The Criminal Libel Trial and Archbishop Arseny, Part 2

Well, this project has become a little lengthier than I intended, so the number of postings may be increasing.  I do sincerely apologize for this.  I simply did not want to throw together too long of a post.  In this post, I am going to provide an analysis of the main components of the prosecution’s case, minus the cross examinations of the defense witnesses.  That will be discussed in the next post, which will continue with the defense’s case.  I will note some relevant cross examination by Smitkin, the defense attorney in this post here.

As mentioned in the last post, the criminal libel charge was pressed because of an article that appeared in Svoboda.  Those interested in the original article may look here (p. 5, but half of the first column did not get copied–blame Svoboda, not me):

http://www.svoboda-news.com/arxiv/pdf/1908/Svoboda-1908-26.pdf

Likely, I’ll request microfilm for the article.  In the meantime, this online version is the best we have.  The article is translated in the trial transcript and the translations that were read were by St. (Fr.) Alexander Hotovitsky (in the transcript, it appears to be misspelled as “Holovitsky”).

What I need to make clear from the outset is that the trial I am analyzing is a criminal trial.  The defendants are Anthony Curkowskyz (the editor of Svoboda and Konstantine Kirczow (who was in charge of many of the operations).  A civil suit had also been filed by Archimandrite Arseny personally (for $25,000 in damages), with them as the defendants together with the Little Russian National Union, but that is not the trial being discussed here.  I am providing an analysis of the criminal trial that proceeded because Arseny wished to have criminal charges pressed against Curkowskyz and Kirczow personally.

Now, as I had mentioned in the last posting, the trial centered on whether Archimandrite Arseny had sexually forced himself on Mary Krinitsky, during an evening buggy ride of several miles from Simpson, PA, to St. Tikhon’s Seminary.  Also relevant is whether Arseny continued the abuse for a few months longer, before Mary obtained work elsewhere under the employ of Mr. Mendelson.

What the prosecution needed to do was prove that the accusation in Svoboda was criminally libelous.  I am not a legal historian, so I do not presently know what the New York law on libel was at the time.  I know that today, libel is extremely hard to prosecute and many states do not even have criminal libel laws on their books.

We also should note at the outset that there are two important but different issues that concern us today: the trial’s focus, which is whether Kircowz and Curkowskyz were guilty of criminal libel and whether Archbishop Arseny is worthy of canonization.  These are two separate issues, so I beg the reader’s indulgence as I try to navigate the trial with these two distinct concerns in mind.

At the very beginning of the trial, the defense attorney, one L.A. Smitkin, argued that the case ought to be delayed until after the civil case had been decided, lest the criminal court appear to be aiding the plaintiff in that suit.  Francis Patrick Garvan, the assistant DA (see: http://en.wikipedia.org/wiki/Francis_Patrick_Garvan) said he had seen no such decision ever made in his eleven years prosecuting cases and the court (Judge Joseph F. Mulqueen) stated that Smitkin’s motion would be upheld only if “public peace” were being threatened by doing so.  Therefore, the trial continued.

Now, let me state from the outset that this opening sets the tone for what one would read the rest of the way through.  Smitkin makes numerous objections and takes numerous exceptions to them being overruled.  Yes, Garvan is overruled at times, too, but not nearly as many times as Smitkin.  Really, I wouldn’t be surprised if the ratio were 15:1, but I am digressing into the sort of area that might be nice for the next post concerning the “lighter side” of the case.

As is normal practice, the prosecution produces its witnesses first.  The testimonies here are significant.  The witnesses include Fr. Arseny, Mary Krinitsky, and Edward A. Delaney, Archimandrite Arseny’s lawyer from Pennsylvania.  The case, by the way, was held in NY because that’s where Svoboda’s office was.  Delaney testified that he tried to get a retraction from Svoboda but it was to no avail.  He claims not to have been told that Svoboda had printed the article based on an affidavit from Mary Krinitsky herself.  Interestingly, Delaney did claim that the reason he tried to obtain the retraction was “so the priest could go back to his parish at Mayfield” (p.35).  In other words, the allegation had been taken so seriously that Metropolitan Platon had removed Fr. Arseny from the parish.

When Archimandrite Arseny took the stand, he stated that Mary Krinitsky worked at the orphanage from May until November of 1906, at which point she went to work for Mr. Samuel Mendelson.  In both places, she worked as a “domestic,” i.e. low wage earning servant-lady.  He also stated that Mary was in Simpson during the cemetery service on July 29, 1906, where she was working for Fr. Alexi Vogolovsky.  He also said he gave her a ride from the cemetery to St. Tikhon’s monastery (estimated at about seven miles) (p.43).  He also denied having kicked Mary out of the monastery and denied having refused her the opportunity to place her child in the orphanage later the following June (June 4th of 1907).

Under cross-examination, Smitkin tried to implicate Fr. Arseny in something else that happened in Russia, but Archimandrite Arseny side steps it.  An interesting thing to note, however, is Arseny’s claim that he did not have any children while in Russia (prior to his wife’s death).   He even specifically denied having a son pp. 45-46).

The denial of any children, especially a son, is an important point to note because according to the canonization committee’s life of Archbishop Arseny, there was a son from Arseny’s area of Russia (Kharkov) who died in 1937.  Furthermore, the committee’s life refers to documentation received from Metropolitan Nikodim that claims a son was born to Fr. Arseny and his wife after the first year of marriage.  In addition to the life, one may go here:

http://www.uralteologia.ucoz.ru/news/kanadskij_zlatoust_o_zhizni_arkhiepiskopa_arsenija_vinnipegskogo/2010-03-24-126

Therefore, relative to the documentation that would support the birth of the son, Archimandrite Arseny perjured himself.  It is natural to ask why, but I presently do not know why he perjured himself.

On page 54, Archimandrite Arseny seemed to fudge on the degree to which he was aware of the status of his civil suit against the defendants.  Smitkin was also able to introduce as evidence a statement from the filing of that civil suit in which Archimandrite Arseny claimed he was forced to resign as rector of the parish in Mayfield and withdraw to St. Tikhon’s monastery.  Arseny tried to clarify that the way it had been translated to him was that if he was guilty, he was not fit to occupy any position in the Church.  Whether Archimandrite Arseny misunderstood, lied on the stand (again?), or just had bad legal counsel on this particular point is impossible to tell.

Mary Krinitsky took the stand for the prosecution and supported Archimandrite Arseny’s testimony.  In fact, she went so far as to name “Andrew Pretash” as the father of her child.  Ms. Krinitsky claimed Archimandrite Arseny did not even touch her (p.73) and that the defendants tricked her into signing an affidavit claiming Arseny was the father by offering her either ten thousand dollars from one and  marriage from the other (p.77).   A few sentences later, however, she claimed the defendants were not present when she was tricked by false offers of money and marriage (p.78).  The judge then threw out her claim that the defendants had said as much.    She then claimed she didn’t know what she was signing, only that she was told to sign something that was “the truth” (p. 81).

In general, Mary Krinitsky comes across as nervous, scared, intimidated, and/or confused.  She couldn’t even remember when her own son died, and the child did die (p.89).  He lived fourteen to sixteen months.  The birth certificate had Krinitsky as the surname, not Pretash (92).  She also was not able to remember the name of the priest whose wife she worked for in Simpson during the service at the cemetery.  Finally, we learn that one Hrycko Chaly brought her to a notary to sign the affidavit, not the defendants, and that the defendants did not make the false promises stated earlier (p.137).  As a related side-note, reading her testimony is painfully slow because translation was a serious issue.  She spoke Carpatho-Rusyn.  One juror (number nine) could speak Polish and he conversed with her as did the the Russian translator for the court.

Samuel Mendelson was also a witness for the people and he claimed (156-7) that he filed a warrant for Andrew Pretash, after talking to Mary Krinitsky (who was working for him).  Judge Mulqueen allowed this to be entered in, though he was concerned for hearsay because this statement was not made in the presence of the defendants.  Mendelson was able to state that Mary Krinitsky signed an affidavit so that he (Mendelson) could follow through on procuring a warrant for Andrew Pretash (169).  Mendelson’s description of this event is that Yatsko Adamiak, an assistant to Archimandrite Arseny, and Archimandrite Arseny himself paid Mendelson an unannounced visit.  They asked to see Mary.  Samuel Mendelson called her into the room and they confronted her with the article.  She then denied that it was true and the affidavit to that effect was drawn up.  This became the second affidavit Mary Krinitsky had signed and one that substantiated her testimony within court.

To summarize:

In Archimandrite Arseny’s favor, both he and Mary Krinitsky deny that the event ever occurred.  Assistant DA Garvan is also able to show that although Svoboda might have had an affidavit (Garvan avoids getting into this), Mary Krinitsky signed a subsequent affidavit in which she claimed one Andrew Pretash was the father of the child and had abandoned his legal responsibilities and fled the town (allegedly going to Ohio somewhere).

Relative to the documentation given to the canonization committee from Metropolitan Nikodim, Archimandrite Arseny perjured himself.  Smitkin must have known that many (not on the jury) would have believed Archimandrite Arseny had lied and likely Smitkin believed Arseny lied as well.  Because Smitkin had no document to contradict Arseny’s testimony, however, the perjury has remained unknown.  Overall, things look to be in favor of the DA office.  There are cracks in the DA’s case, of course.

Mary Krinitsky was nervous and/or confused.  It may well be that she was not the brightest woman and a Carpatho-Rusyn peasant girl could have easily found her role in the American court system intimidating.  Another reason for finding the situation intimidating will be raised by the defense’s case shortly.  She also does not help her credibility by not being able to say when her son died and not remembering whose house she was working in during the cemetery service event in Simpson.  Although it could be a translation problem or simply her being nervous or perhaps a little mentally deficient, it could also be the sign of a witness trying to remember all of the right details of a scripted testimony.  Mary claimed, however, that Mendelson never once mentioned the court case or why she was traveling to New York with him.  Do we believe her?  It is hard for me to imagine he never once mentioned the case and that Mary had no idea why she was going to New York, but that is what the testimony says.

At this point in the trial, what probably is working the most against Arseny in addition to the question of witness credibility (though again, remember, no one at the trial would have known Archimandrite Arseny almost certainly perjured himself) is the time line of events.  Mary Krinitsky leaves the monastery at what would have been just after her first trimester had passed.  Metropolitan Platon removed Archimandrite Arseny from the Mayfield parish just after the newspaper article went public and Archimandrite Arseny’s timing of his trip to Russia also looks suspicious (February to April, 1907) and when he returns, he is assigned to Canada.  None of that proves guilt and the DA’s office has two strong collaborating witnesses in Arseny and Mary but the time line might look a little suspicious to some readers.

Is this enough to demonstrate criminal libel beyond a reasonable doubt?  We shall see.  In the next posting, I will analyze the defense’s case.

Fr. Oliver Herbel, Executive Director

[This post is cross posted on http://frontierorthodoxy.wordpress.com]

5 thoughts on “The Criminal Libel Trial and Archbishop Arseny, Part 2

  1. Just a note on the characterization of “domestic” as: “low wage earning servant-lady.”
    Historically, female immigrants to North America who were orphaned, widowed, unmarried and pregnant or with small children or otherwise separated from their own families, frequently worked as “domestics” because it gave them a home, companionship and a family life. They were not servants in the strict sense; they were considered a part of the family and usually received an allowance, rather than a wage. There wasn’t the same need for money as there is today, so sometimes they worked simply for room and board. They were cooks and housekeepers and helpers and hired hands, and very common, even as late as the 1950’s, especially in rural areas of the US and Canada where the amount of work needed to sustain a farm was substantial. There was no stigma attached to being a housekeeper or “hired girl.” Life in North America, whether urban or rural, in the 19th and up to the mid-20th centuries (the largest waves of immigration occurred between 1830 and 1930) was not easy; for families, childbirth was almost always at home and remember, children were being raised without modern conveniences like disposable diapers and automatic washers and dryers and nearby grocery stores and clinics. Everything was made or done by hand. And men, for the most part, did not cook. So the role of domestics was very important. A great number of these women immigrants who worked as domestics during that period were illiterate or minimally-schooled; women at that time had no rights, they were not even recognized as “persons” by our governments until 1920 in the US, and 1929 in Canada. In that society where family wealth and status determined access to education and women with careers were very scarce, an immigrant who also had the challenge of a language barrier had very little in the way of options. Working as a domestic provided one with a home, companionship, and food. The basics.

    • Everything you said here seems fine. I had assumed it would be obvious she was earning a minimal wage as well as room and board since she was living at the orphanage with the Mendelson family, but perhaps I was not clear enough. I think “servant” works just fine but if people want to quibble over that word, so be it. It really is not that germane to the trial and the trial analysis. The point is that she is definitely low class, unskilled (at least as we’d define “skilled worker” today), and quite dependent on the people for whom she worked (whether the orphanage or Mendelson).

      Farm hands and ranch hands were quite common up this way, too. I’m in North Dakota, remember :-)

      Let’s not quibble over “servant.” Servant is not the same as indentured slavery. You may continue to disagree with my characterization, and I’ll not rebut you any more concerning it, but I’d prefer to keep the discussion on the real issues at hand.

  2. Hi Fr Herbel.

    Thank you for the hard work you are putting in here. You are right about the complexity of this trial, and my experience of reading the court documents was very similar to yours. The documents reveal some significant insights into the times we are dealing with.

    My sincere apologies for not sending the court documents to you immediately at your request. I have a large box with over a thousand pages loosely thrown together, and somehow I have lacked the energy and time to sort, copy, prepare, and mail out all that paper. The last year has been very busy for me, and for the other person in Canada whom you contacted. Sometimes things just take time, and to be honest, there has been little interest or effort in furthering the research into Archbishop Arseny by me or the canonization committee. In fact, the canonization committee has not met or been assembled for at least eight years. The scandals and chaos and hard work of reconstruction in the OCA of late has something I think to do with that. So I am glad to see that you managed to get a hold of the documents yourself and that you are presenting them here.

    I wonder whether the copy you have (in microfilm?) has the last few pages of the trial. The reason I ask is that the copy I obtained over ten years ago from the Syosset archives did not have those last pages (which I think included the ruling on the trial). Some research was done by others and it was revealed that they were in Met Herman’s possession. So if you have those pages, it would be good to see them.

    As for the missing reference in the later version of the vita, I am quite sure that this was an oversight of some kind. The second version of the vita, which was presented to the Holy Synod of Bishops in (I think) 2004, was the work of three or four people, including myself. This vita was a working document, and was by no means complete, and passed through many computers and before many eyes, before finally being sent to Syosset. I can say that no attempt to sidestep this crucial early event in Arseny’s life was even dreamed of. The people working on the second vita (the first was simply a short personal interest history paper – not meant as scholarship and absolutely not possessing any agenda) were honest, God-fearing Orthodox Christians. We worked hard to be transparent and forthright, as I am sure you can tell by the document, which is a significant advance on the personal interest piece I originally produced.

    This second vita, which is missing the reference, also took into account, as I recall (it ‘s been a long time since I have seen it), many other aspects of Arseny’s life, such as the founding of St Tikhon’s monastery and seminary, his time in Canada, the attempt on his life, and so on. As this is not of significance in your work on him at this point, I can see why a missing reference to the trial would seem like a significant attempt to gloss over the trial. I just want to assure you that no such gloss was intended.

    Also, since that second vita was submitted, a great deal of work has been done by others to interview priests and laypeople who knew Archbishop Arseny, and were extremely glad to be interviewed about their experiences of him. If you are interested in this information about him as well, please let me know and I can put you in contact with the people doing that work too.

    My hope is that when you are finished examining the trial early in Arch Arseny’s life, you will turn your considerable energy, talent, and interest in Arseny to the many other events of his life and accomplishments which also have major historical significance to Orthodoxy in America. I hope this because there is just still so much that needs uncovering. For instance, what were the details of the attempt on his life (he was shot by the Ukrainian Catholics during a parish board meeting at his church)? How did he manage to establish St Tikhon’s Seminary so fast, even during his convalescence at the end of his life? What were the details surrounding the accounts of his work in the trenches of the revolution? What about the sermons for which he was called ‘the Canadian Chrysostom’?

    I know that you are concerned about whether he should be canonized or not, but things take time to sort out. I know that others, especially in Canada, where he has been venerated, prayed to, and loved for decades, have produced hagiographic material, but this represents (which I know because I am in Canada) a genuine response to a man who worked so hard here and who inspired so many in and after his time. My original vita was a basic study of Arseny meant as a personal exercise to understand a man who loomed so large in the Canadian Orthodox experience. The second vita was produced years later (using my original paper as a natural starting point) by a small team under the direction of His Eminence, Archbishop SERAPHIM, and has, at its roots, a larger and longer Canada wide experience of him.

    My point I guess is that it is NOT (as others seem to imply) that Canada wants its own saint, and ‘by gosh we will have one, no matter what the evidence is!’ — it is that Canada for many decades has always felt that Arseny was a saint, and wanted the research and work done on him. There are dozens of rural communities, and priests, who have remarkable, even miraculous, stories to tell about his presence among them. This represents social history — which is very significant in the Canadian context — and much of that history has been recorded (in interviews and anecdotes) and should be considered as just as significant as the trial. His Eminence SERAPHIM should also be included here, since he has been working and travelling in the Archdiocese for so long and has personally gathered information about Arseny’s ministry here.

    All of this is say that your work on the trial is of vital importance to the larger questions of his significance in the OCA, and I am grateful for these posts.

    I do have some thoughts on the complexities surrounding the question of Arseny’s alleged perjury, which I might save for a later comment. I have a copy Arseny’s last will, which is important too in understanding this particular issue. Arseny’s son, by the way, was canonized as one of the many martyrs of the revolution.

    Sorry for such a long post! God bless and keep you this paschal season.

    Christ is Risen!

    Fr John Hainsworth

  3. Fr. John,

    Thank you very much for these comments. I have emailed you concerning them. It is my hope that we will be able to work more closely together on these things. I look forward to your reply and I’m very thankful you have engaged this discussion!

  4. Pingback: OrthodoxHistory.org » Blog Archive » The Archbishop Arseny Trial Transcript

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