The Chicago 7: Trial Number 2
As trials go, it was both a nostalgia piece—a kind of No, No, Nanette of the federal court season—and a clumsy anachronism. Nostalgia, because here were the Chicago Seven, relics from that tense and painful past when the country was torn apart by the Vietnam War, back for a reprise of the good-old-terrible days of their bitter four-and-a-halfmonth confrontation with the government. Anachronism, because, at a time when the nation was waiting for quite another sort of trial, which could expose the culpability of its highest officials and test the viability of the governmental system itself, sizable resources and energies were meanwhile being spent on finding out whether these antiwar defendants and their lawyers had been guilty, during that original confrontation in 1969 and 1970, of contempt of court.
Inevitably, the revival fell far short of the original production. Whereas “the great conspiracy trial” (as one book about it was entitled) had elements of tragedy and comedy, this month-long trial had neither. Emotion was replaced, for the most part, with tedium. And the result was judiciously but frustratingly inconclusive. Of the original defendants, John Froines, Lee Weiner, Rennie Davis, and Tom Hayden were acquitted, and so was attorney Leonard Weinglass. Defendants Dave Dellinger, Abbie Hoffman, Jerry Rubin, and attorney William Kunstler were convicted on a total of thirteen specifications of contempt out of an original one hundred and sixty. But then they were spared punishment altogether.
The Chicago Seven had begun by being eight: Black Panther leader Bobby Seale was at first a defendant in the case. His boisterous and persistent demands that he be permitted to represent himself provoked Federal Judge Julius J. Hoffman to the extraordinary response of ordering Seale bound and gagged, but the move hardly brought order to the courtroom; quite the opposite. Thereafter Seale was severed from the conspiracy case, and in 1972 the government dropped contempt charges against him rather than reveal the results of wiretapping that intercepted his communications with his attorney while he was in jail during the conspiracy trial.
Seven or eight, it had always been an artificial grouping, the product of prosecutorial imagination in the aftermath of violent clashes between demonstrators and police at the 1968 Democratic National Convention in Chicago. Some of the defendants met for the first time when they were arraigned on April 9, 1969, on an indictment charging conspiracy and violations of the 1968 federal anti-riot statute. Soon enough, however, they came to symbolize a discontented, ideologically aroused counterculture (“a freaking, fag revolution,” trial prosecutor Thomas Foran called it). Celebrities overnight, they became the most demanded speakers on college campuses and at the Moratorium, the Mobilization. Mayday, and other Vietnam War protests. Hundreds of people lined up daily to compete for seats in the courtroom where the defendants clashed regularly with the prosecutors and with Judge Hoffman, who, in the euphemistic language of a federal appellate court opinion reviewing the case in 1972, displayed a “deprecatory and often antagonistic attitude toward the defense.”
After long deliberations, the jury convicted five of the defendants of crossing state lines to incite a riot at the 1968 Chicago Democratic Convention. It was this verdict that the U.S. Court of Appeals for the Seventh Circuit overturned in 1972, saying, “We are unable to approve the trial in this case as fulfilling the standards of our system of justice.” Although the Walker Commission, headed by a businessman who is now Governor of Illinois, declared after an independent investigation that the convention disorders included “a police riot,” companion cases against police officers were dismissed or resulted in acquittals.
But in the meantime, the case produced at least a dozen books, “radicalized” a number of newspaper reporters, brought the Weatherman faction of Students for a Democratic Society to the fore, and made Judge Hoffman a hero at the Nixon White House, where he was invited for breakfast. Above all, the trial resulted in a national outcry against “overzealous” anti-establishment lawyers, led by none other than Chief Justice Warren E. Burger. Burger pointedly addressed the American Law Institute, among other groups, on the need to discipline “reckless, irresponsible” advocates. Kunstler, who had handled many other controversial cases—he was counsel to Martin Luther King’s Southern Christian Leadership Conference, for example—was a special target of the drive, and before long some judges were refusing to accept his credentials.
It was that issue, the need for “order in the court,” which led to the retrial in 1973 of Judge Hoffman’s 1970 contempt charges against the defense. Hoffman, after keeping close tabs throughout the case on such affronts as the defendants’ failure to rise when he entered the courtroom, had, while the jury was deliberating, summarily convicted the entire defense of contempt and handed down sentences of as much as four years. Those convictions, too, were overturned on appeal, with instructions that the charges be brought before a different judge, a disinterested one. The Justice Department declined to reprosecute the substantive charges against the Seven. Attorney General Elliot L. Richardson was considering dropping all remaining contempt charges as well before his sudden resignation. When Richardson’s caretaker successor, Solicitor General Robert H. Bork, raised the prospect of throwing out the contempt case as “a liberal gesture,” he encountered opposition from James R. Thompson, Foran’s politically ambitious successor as United States Attorney for the Northern District of Illinois. Thompson swore to defense lawyers that the charges would be dropped only “over my dead body,” and flew to Washington on Saturday, October 27, for a conference in which he argued, against strong opposition, that “these prosecutions were a means of securing the reestablishment of the rule of law in American courtrooms, and it would be a cowardly thing to abandon them.” Insisting that “we would be breaking faith with every district judge in the nation” by dropping the charges, Thompson won his point. The contempt case went to trial two days later.
To the defendants, who felt that it was the original judge and prosecutors who should be punished for courtroom misconduct if anyone was, this trial seemed to be a lastgasp use of the judicial process by the Nixon Administration to stifle dissent—an attempt to discourage itinerant “movement lawyers” like Kunstler from turning up in controversial and volatile cases.
Capital “C”
“I can’t believe it’s only been four years,” said Rennie Davis, remarking on the extent to which the Seven —and the society—had changed since the ordeal in Chicago in the winter of 1969-1970. “Things have happened that usually take a whole lifetime.”
Indeed, Davis, who had once been a charismatic speaker capable of stirring thousands of students to political outrage, was now trying to turn them on to “the brilliant light inside yourself” as an adherent of the Divine Light Mission, and of its leader, sixteen-year-old Guru Maharaj Ji. In court, he seemed barely able to focus on the proceedings, as he smiled beatifically and meditated in a lotus position or passed out autographed copies of a paperback biography of the young Guru, considered by the Mission to be “the Perfect Master.” “The thing that is blowing my mind,” Davis explained at a moment when he might have been expected to be overjoyed about his acquittal, “is the recognition that there is something in this universe called Consciousness, with a capital C.”
Davis complained that his codefendants, once proud to be in the vanguard of social movements, were now intolerant of him and had “drawn conclusions” about his new beliefs without first hearing his exposition of them. But the others had their own preoccupations. Jerry Rubin, for example, was in the process of discovering his body. He flexed his chest until it nearly burst out of tight-fitting shirts, and he passed around a magazine article he had recently published, which said, “I do not have a body—I am my body. My toes and fingers think as well as my brain. The thoughts in my head block me from experiencing the sensations in my body. I think too much!” Abbie Hoffman, once the co-founder, with Rubin, of the Youth International Party (Yippies), seemed to have lost his standing as the movement’s best vaudeville performer. But then his moroseness was understandable; he faces a narcotics charge in New York under which, if convicted, he could be sentenced to life imprisonment. Tom Hayden, still active on the Vietnam issue through the Indochina Peace Campaign, appeared to have mellowed and softened since the original trial; but his possessive new wife, actress Jane Fonda, alienated some of his defense brethren. Dellinger merely seemed older, tired from militant activities dating back to before World War II, and was suffering from a recent knee operation.
There were other contrasts with the recent past. Gary Starkman, the young prosecutor under Thompson, who was still in law school at the time of the original trial, was occasionally testy or sarcastic, but not nearly as hostile in his role as were the original prosecutors, Foran and Richard Schultz. The judge this time was a calm and even-handed gentleman from Maine, Edward Thaxter Gignoux, reputed in some legal circles to be “the best federal district judge in the country” and mentioned a couple of years ago as a possible Nixon choice for the Supreme Court. Designated by Chief Justice Burger to preside over the contempt trial, Gignoux ostensibly enjoyed the excitement of and interest in the case, and at one point he welcomed photographers from the Chicago newspapers during a lunch break. Gignoux’s New England tolerance (unruffled even when Abbie Hoffman’s small son, america, played on the courtroom floor) and the absence of a jury—eliminated because the government cleverly sought no penalty greater than a six-month jail sentence this time around—served to defuse some of the passion that might otherwise have affected the trial. If so, those factors also prevented the defense from raising the money and public support that went along with the original hotly contested cause célèbre.
The “crimes” on trial in the contempt case lost some of their meaning, perhaps, when listed back-toback on the cold printed page, but even after Thompson narrowed them down to the fifty-two most serious specifications, they hardly seemed worth all the fuss and the reopening of what Thompson himself acknowledged were “old wounds on the body politic.” They ranged from the bizarre (Abbie Hoffman asking the judge, “How is your war stock doing, Julie?”) to the desperate (Davis telling the jury that Seale “was being tortured while you were out of this room”) to the bold (Kunstler telling Judge Hoffman, “Your Honor, this is an unholy disgrace to the law that is going on in this courtroom and I as an American lawyer feel a disgrace”).
While the prosecution case this time around consisted simply of submitting the transcript of the 1969-1970 trial, which assistant prosecutor Starkman said was rife with self-evident contempt, the defense sought to build upon that “sad and sorry record” by bringing forward some of the evidence that Judge Hoffman had never admitted. Former Attorney General Ramsey Clark testified, for example, that the original conspiracy indictment came from a grand jury convened, despite Justice Department objections, by a Chicago federal judge who was angry about the convention disturbances. Other judges took the witness stand to say that they had never had trouble with Kunstler’s courtroom conduct.
It was the defense’s contention that the outbursts during the conspiracy trial had invariably been provoked by the trial judge or prosecutors and, therefore, that conduct which would otherwise be considered contemptuous was, under the circumstances, excusable. One viewessential to the defense case now, but not explicitly arguable for reasons of tact and pragmatism, was that the Seven had not been willing then, especially in the context of a highly visible political case, to sit back and endure Judge Hoffman’s treatment and wait for vindication years later (it took exactly thirtythree months) through reversal on appeal. Indeed, Gignoux, in declining to punish further the four men he convicted, declared that the contempts, with the exception of the occasion when defendants Hoffman and Rubin wore mock judicial robes to court, “can in each instance reasonably be said to have been in response, albeit, as the court has found, an excessive response, to peremptory action of the judge.” He also noted that he found the conduct of the Seven and their lawyers during these contempt proceedings before him to be “exemplary.”
Entirely unrelated government prosecutions have been affected by the Watergate proceedings. When the defense presented a former Army intelligence officer, for example, to testify that his unit had infiltrated and spied on the Chicago Seven offices during the original trial, he sounded plausible even though his testimony was vague and unsubstantiated on a number of crucial points. It worried the prosecution enough to spend nearly a week rebutting the ex-agent, bringing witnesses from as far away as South Korea. There were even private tapes, made by a court stenographer to assure the accuracy of her transcript and apparently discovered by the prosecutors only a week before the contempt trial (although a copy of them had long since been sold by the stenographer to a Hollywood movie producer for $10,000). On one reel, Judge Hoffman could be overheard making indiscreet remarks about the defense to another judge visiting his chambers.
Gignoux, surprisingly, seemed to acknowledge the view that the original conspiracy case was, in effect if not by design, a political trial during which people were challenged as much for their ideas as for their acts and in which their life-style may have resulted in their being treated unfairly. But Judge Gignoux warned against the idea that this position “gives them license unilaterally to dispense with the standards of civility to which American lawyers and litigants customarily adhere in criminal as well as civil trials. It is precisely to preserve the opportunity for the fair and dispassionate resolution of strenuously contested disputes by an impartial tribunal that rules governing the behavior of all actors in a trial exist.” What he left unsaid is that those rules can be strained to a dangerous limit when the government seeks to make a political example through the judicial process.
At the same time, the result permitted the system some institutional face-saving. It allowed for the claim, by those who cannot admit or do not believe that the whole affair was an abuse of the process, that these guilty findings, however symbolic, vindicate the original prosecution. For Kunstler, the symbolism was significantly outweighed by the likelihood of disbarment proceedings. He was considering an appeal of the contempt conviction; nonetheless, he told Gignoux that he felt proud of his status: “I may not be the greatest lawyer in the world, your Honor, but I think that I am at this moment . . . the most privileged. ... I am being punished for what I believe in.”
For others, like Jerry Rubin, the tentative conclusion of a long struggle was enough, even without victory or martyrdom. “Hey, Jerry,” called out Weinglass as they were leaving the federal building, “are you going to appeal?”
“No. Why should I?” Rubin answered.
“Well,” cut in a friend, “what if you want to run for President?”
“Oh, it’s only a misdemeanor,” Rubin said. “Nobody will care.”
— SANFORD J. UNGAR