave decision on earth, which I believe the one in this case to be.

Miserere nobis Omnipotens Deus!

Justice Musmanno died the following day, October 12, 1968, on Columbus Day.

One of Musmanno's fellow justices on the Pennsylvania Supreme Court—Chief Justice Horace Stern—when asked if he read Musmanno's dissenting opinions, said he was not "interested in current fiction."

Not long afterward, however, the court issued a ruling in which this Justice participated, and the wording was unquestionably similar to that in one of Musmanno's dissenting opinions.

This was no surprise, being that Musmanno participated in both decisions: in Perpetua v. Philadelphia Transportation Company, Musmanno wrote the dissenting opinion, while in Koehler v. Schwartz, he wrote the prevailing opinion, with Stern voting the same as Musmanno. Belli added that Chief Justice Stern "lived to regret" his insulting remark.

Musmanno is buried in Arlington National Cemetery. His former home in Stowe Township is now a historic landmark.