The Oakland 7

For nearly three months last winter and spring I sat in an obscure courtroom of the Alameda County, California, courthouse watching what seemed to me one of the most remarkable political trials ever held in America. I thought I was an old hand at political trials. I had attended the court-martial of Captain Howard Levy, the antiwar doctor tried at Fort Jackson for refusing to train Special Forces soldiers to practice medicine in Vietnam, and I had followed, from a distance, the trial of Dr. Spock and his colleagues in Boston; at one point I had been called as an expert, albeit insignificant, witness.

The Spock trial seemed to me to be a classical political trial, one which could have taken place in almost any century since the Magna Carta. The defendants and their attorneys were carved from a classic mold. If they were not part of the Establishment, they were linked to it by birth or association. They represented one class of participant in the antiwar movement and one phase of its history: they were the kind of middle-class intellectuals whose defection from the government’s policies had given the antiwar movement its respectability. The prosecutor used a traditional tool, the conspiracy laws, originally adopted as a weapon against organized crime but regularly used in times of stress against political offenders, from trade union organizers to Communists. The defense also took a traditional approach, arguing that the acts of the defendants were fully protected by the Constitution, that they fell within the right to free expression guaranteed by the First Amendment. The character of the trial was much affected by the liberal climate of opinion, emanating from the Cambridge universities, which took the defendants under its wing. It created the aspect of a stately and principled concern for civil liberties. Everyone agreed that what was on trial was the First Amendment and the right to dissent.

The trial of the “Oakland Seven” was a different phenomenon altogether. The Seven were seven young radicals selected from a growing army of young people not so much disaffected by the government’s particular policies as opposed to the thrust and purpose of America’s political and social institutions. The climate in which they nourished was not the Cambridge of a professorial elite but a Berkeley accustomed to fighting in the streets. If the Spock defendants were the respectables, the Oakland Seven were the enragés. The Spock defendants believed that there are times in man’s life when conscience requires him to break the law, and they felt, more in sorrow titan in anger, that such a condition had arisen in their own lifetime. The Oakland Seven were politicized in the 1960s, influenced both by experience and by doctrine to believe that law is principally a manifestation of the power of class interests; they felt no moral enormity about breaking it. The Spock defendants were archetypal dissenters who still owed their allegiance to the System; the Oakland Seven considered themselves revolutionaries acting in defiance against it. Their trial reflected their special political character. It was not a “liberal" trial which defined traditional liberal questions about the rights of war resisters, the permissible forms of struggle against unjust laws, or the limits of opposition under a democratic government. It was a new creation: a radical trial which raised the issue not of the form of the defendants’ dissent, but of the correctness of their position. The defendants were saying not that they had a right to do what they did, but that what they did was right. What was on trial was not the First Amendment, but the war in Vietnam and the movement against it.

The militant demonstration known as Stop the Draft Week for which the Oakland Seven were prosecuted was symptomatic of a break in continuity within the antiwar movement itself, a kind of generation gap which came to the surface in the summer of 1967. At that point the movement’s successes—the suspension of the bombing of North Vietnam, the withdrawal of Lyndon Johnson—were in an unperceived future. Among young activists, despair over the failure of orthodox means of dissent was particularly great.

Stop the Draft Week was designed to renew lagging spirits. It was to be a new kind of demonstration: not a symbolic protest, a petition for redress, but a real show of power. It aimed directly at stopping an institution the antiwar movement despised, the Oakland Armed Forces Induction Center. It took place in October, 1967, midway in the evolution between the movement’s previous pacifism and its later violence. Participants were not to sit-in and allow themselves to be peaceably arrested, but neither were they to initiate violence against the police. The plan was for people in the streets to stay mobile, evade the police where possible and defend themselves against attack where necessary, and invent whatever tactics the spirit of the movement suggested to block buses carrying inductees front discharging their passengers into the Induction Center. If this meant, in practice, a week of fighting the police, so be it. The leaders hoped that purposeful militancy would both energize the lagging spirits of the white middle-class students who dominated the peace movement and at the same time reach out to a new constituency of blacks and workers who would be persuaded by the demonstration that the white antidraft movement was strong and serious.

The defendants had come to this position by various political routes. Frank Bardacke, the Oakland Seven’s intellectual, is a former Berkeley graduate student in political science, with a reputation among campus authorities as a troublemaker and a reputation among his friends for having a preference for intellectual leftism over action. (The indictment and his subsequent behavior cured that reputation.)

Terry Cannon, representing the San Francisco wing of the Berkeley-dominated movement, is the militant whose insistence that people could hold their own in the streets was in substantial part responsible for STDW strategy. His political history runs from conscientious objection (in his college days at Cornell University) to militant self-defense (in work with SNCC in Lowndes County and San Francisco). He is the founder of one of the more flourishing radical newspapers, The Movement, and is the member of the Seven most frequently called on for speechmaking functions.

Reese Erlich, twenty, is the Seven’s youngster and was the most efficient at getting publicity and keeping track of the host of political and bureaucratic obligations that arose during the course of the trial. Most of his political experience has been on the Berkeley campus in Students for a Democratic Society and antidraft work. Before his suspension for STDW, he was a top votegetter in campus elections, and he has also been on the stall of Ramparts magazine.

Steve Hamilton is the Oakland Seven’s “worker.” He grew up in a Midwestern working-class family and attended a Fundamentalist college, expecting to become a minister. He transferred to Berkeley and became politicized in the Free Speech Movement and the teach-ins. He is the only member of the Seven whose political history includes both Progressive Labor and the Resistance; he left both. He is now organizing white oil workers in nearby industrial Richmond.

Bob Mandel is what is known to the left as a “Red-diaper baby.” His family all live around Berkeley, and his mother, sister, brother-in-law, and seventy-year-old grandfather formed a constant cheering squad during the trial. The Mandel entourage was also the backbone of an Old-Left-style Oakland Seven Defense Committee, which raised money, sponsored functions, and otherwise got publicity for the defendants. Mandel’s own political history has the mark of his generation. While a student at Reed College, he twice went South for SNCC and was active in antiwar and antidraft activities. He has done community organizing in Oakland, and at the time of the indictments, was involved in high school antidraft organizing around the Bay Area.

Jeff Segal is the Oakland Seven’s hero: he is a former national officer of SDS currently serving a four-year prison sentence for refusing induction. During the trial he was housed upstairs in the county jail and escorted to court every day by federal marshals in a three-piece suit supplied by his lawyers; federal authorities would not allow him to be interviewed.

Last of the group is Mike Smith, the Oakland Seven’s street fighter. Smith is the product of a middle-class family which suffered reverses that ultimately landed them on welfare. At Berkeley, where he was working his way through, he became the Free Speech Movement’s “boy in a madras shirt,” a link to the fraternities much as Steve Hamilton was its link to the religious organizations. He spent six months in Mississippi in 1965, then returned to Berkeley to take part in the Vietnam Day Committee and other antiwar activities. He was also active in campus politics and has been arrested for so many different encounters that even he sometimes has trouble keeping them straight.

Toward the end of the trial he had to serve a short sentence on an old misdemeanor charge and joined Jeff Segal in the county jail. Like several of the others, he was thrown out of Berkeley, where campus officials refer to him without affection as “Mad Mike.”

For their chief defense counsel the Oakland Seven made a selection which both reflected and advanced their political values: Charles Garry. Garry is a man whom choice and circumstance have made a rare phenomenon in the American bar, a specialist in political trials. He is no white-maned aristocrat with an intellectual or principled interest in defending civil liberties. He is an embattled Armenian (formerly named Garabedian), whose parents left Turkey to escape the massacre and who personally identifies with the victims of all forms of political persecution. Garry did not go to college; he worked his way through night law school by operating a dry-cleaning establishment. His own political history is radical, of the 1930s and 1940s stamp. Garry is the principal lawyer for Oakland’s Black Panthers and a trial lawyer of excellent reputation; his skill at hanging juries is the envy of the local trade. The manslaughter verdict in the Huey Newton case—the DA had called for first-degree murder with a life or death sentence —was regarded as a Garry triumph; the Panther prosecutions have brought forth a number of minor victories as well.

The defense team was completed by two very able, if less spectacular, attorneys. Malcolm Burnstein is a partner in Treuhaft, Walker and Burnstein, an Oakland law firm that handles the political cases other Oakland attorneys won’t try. He is a scholar of international law and is himself a political activist. Richard Hodge is a young attorney who practices alone, servicing San Francisco’s culture heroes, the rock bands, as well as its political heroes. The defendants and their attorneys formed a remarkably united, if sometimes unwieldy, front. The lawyers understood—and did not attempt to control—the defendants’ casual courtroom attire; they knew the magnetism that politics held for the Seven and did not discourage their participation in other political actions while the trial was in progress. The tension that did exist in the planning and conduct of the defense was not between the lawyers and the clients, but between the defendants as they had been at the time of Stop the Draft Week and as they were at the time of the trial. If the Seven had ever been simply against the war (as they had once been simply “for" civil rights), they had now fused their experiences and perceptions into a radical critique of the substance of American society. There were themes developed in a special Oakland Seven Court of Inquiry into the War and Repression convened on the Berkeley campus during the trial that were not much reflected in the defense: the imperialist character of the war, the class nature of the law, “ruling class crime.” These views were likely to seem more alien to the jury than the simple expressions of antiwar feeling with which they were in fact presented. But if the defendants tended to look more like patriots than like revolutionaries, that was not because their lawyers had invented the pose but because it accurately reflected their positions as they had been when Stop the Draft Week took place.

Sitting alone at the prosecutor’s bench was Lowell Jensen, a product of Alameda County schools and the University of California, a restrained man and a model prosecutor: able, fair-minded, and thoroughly nonvindictive. Jensen is a legal technician whose ideology tells him there is no such thing as a “political” trial; there are only criminal trials. In the Oakland Seven case he defended the position that mankind has no higher calling than obedience to the penal statutes of California, as if he were unconscious of the sordid echoes with which the doctrine of obedience has come to be associated. He argued simply that a crime had been committed —not an evil crime or a heinous crime, merely “an act with an illegal purpose"—and that no violation of the law, whatever its motive, should go unpunished.

Law enforcement in Alameda County is dominated by longtime District Attorney J. Frank Coakley. Coakley was a “law and order" man long before it became a slogan; he is not the sort of politician from whom radicals have to fear “co-optation.” To Coakley every black man is a potential or actual Panther, every person under thirty a potential or actual Red. Coakley makes no secret of his view of the character of student protests, particularly when they are directed against military targets. “It is treason and sedition,”he commented in a recent encounter. “I try to get the federal government to prosecute but when they won’t do it I have to step in and do it myself.”

Stop the Draft Week caused special unease among Oakland law enforcement agencies— because it took place in the heart of downtown Oakland, because of its new tactics and because of the anticipated large numbers of demonstrators. Local officials took every possible step to head it off. They infiltrated the planning sessions with police agents. They obtained an injunction against the use of a campus building for an all-night rally scheduled to precede the demonstration. And when all else failed they sent a huge array of officers to break it up. When it was all over—a week of demonstrations, which included two days of heavy fighting in the streets—they were determined that it should never happen again.

In January, 1968, the Seven were indicted for conspiracy to commit two misdemeanors: trespass and resisting arrest. “The indictment procedure in such instances is a new one,” Coakley told the Oakland Tribune, “a new policy we have adopted [to] serve as a warning and notice to people who would violate the law in so expressing themselves.” It was new indeed, and in the opinion of most civil liberties lawyers, very threatening. The political use of conspiracy laws is not new, as the Spock case suggests, but Coakley had added a special twist. Had he charged the Seven with the substantive misdemeanors listed in the indictment, their possible sentences would have been reckoned in days. By adding conspiracy to the misdemeanors he produced a felony charge, with a possible sentence of three years in the state prison.

The Seven were chosen for two reasons. First, and most important, because Coakley felt he had to make an example of someone. “Technically,” he said at the time, “a hundred or even a thousand of the demonstrators could have been indicted for their action, but we simply don’t have enough courts so we have to take the most militant leaders.”And second, because the DA’s office believed that the evidence against them (acquired principally by infiltrators) was better than the evidence against the others with whom they shared the responsibility for planning. As the trial proved, even that evidence was insufficient.

Presiding over the courtroom was Superior Court Judge George W. Phillips, Jr., a liberal of a classic kind. He is deeply concerned with race questions —before becoming a judge he was active in the fight for open housing in Alameda County—and he is opposed to the war. Phillips is one of a group of judges appointed by former Governor Edmund G. Brown, whose relations with DA Coakley seem only barely civilized. Coakley’s apparent enmity toward Phillips rests principally on two decisions: one, a ruling which obstructed the DA’s efforts to secure all-white juries in cases against black defendants, and another which reduced from death to life imprisonment the sentence of a Negro convicted of murder. During the Oakland Seven trial, Coakley privately denounced Phillips for permitting “propaganda” in his courtroom; now that the trial is over he blames the acquittal on Phillips’ demeanor and instructions.

Phillips did not begin the case with a bias in favor of the defendants. He believed that the case was “the most serious ever tried in Alameda County,” that it involved a supreme Constitutional issue of individual liberty versus public order. If he leaned in any direction it was toward the side of order; he was deeply concerned about the possibility of encouraging further disruptive demonstrations. In the beginning of the case, he consistently ruled with the prosecution, handling the legal motions as if he were determined to avoid setting precedents. He declined to let the defense present the Nuremberg principles or argue to the jury that the Seven were victims of “selective prosecution,” chosen for their political leadership rather than for specific illegal acts. He never lost the civil libertarian view of the character of the case, never fully grasped that the defense was driving at something else: “I don’t see what Vietnam has to do with this case,” he remarked one day early in the trial. Yet at the same time he was unusually open, capable of changing his mind when the evidence seemed to demand it, and was personally drawn to the defendants who, he remarked one day, were “fine young men who could be leaders in any field they chose.” In the end, Phillips was responsible for the relatively open forum the trial became.

Choosing a jury to try radicals in Alameda County is a little like belling the cat. Garry questioned more than 200 jurors in a three-week period, and used the questioning to state his own position in the plainest possible terms. “Would it disturb you to learn that the defendants believe U.S. foreign policy is racist, colonialist, and genocidal?” he would ask the prospects. “Would it shock you to learn the defendants supported the Black Panthers?” “Could you be fair to a person who had refused induction into the Armed Services?” The result was a painful revelation of a divided state of public opinion bordering on civil war. On one morning alone thirty-seven jurors said that they could not be open-minded toward people who took a radical position; a handful, mostly blacks, said they could not be fair to the District Attorney.

The trial itself was a melange of trivial detail and high principle, with Jensen attempting to concentrate on the former and Garry attempting to dramatize the latter. The crime of conspiracy lies in the planning. As far as the law is concerned, Stop the Draft Week itself need never have occurred. But common sense required what the law did not, that the jury be persuaded that something had taken place worth prosecuting. They needed a concrete event, the more horrendous the better. Accordingly, the prosecution’s evidence fell into two parts: proof that ten preparatory “overt acts” cited in the indictment (attending meetings, distributing leaflets, opening bank accounts, chartering buses, and so forth) had taken place, and proof that an attempt was made to shut down the Induction Center.

The legal relationship between these two parts of the case was never clarified; indeed, on a legal level alone, the case would never have made the textbooks. Jensen argued that he was presenting what happened at the demonstration for “evidentiary” reasons only, by which he meant that what actually happened was evidence of what the defendants had intended to have happen; in other words, proof of their intent or frame of mind. The defense argued that in offering evidence about what happened, Jensen was illegitimately attributing to the defendants acts of others for which they were not responsible. Whatever its legal rationale, Jensen’s side of the case was filled with the horrible tales of police officers about the obstruction they encountered when they tried to clear the streets.

Again, the indictment clearly charged the defendants with conspiring to commit trespass and resist arrest, in language which the proverbial reasonable man would find to mean that they conspired to commit those acts themselves. But somehow it became accepted that what the indictment really meant was that they conspired to convince others to trespass and resist arrest. If Jensen had demonstrated that anyone had committed those acts, he might have persuaded the jury to convict, despite the fact that it would have rested on a technical misconception. In the end, however, he failed to establish that trespass or resistance had even occurred, a fact which enormously puzzled the jury and greatly weakened his case.

Jensen was forced by his own definition of his task to go beyond the details which he believed to be the core of the conspiracy and on to the political ground preferred by the defense. He had to offer into evidence not merely the fact that the defendants had attended meetings but what they had done while they were there. He found himself in a Pandora’s box, surrounded by the defendants’ political ideology as revealed in their speeches, their writings, their handouts. The defense did not have to worry about making it a political trial. Jensen did it for them.

Jensen’s pièce de résistance—perhaps what ultimately did him in—was the playing of a five-hour tape recording of the all-night campus rally that preceded the demonstration. He originally wanted to play only the speeches of Smith and Segal in support of his claim that they betrayed a criminal intent; Phillips ruled with the defense that the entire rally must be heard. The tapes were important for two reasons. In terms of common sense alone, they made a mockery of the charge of conspiracy. The rally was in a great tradition of open, democratic meetings. It was chaired by Mike Smith, but the microphone was open to all. Dozens of people spoke, continually contradicting each other’s politics, arguing, discussing every subject in the political world from Che to Gandhi. Opponents of the demonstration were heard as well.

Front Jensen’s point of view the tapes were also a disaster emotionally. They transported the jury to a political rally—in most cases, the first of their lives. The rally was a capsule of a significant moment in the movement’s history, a moment teetering away from pacifism but not yet veering toward violence. It was so serious and so good-spirited, so full of humor and human touches, so spontaneous and so earnest, so marked by an obvious bravado covering up the fear of the following morning— “They have the billy clubs and helmets but we have the people of the world on our side”—that the jurors could not help being moved. Mike Smith: “I wish some chicks would come up to the microphone because I like chicks.” There were skits. LBJ: “Sure we’re for peace—a piece of Mexico; a piece of Vietnam.” Voice: “Are you in favor of Proposition P?” New Voice: “I’m always in favor of a proposition.” At one point an unidentified person walked up to the microphone. “I think we’re pretty lucky to be living under the government we’ve got,” he said. “If this were Russia, we might all be on trial.”

When Jensen’s case was concluded the defense felt it had little to do; the attorneys considered resting without putting on any witnesses. In the end the impulse was rejected and they put on forty-seven: a carefully calculated “cross section of the community” that had participated in Stop the Draft Week. There was an ophthalmologist, a psychiatrist, a Lutheran minister, a Methodist minister, a quadriplegic psychologist, a former police officer, a World War II Air Force captain, a probation officer, a defendant’s wife, a dietician, a TV reporter, a Jewish grandfather of seventy, a Negro grandmother who gave the black power salute while swearing in, newsmen, professors, students. They all discussed why they had demonstrated against the war and described the police violence they encountered.

The purpose of their testimony was twofold: to clear the defendants of the insinuation, never technically a charge, that they were responsible for the presence and actions of thousands of others at the demonstration; and to establish that the police in clearing the streets acted so violently that they could not be said to be discharging their lawful duties, a circumstance in which it becomes legitimate to resist. But if the practical significance of the testimony was legal, its impact was moral and political. One by one the witnesses gave their reasons for joining the protest. “My son came back from Vietnam without a mind,” said the black grandmother. “I didn’t want another mother’s son to come back that way.” “I went out of a sense of responsibility,” said the Air Force captain, “to do whatever being another body on the street might do to end the war.” They insisted they were there because of their convictions and were not the puppets of any conspiracy. “Mr. Jensen, maybe you don’t understand HOW demonstrations occur,” one witness said patiently. “It’s because a lot of people feel strongly about the war.”

The defense of the Oakland Seven made no original contributions to the LAW. What it did was rarer far: it exposed the political motives of the prosecution, and it told the truth as the defendants saw it. It was directed specifically to the trial jury and was not designed, as the Spock case was, to build a record for appeal. It was never once implied that the defendants did not mean precisely what they had said, or that they regretted any of their actions.

Those of us WHO were doing the waiting in the sunny park across from the courthouse could not have guessed during the three days the jury WAS out that skill in selection, good luck, and the atmosphere of the case itself had made twelve citizens of Alameda County into a perfect jury. The jurors were the neutrals of the jury-selection process. They had held no strong opinions on any controversial issue; they had been convinced—and convinced Garry—they could be fair; one woman had expressed only bewilderment that the voting people involved in Stop the Draft Week had been “so passionate.” The jurors were a fair sample of the lower-middle-class suburbs of Alameda County, They were a housewife-receptionist, a black employee of the Post Office Department, a keeper of records for a large industrial firm, a tool and die maker in a defense plant, a carpenter, a Post Office transfer clerk, a bookkeeper in an electronics firm, an inspector in a General Motors plant, a retired Marine colonel, a construction supervisor at an atomic energy laboratory, a switchboard operator, and the wile of the owner of a substantial suburban business.

For their foreman they chose their youngest member, the closest they could come to producing a peer of the Seven—the wan, shy twenty-nine-year-old auto inspector for GM. During the eleven weeks the case was being tried, they did not discuss it among themselves. Nor did they discuss the war, the Panthers, campus violence, or any of the dozen other inflammatory subjects whose exploitation by the local press during the trial was the occasion for so many motions for a mistrial.

From my post-trial interviews with six jurors a certain picture emerges. The jury’s deliberations were framed by two things. First was the weakness of Jensen’s case. The jurors reported they were astonished when Jensen rested. “I could see he was driving somewhere,”one of them commented, “but he just got to the steep of the hill. He never reached the top.”Second was Judge Phillips’ instruction that most of the evidence against the defendants—their speeches, writings, and so forth— was protected under the First Amendment. Other instructions were also critical—one stating that the defendants’ belief in the illegality of the Vietnam War could be weighed by the jury in determining whether they had a criminal intent, others explaining that when the police are using excessive force, resisting arrest becomes a lawful act.

At the heart of the acquittal was the First Amendment: it was the sine qua non of the Oakland Seven victory. Yet thoughts and feelings beyond civil liberties were simmering in the jurors’ minds. The presentation of the entire case successfully created an atmosphere where the country’s deepest moral and political traditions were on trial. The jurors responded, each in his own way, yet each positively to the fundamental crisis of liberty and morality that the trial represented. Whatever they were as Americans, the jury brought to their deliberations. The Oakland Seven jury wanted to find the defendants innocent. “I tried to examine the prosecution’s argument,” commented one juror, the keeper of records in an industrial firm, “but I thought it meant, in other words, that people should be puppets, go along. If that were true, our democratic procedures wouldn’t be worth much. I’m not a puppet, I’m a free thinker. I wonder what the prosecution would have made of the Boston Tea Party, a ‘costly and disruptive demonstration.’ Our early leaders were all radicals, they had to be.” This juror, a man in his thirties, attended the postacquittal party. The colonel: “I was very caught up in the details of the case, but I also understood in a brief flash, if they could do that to these boys they could do it to anyone; they can stop all dissent.” A woman, the bookkeeper, was stirred even beyond most of her fellow jurors into the experience that leftists call “radicalization”: “Now I understand how dangerous being a fence-sitter can be. I was one of those people, I’m not too proud of it, who sat on my can all the time. People who do that are playing into the hands of the power structure. I can see why young people hate us. But I can never be neutral anymore.” She is reading Eldridge Cleaver —“to see why the defendants stood up for the Panthers"—and studying a book on the Vietnam War. The black member of the jury, a Post Office employee, found himself more stirred than he expected by the witnesses’ stories of police brutality. The night of the acquittal, as he was leaving the courthouse, he raised his arm to the defendants in the black power salute: the first, it seemed, he had ever given in his life.

History has already moved beyond the trial of the Oakland Seven. The war is no longer the issue it was when Stop the Draft Week took place. The left has moved on to other targets and other methods. The defendants felt vindicated, and they heard the verdict “not guilty” as a universal pronouncement on the validity of the movement. But the tactics for which they were vindicated were tactics which they were ready to move beyond. Similarly the prosecution was defeated but is by no means in retreat. In the fight over Peoples Park, the authorities of Oakland and Berkeley have raised the level of violence far beyond what it was in the fall of 1967. Perhaps the main consequence of the Oakland Seven trial is that twelve jurors were moved from apathy to affirmation. Presented with honest evidence about the motives and intentions of the left, they defied the repressive logic of their political authorities and said, “You cannot do it. Americans are still free men.” Twelve jurors were, as the left says, “organized,” and if that seems a small number, a high price, and a slow pace, it still may be a portent of more to come.