Trials: The Risk of Mockery

“Drama is anything you can get away with.”

—Revolution for the Hell of It, by Abbie Hoffman.

In Chicago, the dramatis personae include a wizened, erratic and irascible judge who admits that “I am not an altogether modest fellow.” The prosecutor is an ambitious young U.S. attorney held over from the Democratic Administration to try eight of the nation’s leading radicals on an anticonspiracy law that may very well be ultimately found unconstitutional. The defendants, who throw kisses at the jury, call the judge a “racist,” and fully expect to go to jail, insist that their proper jury is “the peoples of the world.” The setting is Richard Daley’s Chicago, hungry for vindication but now targeted for the same sort of demonstrations that disrupted the Democratic Convention.

Abbie Hoffman, the Yippie leader and one of the wilder defendants, could probably wish for much zanier touches. In any case, even in its second week, the Chicago “conspiracy” trial was becoming a classic American drama of the sixties.

Judge Julius J. Hoffman, 74, arrogated the star’s role to himself. With occasionally histrionic flourishes, he has consistently overruled defense motions and objections. When four lawyers who had helped to prepare the defense sent telegrams withdrawing from the case, Judge Hoffman issued bench warrants for their arrest. He ordered two of them—Gerald B. Lefcourt of New York and Michael Tigar of Santa Monica—jailed for contempt. The others—Michael Kennedy of San Francisco and Dennis Roberts of Oakland—obtained a supervening order from a U.S. district judge in San Francisco. Ordinarily, a lawyer appears in court to withdraw from a case; Hoffman was overreacting to a relatively minor breach of courtroom protocol. Although Judge Hoffman later canceled his order, 13 members of the Harvard Law School faculty asked the Illinois Bar Association to investigate his actions. Said the 13: “Judge Hoffman’s conduct can only serve to weaken a basic American principle: the right of even the most unpopular defendant to adequate legal representation before an impartial judge.”

Grounds for Appeal. Some legal experts believe that Judge Hoffman’s behavior has already paved the way for a successful appeal, should the eight be convicted of conspiring to foment riots at the convention. The defense argues that, among other things, the judge failed to question prospective jurors thoroughly to ensure a semblance of impartiality regarding the highly publicized convention disturbances. The jurors—ten women and two men—are mostly middle Americans of middle age.

Another ground for appeal might lie in an episode last week that resulted in Hoffman’s ordering the jury sequestered for the duration of the trial—a matter of three months or longer. Someone sent letters to the homes of two jurors declaring: “We are watching you. The Black Panthers.” One assumption was that the Panthers were trying to intimidate jurors because one of their leaders, Bobby Scale, is among the defendants. But since the defense regarded both of the “threatened” jurors as relatively sympathetic, Scale lashed back that the letters had actually been sent by “the FBI and/or other lackey foolish pig agents” in an effort to tamper with the jury. One of the two jurors, a 23-year-old customer’s representative, had not even seen the letter; her family had concealed it from her. Hoffman showed it to her in court, then asked if she could still render an impartial verdict. “No,” said the girl, who was startled and shaken. The second woman who received the letter claimed that it would not affect her judgment. Defense lawyers, however, argued that Hoffman himself had deprived them of one presumably sympathetic juror by showing her the threatening note.

There were other accusations that Judge Hoffman’s conduct precluded a fair trial. The Washington Post’s Nicholas von Hoffman, for example, reported that while riding up to the courtroom on an elevator, he overheard the judge declare: “Now we will hear this wild man, Weinglass”—a reference to Defense Attorney Leonard Weinglass.

Many radicals undoubtedly would like to turn the conspiracy trial into a mockery. But so far, says Russell Fairbanks of the Rutgers University Law School, “the court is doing a pretty good job of that themselves.”