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]