TRIALS: End of a Futile Case?

It is still remembered as an incredible, nearly surreal trial. Defendants shouted “pig” and “fascist” at the judge, mocked him by wearing judicial robes. One day they tried to hold a birthday party, and when the cake was banned from court, one defendant cried out: “They’ve arrested your cake!” At one point a defense attorney threw himself across a table and tearfully implored the judge: “Put me in jail, for God’s sake, and get me out of this place.” As for the judge, he addressed the defendants with irony and invective. Besides being almost unbelievably chaotic, the trial lasted five months and cost at least $2,000,000. One of the main charges against the seven antiwar activists: conspiring to cross state lines to create a riot at the 1968 Democratic National Convention. In the view of many legal scholars, the law involved is unconstitutional. Last week the trial’s futility was further demonstrated as a three-judge federal appeals panel in Chicago threw out the last convictions remaining against the defendants.

After examining some 22,000 pages of trial transcripts, the U.S. Court of Appeals for the Seventh Circuit severely scolded the presiding judge, Julius J. Hoffman, 76, who is on senior status on the district court and therefore now carries a reduced case load. The court ruled that Judge Hoffman had not only made numerous legal errors but had biased the jury by repeatedly making sarcastic remarks about the defendants or their lawyers. Said the opinion: “The demeanor of the judge and prosecutors would require reversal [even] if other errors did not.” The court thus overturned the convictions of Rennie Davis, David Dellinger, Tom Hayden, Jerry Rubin and Abbie Hoffman for crossing a state line with intent to start a riot. The trial jury had found the five, plus Lee Weiner and John Froines, innocent of the more controversial conspiracy charge.

The appeals court’s 121-page opinion found that on more than 150 occasions Judge Hoffman had made comments before the jury implying that the defense counsel was “inept, bumptious or untrustworthy, or that his case lacked merit.” Cumulatively, these “gratuitous” remarks “must have telegraphed to the jury the judge’s contempt for the defense.” One example cited was Judge Hoffman’s snide comment when Defense Attorney William Kunstler objected that he did not understand a particular ruling: “You will have to see a lawyer, Mr. Kunstler, if you don’t understand it.”

Erred. On procedural matters, the court decided that Hoffman had erred in failing to question prospective jurors about their possibly prejudicial attitudes toward the Viet Nam War and the life-styles of many demonstrators, in communicating with the jury without informing the defense and in refusing to allow expert witnesses—including former Attorney General Ramsey Clark and Ralph Abernathy, president of the Southern Christian Leadership Conference—to explain to the jury why many young people went to Chicago to protest.

The appeals court by a vote of 2 to 1 rejected the defendants’ claims that the law was unconstitutional. The question of whether it infringes on rights of free speech and assembly probably will one day reach the Supreme Court. Although the court did give the Government the right to retry the defendants, this seems unlikely in view of the work and cost involved; in addition, the Government under a new Supreme Court ruling would have to disclose information derived from wiretaps. The harsh sentences for contempt that Judge Hoffman gave the defendants and two of their lawyers had been overturned earlier by the appeals court, which ruled that the defendants were entitled to contempt trials before a different judge. It is not certain whether the Government will seek such trials.

The net result of the whole Chicago Seven litigation is ambiguous. The decision to prosecute could be taken as evidence of political contamination of the judicial system; the fact that the verdicts were reversed suggests that justice, in the end, prevailed. Yet the complaint of one of the defense lawyers, Arthur Kinoy, has yet to be definitively resolved. “When you have a trial of intentions, trying what is in people’s heads, then it is just impossible to get a fair trial. It wasn’t just Judge Hoffman. It was an explosive situation.”