With the prosecution and defense resting their cases, Judge Pollock issued his instructions to the jury. Unlike Judge Van Valkenburgh in the Missouri trial, Pollock showed no tendency to appeal to the jury to be patriotic and biased towards the defendants. He began by acknowledging that war inflamed passions and prejudices which could sway loyal citizens to impose standards of their own and fix the boundary line of punishable speech at a point which makes all opposition to the war a crime. The judge admonished the jury to decide the case on the “cold, clammy facts.” If the court could try the defendants wholly removed from any thought of the war, “the nearer justice will be done in this case.”
Following a January 1918 postponement to rule on the double jeopardy motion entered by the members of the Federation for Democratic Control, the trial of the Kansas conspirators began on April 11, 1918 in a federal courtroom in Topeka, Judge John C. Pollock presiding. Fred Felten, having agreed to testify on behalf of the prosecution, escaped indictment. U.S. District Attorney Fred Robertson, handled the prosecution and Seymour Steadman, a socialist attorney from Chicago, headed the defense.
On December 11, 1917, the government opened its case in Kansas City, Missouri against the Moores, Browder and six others also charged with conspiring to obstruct the draft law in that state. Harvey Kleinschmidt was not indicted having agreed to serve as a witness for the government. Judge A. S. Van Valkenburgh left no doubt the case focused on the issue of patriotism. The constitutional right of free speech, the judge admonished the jury, “cannot be made a cloak for deliberate or intentional lawbreaking.” With scrutiny of First Amendment rights removed, Van Valkenburgh branded the defendants with an image of secrecy and evil plotting, cautioning it was rare that a conspiracy can be proven directly as those who band together to do wrong seldom act openly in such a manner as to furnish direct evidence of their purposes. The prosecution need only show that a conspiracy was not improbable. Likening the soldiers the defendants attempted to dissuade from fulfilling their duty to the “instrumentality of the Almighty,” the judge declared in apocryphal language that should the nation fail to raise an army to protect women and children on foreign shores, it would inevitably have to do so at home.
Long before 1917, Ike Gilberg had earned a reputation as the “leader of Topeka radicalism.”
Born in 1873 in Bialystok, Russia, a major Jewish textile manufacturing center, Gilberg boarded a Red Star liner in 1889 bound for New York City. For whatever reason, Gilberg seemed intent on obfuscating the reason he fled his homeland giving at least three different accounts of what he described as “my feeble attempts to bring on the revolution.” Traveling first to Missouri, where he became a naturalized citizen in 1896, Gilberg arrived in Topeka by 1907, opening a tailor shop in the basement of the Copeland Hotel.
Beginning in the early 1880s, Dr. Eva Harding and a small group of women applied their sense of duty to society and in the name of social justice transformed local women’s clubs from their earlier devotion to charity and religion to focus on economic and political equality and social reform. Born in Ohio in 1857, Harding’s family claimed the distinction of being the only in America to boast all three female siblings becoming physicians. In 1882, Harding joined the medical practice of one of her sisters in Atchison, Kansas. Ten years later, she established herself in Topeka, centering her practice on women and children.
On May 31, 1917, U.S. District Attorney Fred Robertson issued warrants for the arrest of six Kansans charged with obstructing the operation of the draft law. In Topeka, federal agents took tailor Ike Gilberg, physician Eva Harding, garage owner Fred Felten, and carpenter Ernest Newman into custody. University of Kansas Professor George Kleihege was arrested in Lawrence and store clerk Earl Browder in Olathe. Also caught in the federal net under warrants issued in Missouri were Federation for Democratic Control members Moore, Warneson and Harvey Kleinschmidt for their anti-conscription agitation in that state. Because of his association with the FDC, authorities transported Browder to Missouri to face legal proceedings. Several weeks later, new charges were brought against the Moores, Kleinschmidt and Browder for their role in the Topeka meeting.
On June 16, 1917, one day after Congress passed the Espionage Act; authorities took Irving T. Boutwell, into custody at the Topeka Union Pacific Depot for distributing an anti-war tract to a passing troop train. The leaflet, entitled “A Good Soldier,” attributed to Jack London, condemned the soldier as a “blind, heartless, soulless, murderous machine” who “never thinks; never reasons; he only obeys.” Boutwell stood accused of attempting to cause insubordination disloyalty, mutiny, and refusal of duty in the armed forces. In January 1918, Boutwell became the first Kansan convicted under the Espionage Act.
On the afternoon of May 27, 1917, Topeka socialists convened a meeting at the Unitarian Church on Kansas Avenue. Handbills advertising the meeting boldly announced its purpose – to protest militarism, conscription and “any Despotic Act imposed upon us by National Legislation.” The meeting was largely an ad hoc affair with the location and roster of speakers finalized only several days before. Three of the four speakers – Raymond Moore, his wife Lenora Warneson and Earl Browder were members of the Federation for Democratic Control (FDC) an anti-war organization working out of Kansas City, Missouri and already under the watchful eye of the government.
With the U.S. entrance into the war on April 6, 1917, dissent against the government erupted into a national concern. President Wilson quickly embarked on a crusade to convince the nation that a conflict waged on distant shores was a heroic undertaking requiring unswerving loyalty, unconditional patriotism, and ungrudging self- sacrifice. The government set in motion forces for uniformity and co-operation with the war effort creating what Harvard law professor Zechariah Chafee, Jr. described in 1919 as “the unprecedented extension of the business of war over the whole nation.” Dissent could be tamed by a sense of duty and volunteerism, reinforced by the seamless patter of the government’s propaganda bureau, the Committee on Public Information, which unleashed a barrage of images and words appealing to patriotism while dehumanizing the German as a lethal pestilence.
While supporters of President Wilson policy of preparedness loudly trumpeted “We are with you Mr. President,” other Kansans just as vehemently disagreed. Peace meetings sprang up across the state. The 6,000 members of the Kansas State Teachers’ Association publicly protested “the present tide of militarism of the European fashion.” Organizations including the Kansas State Grange and the Kansans Federation of Labor as well as more than 100 churches, 150 fraternal orders, and 40 women’s clubs went on record as standing in opposition to Wilson’s push to prepare the country for a war they believed was none of America’s concern.