When indictments were returned against Dr. Spock and four others for conspiring to counsel, aid, and abet violations of the Universal Military Training and Service Act, the newspapers predicted a trial that would make social and legal history. Headlines gave it advance billing as a spectacular: “SPOCK TRIAL MAY BE THRILLER” (Washington Post),“A LANDMARK CASE OF CONSCIENCE AND THE LAW”(Life magazine), “CHALLENGE TO THE DRAFT” (New York Times). It would provide, the editorial writers said, the forum for a court challenge to the legality of the Vietnam War and hence of the draft, a crucial test case to explore and define the permissible limits of dissent guaranteed under the First Amendment. The eyes of the nation, indeed of the world, would be on the Boston courtroom, watching the outcome of a contest between the United States government and some of its most distinguished critics.
The defendants themselves, some of whom had actively sought prosecution for the purpose ol testing the legality of the war and of the draft, also anticipated a serious adjudication of these issues. “I’d be delighted if the government would prosecute me!" Dr. Spock had said. Asked in the course of the trial what he had had in mind, he replied, “I meant that if the government chose to prosecute me, I would be glad to have this opportunity to prove that we were right.”
Perhaps it was ingenuous of the defendants to believe that the government would permit them to put its fundamental policies on trial; ii so, this was a naïveté shared by a sizable section of the press. Yet in a way never anticipated by the protagonists, the prosecution did serve a public interest. If the trial did not deal with the issues the defendants had tried to raise, it did lay bare some unpleasant truths about the nature of political prosecutions, and helped to dispel some illusions, persistently clung to by dissenters through the ages, about the efficacy of the courtroom as a forum for the exposition of ideas. Galileo, Joan of Arc, Thoreau, Bertrand Russell, Sacco and Vanzetti, Tom Mooney are remembered more for their post-trial comments from jail, at the stake, or en route thereto, than for any ringing pronouncements quoted by the press in reporting their trials.
In the course first of seeking to discover the reasons why the government chose to indict Dr. Spock and the others at this particular time, and later attending the trial in Boston, at which four of them were found guilty of criminal conspiracy, I began to see the whole proceedings of a political trial in terms of an elaborate theatrical production. The staging—the courtroom setting with all the hallowed panoply of Anglo-American justice—is carefully designed to create the illusion ol meticulous fairness. Are not the defendant’s rights fully protected every inch of the way? “Clothed in the presumption of innocence,”as the lawbooks say, he comes on with counsel of his choice, and has the right to cross-examine witnesses against him, to be tried by a jury of his peers sworn to consider the evidence impartially and to acquit him unless guilt is proved beyond a reasonable doubt.
Yet in reality the presumption of innocence is a chilly and threadbare piece of costumery, and the reasonable doubt a bit of scenery soon moved off by the stagehands.
For the prosecutor has what film folk call “creative control,” as producer, scenario writer, and casting director. He puts the package together (after consultation with his backers, or promoters, in Congress and the Administration) , giving careful consideration to what kind of production will best please this year’s public taste. It is the prosecutor who diagrams the action by deciding which laws to enforce and what offenses to charge, for the law is a Pandora’s box which in political cases the prosecutor can open or close at will. He rejects many a script, for often he finds it expedient not to prosecute.
In going after war protesters, prosecutors have at their disposal an assortment of federal statutes, state laws, city ordinances that they can invoke: shall the charge be violation of the draft law? Or counseling, aiding, and abetting violations? Or conspiring to counsel, aid, abet? Or trespass (blocking the sidewalk during a demonstration) ? Or disorderly conduct? Or conspiracy to commit trespass and disorderly conduct? Or shall it be violation of the Espionage Act of 1917, which makes it illegal to interfere with recruitment and enlistment into the armed forces?
As for who shall be cast in the leading role as defendant, the choice is vast, for (as I discovered during the Boston trial) a successful prosecution can be brought under one or another of these laws against just about anybody who has expressed himself against the war by participating in a demonstration, signing a statement in favor of draft resistance, or even attending a public meeting at which the speakers advocated draft resistance.
All the defendants first learned they had been indicted from the press. The Justice Department, with a fine flourish of incivility, hand-delivered its releases to the media and then mailed the indictments to the defendants’ homes.
Thus Marcus Raskin, co-director of the Institute for Policy Studies, got a phone call at his office in Washington from a UPI man: “We wondered if you would care to make a comment?”
“A comment on what?”
“On the indictment.”
“Well—it says here—let’s see—you’ve been indicted along with Dr. Spock; Reverend William Sloane Coffin, Jr., chaplain of Yale University; Mitchell Goodman, a New York writer; and Michael Ferber, a twenty-three-year-old Harvard graduate student, for ‘a continuing conspiracy to aid, abet, and counsel violations of the Selective Service law.’ ”
“You’ve got to be kidding!”
And so it was with three of the others. No fleet-footed courier double-knocked on their doors crying, “Open up, open up in the name of Ramsey Clark!” UPI, AP, and the New York Times stood in for the harbinger of tidings, with the assistance of Ma Bell.
But Dr. Spock had been out all day on various errands and could not be reached by telephone. Coming home in the afternoon on the subway he saw a headline over his seatmate’s shoulder: “SPOCK INDICTED.” “I was dying to read it, but the man kept twitching it away just out of my sight. I felt like saying to him, ‘But that’s me! I want to see what I’ve been indicted for!’ ”
Michael Ferber, who grades English papers at Harvard University, sat down to correct his indictment when it arrived. Offended by the redundancies (“combine, conspire, confederate, and agree”) , the split infinitives (“to unlawfully, knowingly, and willfully counsel, aid, and abet”), the misspelling of “fabricoid” (spelled with a “k" in his dictionary) , and the word “co-conspirator,” which he could not find in any dictionary, he gave the document a C-, and wrote in the margin, “You should do better. See me”—which they eventually did.
The indictment, returned by a federal grand jury in Boston on January 5, 1968, charges that the five conspired “with each other, and with diverse other persons, some known and others unknown to the Grand Jury,” to counsel, aid, and abet violations of the Selective Service law and to hinder administration of the draft. In addition, the elder four are charged with conspiring to “sponsor and support a nation-wide program of resistance” to the draft.
It cites a number of “overt acts” committed in furtherance of the conspiracy:
In August, 1967, Coffin and Spock “distributee! and caused to be distributed ... a statement entitled ‘A Call to Resist Illegitimate Authority.’ ”
On October 2, 1967, Coffin, Goodman, Raskin, and Spock “held a press conference” at the New York Hilton Hotel.
On October 16, 1967, Michael Ferber and William Sloane Coffin, Jr., addressed a meeting in the Arlington Street Church in Boston, at which Coffin accepted draft cards turned in by Selective Service registrants.
On October 20, 1967, Coffin spoke at a demonstration outside the Justice Department, after which he, Raskin, Spock, and Goodman entered the Justice Department and together with other “coconspirators abandoned a fabricoid briefcase” containing draft cards collected at various demonstrations throughout the United States.
How did these five wind up as accused conspirators? They hardly knew each other. Dr. Spock and Mr. Coffin had met glancingly on speakers’ platforms; Michael Ferber had once exchanged a few words with Coffin in a church but had never spoken to any of the others. Four of them (Spock, Coffin, Raskin, and Goodman) had some months before participated in an eleven-man delegation to the Department of Justice; but in their busy lives this brief encounter hardly constituted acquaintance. When for the first time all five met together —after the indictment, in Attorney Leonard Boudin’s living room, to discuss their common plight —Boudin says the first thing he felt he could do for these conspirators was to introduce them to each other.
Games Prosecutors Play
There was much speculation in the antiwar movement about the genesis of the prosecution. Was it ordered, custom-made, by LBJ? Were there high-level, far-into-the-night deliberations involving flags on maps and Gallup polls? On what signal, from what source, do you indict Dr. Spock for conspiracy in an election year? Why and how were these five picked?
The tangled chain of events that led to the indictments originated, I learned, in the flag-draped office of General Hershey.
On October 26, 1967, in the aftermath of Stop the Draft Week demonstrations, Hershey clashed off a letter to the 4081 local draft boards recommending that the delinquency provisions ot the Selective Service regulations be invoked against antiwar demonstrators. He advised the boards that “misguided registrants" who participate in “illegal demonstrations,”who interfere with recruiting or otherwise violate provisions of the Selective Service Act, should forthwith be declared delinquent, reclassified 1-A, and subjected to immediate induction. “Deferments are only given when they serve the National interest,” he wrote.
It is obvious that any action that violates the Military Selective Service Act or the Regulations, or the related processes cannot he in the National interest. It follows that those who violate them should be denied deferment in the National interest. It also follows that illegal activity which interferes with recruiting or causes refusal of duty in the military or naval forces could not by any stretch of the imagination be construed as being in support of the National interest.
Twisting the knife, Hershey said that the delinquency procedure should be applied to all registrants up to thirty-five years of age, and that registrants in class 4-F or 1-Y found to be delinquent should “again be ordered to report for physical examination to ascertain whether they may be acceptable in the light of current circumstances.”
The effect of Hershey’s letter was to invest the local draft boards with the powers of prosecutor, judge, and executioner over the registrants in their jurisdiction, if it decided that a registrant’s activities were “illegal” or “not in the national interest,” the board could then proceed to mete out swift punishment in the form of immediate induction into the armed forces. Some local boards went to work with a will: they reclassified (1-A) divinity students (who are specifically exempted from the draft by act of Congress) : members of Students for a Democratic Society, an organization they deemed to be “not in the national interest and in one case a totally disabled paraplegic, who appeared in a wheelchair at the Oakland induction center for his physical examination.
This use of the draft as a bludgeon to silence opposition to the war triggered the widest outcry that had yet been heard against Hershey’s administration of the Selective Service system.
The letter was angrily denounced by the New York Times, the American Association of University Professors, the National Students Association, and then Supreme Court justice Abe Fortas, who said that General Hershey was “a law unto himself and responds only to his own conversation. The ACLU and the National Council of Churches filed suit on behalf of six war protesters who had been reclassified 1-A pursuant to the Hershey letter. Kingman Brewster, Jr., president of Yale University, called it “an absolutely outrageous usurpation of power.” and several colleges and universities announced they would ban army recruiters from their campuses until the directive was revoked. General Hershey, now fighting a rearguard action, said all this was “so much hocus-pocus,” and told the Times: “The letter is only an opinion, because I don’t have any power to direct local boards.” He added plaintively, “Under the First Amendment, which they treasure so highly, I have just as much right as they do to state my opinion.”
At this point the Justice Department moved in to pour oil on these troubled waters. On December 9, a highly publicized joint statement was released over the signatures of Attorney General Ramsey Clark and General Hershey announcing formation of a special unit in the Criminal Division, under the direction of John Van de Kamp, to speed up investigations and prosecutions of violations of the Selective Service Act and “related statutes” (for which read the Espionage Act of 1917), with special attention to violations of the “counsel, aid, or abet” provisions and the “obstruction ot recruiting” provisions.
There is something for everybody in the memorandum. It upholds General Hershey’s policy of declaring delinquent, reclassifying, and subjecting to immediate induction registrants who fail to have their draft cards in their possession, fail to report for examination, or give false information. It promises to prosecute the reclassified registrant who refuses induction. It calls upon local law-enforcement officials throughout the country to “prosecute vigorously violations of local laws which may occur in demonstrations against the Selective Service System.” And in a curiously ambiguous paragraph it seeks to still the fears of college presidents and editorial writers:
Lawful protest activities, whether directed to the draft or other national issues, do not subject registrants to acceleration. . . . The lawful exercise of rights of free expression and peaceful assembly have incurred and will incur no penalty or other adverse action. These rights are guaranteed by the Constitution. They are vital to the preservation of free institutions, which our men in Vietnam are fighting to protect.
Two days after this ringing affirmation of First Amendment rights was issued, Van de Kamp and his colleagues went to work on the Spock case. Why?
The answer given to me by John Van de Kamp was unexpectedly frank. He said: “The prosecution came about as a result of our flap with Hershey about his October 26 letter to the draft boards. The prosecution of these five was thought to be a good way out—it was done to provide a graceful way out for General Hershey.” The reason they were singled out, said Mr. Van de Kamp, was that because of “their names and personalities” the government managed to subpoena a large amount of television newsreel footage of these five. “We wouldn’t have indicted them except for the fact there was so much evidence available on film. They made no great secret about what they were doing. “ It all seemed so breathtakingly simple and matter-of-fact, the way Mr. Van de Kamp told it. If one believed him literally, one would have to infer that Dr. Spock and the others were offered up in unabashed response to political pressures, as a sacrifice to assuage the feelings of an irascible old man who had just been publicly rebuked by the Department of Justice for overstepping his authority and becoming an embarrassment to the Administration. And backing up General Hershey, that strange permanent fixture in the Washington scene, were his many friends in Congress, demanding, as did Representative Edward Hébert of Louisiana, “Let’s forget the First Amendment. When is the Justice Department going to get hep and do something to eliminate this rat-infested area? At least the effort can be made.” While appeasing these strident and bothersome voices of the far right, the prosecution would also serve as a pointed warning to the respectable dissenters who were beginning to be seen on television marching for peace, along with the longhairs—all those suburban housewives pushing prams, those wellgroomed executives in their thirties, those haunted, despairing parents of draft-age sons—to stay off the streets, away from meetings, and above all to keep out of range of the TV cameras.
John Van de Kamp, who was formerly U.S. Attorney in Los Angeles, did not conform to my preconceived idea of a person engaged in this line of work. I suppose I was expecting a stone-faced, closed-minded bully of the Senator Joseph McCarthy stripe. In fact, he is mild-mannered and outgoing, a good public relations man, concerned with the “image” of the Justice Department. He must have reached maturity about the time that that word was appropriated by press agents to mean not so much a true likeness as a desirable representation. He let slip the fact that he reads the New York Review of Books (although later, after listening to the government’s evidence in the trial, it occurred to me that this may be in the course of official duty) . He told me that he is a bit too old, at thirty-five, to be a Spock-raiseed baby, and that being single, he had never read Baby and Child Care before he became involved in the prosecution of Dr. Spock. He read it after the indictment was issued and thought it very good.
“The case came to the attention of the Justice Department when the delegation turned in the draft cards here on October 20,” he said. “But the activities of the defendants were known of before: the FBI, as a general security precaution, had kept them under surveillance. October 20 was significant —the plans for that day had been announced before, in press conferences; then they appeared here, and a lot of that was on film, too. My unit got the evidence together and commenced working on the case on December 11, and I worked all through the Christmas vacation on it. ”
He went on to explain that “draft activities have changed drastically in the past few months. We didn’t have this situation in May, 1967. We’re trying to get those who oppose the war to use legal political avenues to express themselves—for instance, they could support McCarthy, or Kennedy. These five were justifying their activity on the basis they had no other recourse, which isn’t so. The case was not brought up to buoy the hopes of servicemen in Vietnam, but to set guidelines for action within a legal framework.”
Van de Kamp maintained that the White House had no part in the decision to prosecute the five, and was not even informed of it until the day the indictments were returned. The way he tells it, George Christian, White House press officer, called up the Department of Justice in a routine way that afternoon to inquire if there was “anything new,” and was told, “Oh, yes! We’ve just indicted Dr. Spock and four others for conspiracy.” (An eminent and knowledgeable federal judge told me later he thinks Mr. Van de Kamp must be either lying or misinformed about this, and he repeated the rude story about LBJ saying “1 don’t want nobody on my staff unless I got his pecker in my pocket.” In Johnson’s Administration, said the judge, one would not indict Dr. Spock without first consulting the President.) According to Van de Kamp, even General Hershey was told only the day before the indictment—“That is, we specified the kind of indictments, but we didn’t tell him the names of the defendants.”
Mr. Van de Kamp, for one, does not want the government cast in a repressive image. I asked whether he anticipated a lot of additional prosecutions. “There are lots of cases under investigation,” he said, “and we’re trying to get the Bureau [Justice Departmentese for the FBI] to get what we need. Counseling on the draft takes several forms. The Quakers are entirely legitimate; they basically provide a counseling service on the draft law. But other counseling services are proliferating, urging that draftees resist the law, whereas the Quakers are trying to operate within the framework of the law.”
Mr. Ben Seaver, a leading California Quaker with whom I later discussed this, was most indignant to hear this milquetoast interpretation of their activities. “We have circulated far stronger ‘aid and abet’ statements than those sponsored by the defendants,” he said. “We will support anyone who in conscience refuses to cooperate with Selective Service. But this isn’t the first time the government has pushed the Friends aside when it comes to prosecuting; they just don’t want to tangle with us.”
What of public reaction to the prosecution? “I got a lot of letters from mothers protesting Spock’s indictment—hundreds of them wrote. They said, How can you do this to this great man who has devoted his life to humanity?’ ‘ Van de Kamp’s answer to the mothers’ question was contained in a form letter that said in part; “It would not be proper for the Department of Justice to comment about a pending case. I can assure you that this Department is dedicated to the protection of the lawful exercise of rights of free expression and peaceable assembly . .
I asked about newspaper reaction, and mentioned that I had seen long and thoughtful articles in Life, Look, and the New York Times Magazine that had seemed to champion the defendants’ cause, characterizing them as patriots and men of conscience rather than criminals, but Mr. Van de Kamp dismissed those as “puff pieces for Spock and Coffin.” On the whole, he said, the press had welcomed the indictments: “Ninety-five percent of the editorials say it’s about time there was a confrontation. I was pleased, as I was very much concerned that this might be considered a repetition of the Palmer Raids of the 1920s” (in which many thousands were arbitrarily imprisoned or deported because of suspected radical beliefs) .
Why were the defendants accused of conspiracy, I asked, instead of simply “counseling, aiding, and abetting”? “For good reasons, but I can’t answer that,” said Mr. Van de Kamp mysteriously. “It’ll come clear to you at the trial.”
It is serious reflection on America that this worn-out piece of tyranny, this drag-net for compassing the imprisonment and death of men whom the ruling class does not like, should find a home in our country.
The law of conspiracy is so irrational, its implications so far removed from ordinary human experience or modes of thought, that like the Theory of Relativity it escapes just beyond the boundaries ol the mind. One can dimly understand it while an expert is explaining it. but minutes later it is not easy to tell it back.
This elusive quality of conspiracy as a legal concept contributes to its deadliness as a prosecutor’s tool and compounds the difficulties of defending against it. It is hard to find an antidote for the poison you cannot identify.
The experts themselves have trouble with it. Supreme Court Justice Robert H. Jackson called conspiracy “that elastic, sprawling and pervasive offense . . . so vague that it almost defies definition.”A legal text writer puts it less elegantly: “In the long category of crimes there is none more difficult to confine within the boundaries of definitive statement than conspiracy.”An English author remarks mournfully: “No intelligible definition of ‘conspiracy’ has yet been established.”The lawmakers brazen it out by simply defining the crime in terms of itself. For example, the California Penal Code reads: “Conspiracy defined: If two or more persons conspire to commit any crime . . .”
A conspiracy, then, is a conspiracy.
The origin of the conspiracy doctrine is to be found in the murky past of English medieval history, in a series of statutes dating from the reign of Edward I. Ironically, these early statutes were intended to protect individual rights; specifically, to prevent false and malicious prosecutions. There was a built-in safeguard: people accused of bringing false accusations could be prosecuted for conspiracy only after the person wrongfully accused had been exonerated in a court of law.
Three centuries later, the notorious Court of the Star Chamber stood this idea on its head, where it remains today. In 1611 the Star Chamber declared that the essence of the crime of conspiracy lies in the agreement—not in a crime committed, but in the planning ot a crime.
Thus conspiracy law relieves the prosecutor of the necessity of proving any actual wrongdoing by the defendant. As Clarence Darrow put it, if a boy steals candy, he has committed a misdemeanor. If two boys plan to steal candy but don’t do it, they are guilty of conspiracy, a felony.
Because of this extraordinary feature, conspiracy has long been favored by prosecutors as a means to convict union organizers, radicals, political dissenters, opponents of governmental policies, and other troublesome individuals who could not otherwise he put behind bars.
In America, it was first used in 1806 against labor in the famous Philadelphia Cordwainers case, in which the court ruled that a strike (an agreement of journeymen shoemakers to “withhold their labor" from their masters) with the object of securing an increase in wages was a criminal conspiracy. The point is that for one man, or even several, to withhold their labor would not have been a crime. The crime lay in the agreement of a group to do so. (When, in 1821, a group of journeymen sought to turn the tables and convict the employers for combining to depress wages, the court held it was not criminal because the employers had combined to resist the oppression of the journeymen! “When the object to be attained is meritorious, combination is not conspiracy,” the court explained.) Until concerted labor activities were legalized more than a hundred years later, during the New Deal, conspiracy was used again and again as a convenient and effective weapon for the suppression of labor unions.
Conspiracy had a great revival in the days of Senator Joseph McCarthy’s ascendancy. In 1948, it was invoked against leaders of the Communist Party, who were charged under the Smith Act with “conspiring to advocate” the overthrow of the U.S. government by force and violence. Here we are two steps away from the crime itself. The defendants were not charged with committing acts of violence (except possibly against the English language, their use of which was called “Aesopian” by the prosecutor), or even advocating force and violence. A mild and peaceful lot by today’s standards, they were convicted, each and all, with monotonous regularity, by jury after jury, of conspiring to advocate the violent overthrow of the government at some unnamed time in the future. Eventually most of the convictions were reversed by courts of appeal or the U.S. Supreme Court, but the reversals were all based on technicalities; the basic conspiracy doctrine was left undisturbed by the Court’s rulings.
The Rosenbergs went to their deaths, and Morton Sobell was sentenced to prison for thirty years, not, as is popularly supposed, for espionage, but for conspiracy to commit espionage, the government having no proof that they actually transmitted atomic secrets to the Russians. The record in the Rosenberg-Sobell case has never been reviewed by the U.S. Supreme Court.
To the layman, the principal characteristics of conspiracy law seem wildly implausible, because they run counter to all ordinary definitions and all preconceived notions of how justice and due process are supposed to work.
In the first place, the government maintained that the conspiracy need not be secret, it may be carried out in full and open public view. The Shorter Oxford Dictionary defines conspire as “to combine privily,” and quotes Lord Clarendon as saying, “In all conspiracies there must be great secrecy.”But the law does not take account of the customary meanings of words. Although all of the acts charged against the Boston defendants were carried out in a blaze of publicity (and the government never suggested otherwise) , the prosecutor argued and the judge ruled that this was no defense to the conspiracy charge.
The fact that the defendants were largely unacquainted with each other was, I was told, irrelevant. It is not necessary that the accused know each other, or know the names of unindicted members of the conspiracy, nor do they ever have to have corresponded or conferred to formulate their plans.
As Mr. Van de Kamp predicted, the reasons why the government found it highly advantageous to indict the five defendants for conspiracy, rather than for the “substantive acts’ of “counseling, aiding, and abetting” the violation of the draft law, did become clear at the trial.
In the trial of a conspiracy case many of the procedural safeguards available to the defendant in an ordinary criminal case are suspended. From Van de Kamp and others, I learned about some of the exceptional rules that apply to conspiracy cases only, which make conspiracy such a handy charge to use in political cases;
Each member of a conspiracy becomes liable for the statements and actions of every other member, whether or not he has ever met the other members, whether or not he is aware of what they said and did. Only Ferber and Coffin were present at the Arlington Street Church ceremony at which draft cards were turned in, but the other three defendants were equally liable for everything that went on even though they were unaware of this rally until they read about it in the indictment.
Anybody who commits an act intentionally to further the objectives of the conspiracy becomes a member of the conspiracy. It is the position of the Department of Justice that this could include, for example, all 28,000 signers of “A Call to Resist Illegitimate Authority,” all who voiced support at rallies where the defendants spoke, even newsmen who reported their speeches sympathetically. Furthermore, the hearsay statements of any one of these persons, whether or not he had been indicted as a conspirator, could be used as evidence against all of the others.
Accusations of crime are normally required to be specific as to time and place. In conspiracy cases, however, the prosecution is allowed extraordinary latitude. The sprawling indictment against the live, for example, gives the date of the crime as “From on or about August 1, 1967, and continuously thereafter up to and including the date of the return of this indictment,” January 5, 1968. Yet August 1, it turned out, was an arbitrarily selected date, for all of the defendants had been engaged in the very activities for which they were later indicted for months or years before August. Nothing in their lives changed on that magic date. August happened to be the month when “A Call to Resist illegitimate Authority was first being circulated, and thereafter came the press conferences, rallies, and so on at which some of the defendants happened to be together.
Likewise as to place. The indictment, girdling the globe, alleges the crime to have been committed in “the District of Massachusetts, the Southern District ol New York, the District of Columbia and elsewhere” (emphasis added).
This leads to another handy conspiracy exception that permits the government to pick the place of the trial. Ordinarily, under the Sixth Amendment, an accused has the right to be tried in the state and district where the crime was committed. But in a conspiracy case the prosecutor can choose the place for the trial from among any of the districts where he has alleged that “overt acts" occurred. The core of the government’s case against Dr. Spock and the others was events that took place in New York and Washington: the October 2 press conference, the demonstration at the Department of Justice, the distribution of “A Call to Resist Illegitimate Authority.” Yet the government found it expedient to try the case in Boston, the site of but one of the overt acts, the service in the Arlington Street Church, in which only Coffin and Berber had taken any part.
The overt acts cited in a conspiracy indictment may be entirely innocent (a telephone call, a chance encounter), and the evidence may be entirely circumstantial. All the government has to prove, as the prosecutor of “The Five’ said, is “an understanding, a meeting of the minds, implied or tacit.” In the words of Justice Jackson, “a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. Again, a conspiracy is a conspiracy. Little wonder that Judge Learned Hand called the conspiracy doctrine “the darling of the modern prosecutor’s nursery.”
Ordinary rules of evidence are changed. In nice, tidy crimes such as murder, or soliciting for immoral purposes, it is incumbent on the prosecutor to prove that the defendant actually did it. Had the government charged the Boston defendants with “counseling, aiding, and abetting” draft refusal, it would have had to produce some evidence that they had succeeded in persuading Selective Service registrants to violate the draft law. Presumably, the prosecution would have had to round up some young men to testify that they were influenced to turn in their draft cards because ot something Dr. Spock said on television, or something William Sloane Coffin, Jr., said in a sermon, which would not have been an easy task. In a conspiracy case, the prosecutor has no such burden. It is not necessary for him to prove that the accused accomplished any of the objectives of the alleged agreement, for the crime is the agreement itself, and the case rests entirely on intent.
In this connection, General Hershey himselt told me there had not been any increase in the incidence of draft refusal because of Dr. Spock’s activities. He said, “None of these people have done more than irritate us in doing what we’ve got to do. We’re dealing with an oversupply. In Oakland, for example, we ended up with everyone inducted—there was not a person who promised to come to Oakland for induction who failed to show up.” (General Hershey was referring to demonstrations at the Army Induction Center in Oakland during Stop the Draft Week of October, 1967, in which some five or six thousand participated.) Then, are there no cases, I asked, where the demonstrations prevented anyone from being inducted, or front enlisting? Has anybody been prevented, stopped, or discouraged from going? “No, I don’t think so,”answered General Hershey. “They stopped them for some minutes in Oakland, that was all.”
Furthermore, the Boston defendants were accused of conspiring to do something that, as a matter of explicit policy, the government does not consider an indictable crime. The joint memorandum issued by Hershey and the Justice Department specifies that Selective Service registrants who violate the regulations shall be reclassified 1-A.
I asked General Hershey what happens when draft cards are turned in. He answered, “There’s no disagreement between the Justice Department and us that a boy who turns in his card can be reclassified rather than prosecuted. We prefer to get him to perform his obligation. The effort should be reformative rather than ‘get-even.’ ” Van de Kamp concurred in this: “The policy is to turn the draft cards over to local boards, to give the registrants a grace period to reconsider. If the registrant refuses to report for induction, then he’ll be prosecuted, but the strategy is to wait until that time.”
In the light of all these revelations about the workings of the conspiracy doctrine as applied to the facts in die Boston case, the editorials which, as Van de Ramp told me, “welcomed the indictment and said it was about time there was a confrontation” make interesting reading. It turns out that the welcome was based on a complete misunderstanding of the nature of the case against the five.
The New York Times, in an editorial published shortly after the indictment, baldly misstates the charge, saying the five are accused of “counseling young men to violate the draft.” Nowhere, in seven paragraphs, does the editorial mention conspiracy. Proceeding from this wrong premise, the Times concludes:
The legal challenge to the draft and the war which has been posed by the actions of Dr. Spock and others belongs in the courts where it has been placed by the Federal indictments. The moral questions raised by the far-reaching acts of deeply troubled citizens are matters of concern for every American.
James Reston, writing in the same vein, says,
The United States Government has now brought the fundamental philosophical issue of the Vietnam war into the courts. . . . Spock and Coffin, with the help of the Government’s indictment, have raised the basic question: Is the war not only legally but morally right? Is it an offense to oppose the war or to support it?
Clayton Fritchey, in the New York Post, hoped that prosecution of these five might “prompt reassessment of the Vietnam war, especially the constitutional and moral aspects of it,” in much the same way that prosecutions under the Volstead Act focused attention on the shortcomings of Prohibition.
There are certainly some pertinent questions about the present Selective Service System that could stand review, and it will surely be more helpful to thrash them out in the courts than in the streets. Since both the President and Congress have shied away from a formal declaration of war over Vietnam, it will be interesting to see what the courts may have to say about this as it affects the draft.
All three are dead wrong. The government never intended that there should he a “reassessment of the Vietnam war” or a “legal challenge to the draft and the war"; it took care to avoid bringing “the fundamental philosophical issue of the Vietnam war into the courts"; the indictment is specifically tailored to avoid “the basic question: Is the war not only legally but morally right?”
Had the government charged the defendants with “counseling, aiding, and abetting,” there could have been a fighting chance of the confrontation sought by the defendants on the issue of the legality of the war and hence of the draft law. Instead, the government used the shabbiest weapon in the prosecutor’s arsenal: the conspiracy charge.
How far could the government push its conspiracy theory? I showed John Van de Kamp a copy of Dr. Spock on Vietnam, an original paperback published by Dell three months after the indictments were handed down. In the foreword, Dr. Spock discusses “A Call to Resist Illegitimate Authority,” which is Overt Act #1 of the indictment:
Older men were invited to sign the statement in order to give the resisters moral and financial support and to share with them the risk of fine years in jail. I was one of those who made suggestions for the wording of the statement and was one of the original signers. I believed that draft resistance could become an even more powerful force than political action in compelling the Johnson administration to end its illegal war.
And in the last chapter, “What the Citizen Can Do,”Dr. Spock suggests that “if first 100,000, then 200,000, then 500,000 young American men refuse to be drafted—or, it they are already in the armed forces, refuse to go to Vietnam—they will make it difficult, if not impossible, for the government to continue the war.”
Now, I asked Mr. Van de Kamp, is that not a repetition of the overt acts charged, and could not Dell Publishers and the booksellers who handle the book he prosecuted as part of the conspiracy? He mulled this over for a while. “It’s a question,” he said finally. “I imagine Dell, technically, could he liable, conceivably they could be prosecuted.” “And the booksellers? “Yes, and the booksellers.”
Some disturbing glimpses into the vast potential scope of the conspiracy charge were afforded by John Wall, prosecutor of the Boston Five, during the arguments on the motions, a court hearing that preceded the trial.
The indictment charged that the defendants, together with “diverse other persons, some known and others unknown to the Grand Jury,” had conspired to violate the draft law. In the course of the arguments, defense counsel demanded to know the names of these diverse fellows. Mr. Wall explained for the government: The defense had already seen the faces of the co-conspirators in television newsreel films of various mass meetings, church services, press conferences. These films, which took a total of three hours to run, were in effect a preview of the government’s evidence, said Mr. Wall. What more could the defense want? They have seen the co-conspirators in those movies —the participants in the press conference, the rallies, the demonstrations—the government doesn’t know the names of all those people!
After court, I asked Mr. Wall about this. Did he mean that anybody who happened into the range of the camera at these large gatherings is automatically considered to be a co-conspirator? He answered that the law is clear: that anybody who gives encouragement, who aids and abets the conspiracy, can he so considered. So, I asked, the man who claps and cheers like mad after Dr. Spock has spoken is a co-conspirator, but the man who sits glum, whose face betrays disapproval of Dr. Spock’s remarks, is not? That is substantially correct, answered Mr. Wall.
The same sort of question came up again in these hearings in a slightly different form. This time, the defense lawyers wanted to know the names of the “diverse Selective Service registrants” who, according to the indictment, had been counseled, aided, and abetted by the defendants. Mr. Wall had a ready answer here, too. He referred the defense to the U.S. Census Bureau—because of the enormous amount of publicity given by the media to the statements and activities of Dr. Spock and others, he said, it could be safely inferred that every eligible draftee, every man between the ages of eighteen and thirty-six, had been counseled by the defendants to refuse the draft. John P. Mackenzie of the Washington Post followed up on this during the court recess, pretending grave concern for his own safety. He asked Wall: If the media are responsible for spreading the Spock message to the whole draftage male population, is not a reporter who files a story about a demonstration, a television crew that films it, a news photographer who snaps it, part of the conspiracy? Mr. Wall, now rattled, avoided a direct answer. There is “no intention,’ he said, of indicting the media men.
Now the contours of a conspiracy to counsel, aid, and abet draft resistance begin to come clear. One can visualize a vast Brueghelesque canvas peopled with those who have in varying degrees aided and abetted the conspiracy. At the center are those who some years ago began to lift the corner of the rug and expose the nature of the war: I. F. Stone pounding out his weekly newsletter, Robert St beer distributing his pamphlet How We Got Involved in Vietnam, professors and clergymen conducting teach-ins, The American Friends Service Committee, the Women’s Strike for Peace. Surrounding them are all who have furnished eyewitness information about the American conduct of the war: Mary McCarthy, with her account of corruption and cruelty in Saigon: Harrison Salisbury, whose revelations that the Administration was lying when it denied having bombed Hanoi were the first to be widely published in the United States; the editors of Rain parts, who published color photographs of napalmed babies; the news photographer who snapped the Saigon police chief in the act of murdering a prisoner of war; the TV crews who bring us nightly horror sequences of American planes strafing fleeing civilians; reporters who file accounts of acts of brutality committed by battlehardened Marines. Nearby the Fulbright Committee is in session. While Walter Lippmann cheers him on, Senator Wayne Morse is on his feet blasting the Tonkin Bay resolution as a deliberate fraud on the Congress and the people. Eugene McCarthy in his courtly fashion is addressing his Children’s Crusade. Somewhere up in the righthand corner New York Times editorial writers are at their typewriters questioning the wisdom, morality, and legality of the U.S. involvement in Vietnam.
For surely it is the cumulative effect of these disclosures, and the unprecedented opposition to the war in high places, that first created and then nurtured the will to resist the draft.
Twelve Tractable Men
The concept of trial by jury is such a familiar article of our mental furniture that, like the kitchen stove or refrigerator, it is simply taken for granted. We have ceased to inquire into its origins, whether it works as it should, to what new and creative uses it could be put. We know from history books that it is an ancient common-law right derived from Anglo-Saxon law, we know from friends who have served on juries roughly how it works in practice, and we have seen juries in action in many a Perry Mason show.
Yet a number of fuzzy and erroneous ideas have grown up around the jury trial. For example, it is widely believed that the role of the jury during the presentation of evidence is a purely passive one, that jurors must sit attentively but silently throughout the testimony. Not true. Theoretically, a juror may speak up at any point during the trial, may demand explanations: “But I didn’t understand what the witness was saying, I should like to ask him a few questions.” Of course he seldom does because he is rarely told he has this right. Moreover, the juror, having watched Perry Mason in action, is not likely to depart so radically and abruptly from tradition at the risk of looking like a fool, even though he may sense that the other jurors are as confused as he.
Likewise erroneous is the assumption that jurors are forbidden by law to disclose how they arrived at their verdict. Once discharged, a juror may discuss the deliberations of the panel as freely as he wishes. Not infrequently grave miscarriages of justice have been averted by such post-trial disclosures.
And is the function of the jury limited to weighing the evidence and deciding the facts in issue—did or didn’t he do it? The answer is not so easy, although the judge routinely tells the jury that this is so, not once or twice but hypnotically throughout the trial: “You are the sole judges of the facts. I shall instruct you as to the law.”If one of the lawyers manages to sneak in a bit of law here and there, the judge is quick to admonish the jury to pay no attention. “I will tell you What the law is.”
With juries so conditioned, conviction of the civil disobedient is virtually a foregone conclusion. The facts are not generally in dispute; he has readily admitted to them. He does not deny that he burned his draft card, or refused induction, or committed trespass during a demonstration—or, in the case of the Boston Five, signed antiwar manifestos, attended press conferences, handed over draft cards to the justice Department. The jury, having listened to the uncontradicted evidence of the alleged c rime, now hears the judge instruct them that the law says thus-and-so, from which they can only infer that a crime has indeed been committed. Congress has expressly forbidden the burning of draft cards, refusal of induction is a felony, there is a local ordinance against trespass. If two or more come to the conclusion that the war is illegal and the draft is wrong and act on that conclusion, that is a c riminal conspiracy.
Everything note falls neatly into place like a simple jigsaw puzzle: (a) he did it, (b) it is against the law, (c) if laws can be broken with impunity, anarchy will result. The jurors’ duty is now clear: no matter where their individual sympathies may lie, how much they may agree with the defendant’s views, or how strongly they may feel that the law is unjust and should be repealed, they have no choice as conscientious, law-abiding citizens but to vote a guilty verdict. Is that all there is to it, they must wonder, as, exhausted, enervated, they are at last thanked by the judge for being so attentive, and are dismissed, dropped back into their accustomed lives.
Perhaps that is not all there is to it. After the Boston trial, Joseph Sax, a young law professor at the University of Michigan, wrote an article in the Yale Review in which he makes a brilliantly reasoned argument challenging this concept of the jury function.
He develops the thesis that a jury has the right, and in some cases the duty, to ignore the judge’s charge, to find according to its conscience, and by its verdict to nullify unjust laws, to repudiate unjust governmental policy. “At this prospect the editorial writers have already recoiled in horror,” says Sax. “The way of civil disobedience is the way of anarchy, they solemnly intone, and millions nod their agreement. The virtues of unbending obedience to the law have not always seemed quite so obvious to Americans.”He cites the Fugitive Slave Laws of 1850, and the stubborn refusal of citizens in New England and the Middle West to enforce them. Even when indictments were brought against individuals who had clearly broken the law by rescuing fugitive slaves, prosecutions were often unsuccessful: community feeling against the laws and in favor of the defendants ran so high that juries refused to convict.
Sax draws on both English and American legal history to illustrate his point. In eighteenth-century England, Fox’s Libel Law was enacted, giving the jury the right to take the law into its own hands in cases of what today would be called civil disobedience—“to provide a check against the influence of bad judges in bad times,” as a member of the House of Commons put it in the debate on the bill in Parliament. Sax has plucked some nuggets from this debate which could have been made to order for the issues in the Boston trial.
The principle at stake was whether the jury could be told it had a right to refuse to enforce the law of seditious libel. This right was advocated by one MP because seditious libel cases involved “censures upon public men and the acts of government,” creating a special danger of “political craft and oppression perverting justice.” Lords Camden and Stanhope argued for “the right of the jury to take both law and the facts in their own hands” so that “juries might go according to their consciences in the law. . . . Some juries,” they said, “were found resolute enough to disregard the instruction, and find a verdict for the defendant, others were overawed by the presence and perhaps the menaces of a magistrate robed, learned and dignified, and found a verdict against their consciences.”
In America, Sax says, the Founding Fathers came out for the right of jury nullification of repressive laws.
For example, in 1771 John Adams said of the juror that “it is not only his right, hut, his duty to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court.” And Alexander Hamilton said in 1804 that the jury in a criminal case is duty bound to acquit, despite the instructions of the judge, “if exercising their judgment with discretion and honesty they have a clear conviction that the charge of the court is wrong.”
Sax concludes with an appeal that might well be heeded by those called to serve on future juries in cases involving civil disobedience:
It is time for us to come to terms with our own contemporary version of the seditious libel problem, and recognize, as our forebears did, that it will sometimes be necessary to protest an unjust law by violating it and putting the question of justification to one’s fellow citizens. . . .
Those who think resisters are tearing at the fabric of the society might wish to consider the possibility that a society is best able to survive if it permits a means for taking an issue back to the public over the heads of public officialdom: when it recognizes that a government may hate so implicated itself in a wretched policy that it needs to be extricated by popular repudiation in a forum more immediately available—and less politically compromised—than a ballot box.
This is strong, persuasive stuff. Yet is it not also somewhat visionary? Could Professor Sax’s ideas be made to work in a real case before a real live jury? On the face of it, it would seem the first requirement would be a jury that included at least some representation of those most likely to be receptive to a radically new approac h to the administration of justice—intellectuals, blacks, liberals, the wretched of the earth. Our Boston jury seemed, from what little we knew of them during the trial, a most unlikely bunch to respond to such unorthodox views. Only later, after I had discussed the trial with some of them, did I feel that the Sax approach would not have been wasted and might indeed have made a difference to the outcome.
That jury was screened in advance by the government. Mr. Wall told me that the Attorney General’s office had ordered an FBI check of all prospective jurors which would disclose not only any actual criminal record, but also, to the alert local G-man, any suspect behavior requiring FBI surveillance. So presumably, none of those who finally were impaneled had ever fallen afoul of the law, or engaged in any activity (such as peace demonstrat ions) that might have attrac ted the attention of the FBI.
Defense counsel, of course, had no such access tea the private lives and thoughts of the jurors. What slim information they did have, gleaned from the city directory, on educational background and occupation, was not encouraging: High school only, five. Some college, six. College degree, one. There were two self-employed, six white-collar, three blue-collar, one professional. Meat cutter, printer, hardware clerk, loan supervisor, technician, engineer, customer-service representative. “And I wanted mothers, beards, and eggheads!" groaned Coffin’s lawyer, James St. Clair, when he saw the list.
jury-watching, jury-analyzing, jury-predicting was an ongoing preoccupation of press and spectators. “Juror Number 6 kept his eyes shut during Dr. Spock’s testimony.”“Have you noticed how Juror Number 1 keeps staring at the defendants?”
“How do they see Wall? As Boy Scout or Torquemada?” “Or as Mr. Clean, wrapped in the American flag?" “I swear a couple of them have been dead for two clays, somebody ought to do a mirror test to see if they’re still breathing.”“Might as well read the entrails of a chicken as try to guess what they’re actually thinking, if anything.”Those twelve impassive faces tantalized, irritated, intrigued us throughout the four long weeks.
Everybody did a certain amount of informal polling of Boston types—waitresses, hotel clerks, barstool acquaintances—about what they thought of the Spock trial, in an effort to take the measure of the New England mind. The results were far from propitious. The range of views was narrow indeed, from “Dr. Spock may he a great doctor, but he’s broken the law and he should take the consequences,”to “They should all be hanged as traitors.” The latter comment was made by a cabdriver to a knowledgeable local judge and myself. “There’s your reason for the government s choice of Boston as the ideal c ity in which to try this case!" remarked the judge. “In Washington they ran the risk of blacks on the jury, in New York they’d have had Jews. They can be sure of this Boston jury.”
Long before the verdict was returned, the proSpock courtroom crowd had pretty much sized up the jury as hawks and bigots who would surely he prejudiced against the likes of the defendants and all they stood for.
When one reporter, Anson Smith, and I managed to interview three of the jurors at some length shortly after the sentencing, their responses came as the greatest surprise. All three were strongly opposed to the Vietnam War, all expressed the highest regard for the defendants as individuals and for what they were trying to accomplish—and all said they felt, alter hearing the judge’s charge, that they had no alternative but to find the four defendants guilty.
Why then did they acquit Raskin—what had he not done that the others had done? After all, Raskin was the author of “A Gall to Resist Illegitimate Authority”; he had been at the October 2 press conference, had not only participated in the Department of Justice rally and delegation, but had turned in his own 4-F draft card. In what way was he less a conspirator than, say, Ferber, who had never so much as exchanged two words with any of the defendants except Coffin? This remained something of a mystery . After talking with the jurors we were left with the impression that Raskin’s acquittal stemmed not from any special merit that would distinguish his case from the others, hut rather from a tacit desire of the jury to assert its independence, to vote, in some token way, its conscience. Could this spark he fanned into a flame, along the lines suggested by Professor Sax, the outlook of the political defendant might be profoundly altered.
“Guilty as Charged by the Judge”
At first, none of the jurors was willing to discuss the case with anyone. One or two made tantalizing remarks over the phone to Anson Smith as he sought appointments: “There was real solidarity between the men on the jury, we were proud of one another. . . “It was a hard case, our duty to deal with a brilliant bunch of fellows. . . .” “We had a hell of a problem to stay awake in the jury box on account of the air conditioning breaking down. . .
In time, three agreed to see us. (To what extent these three were representative of the jury as a whole, we have no way of knowing. Lawyers have suggested to me that the very fact that they were willing to discuss their verdict sets them apart as more open-minded and flexible than the others.) We were after more than just an account of the deliberations. In an unusual move, opposed by some of the defense counsel, Judge Ford had ordered the jury locked up for the duration of the trial. That month must have been a weird chapter in the lives of the twelve jurors and two alternates, suddenly seized from their familiar world of home, family, job to be plunked down in total isolation amongst complete strangers. What was the sequestered life like? How did they all get along together?—did irritations and hostility develop among the twelve of them? What were the marshals like as custodians, and what was the mysterious “entertainment" mentioned by the judge when he ordered them sequestered?
Our first interview was with the only professional man of the twelve, a thirty-seven-year-old architect of Portuguese descent. Mr. A lives an hour’s drive from Boston in a suburb of more or less stately homes. His house is large and pretty, the walls covered with his own collages and paintings. His wife was present during the interview listening attentively, and their five very well behaved children were occasionally seen flitting through the back rooms. Mrs. A told us later that she had raised them all by Dr. Spock’s book, although her husband had never read it. It struck me as a European ménage.
The trial had been, for Mr. A, an unrelieved nightmare. Until the day we came to see him, some three weeks after the verdict was returned, he had not discussed it with a soul, not even with his wife. The sequestration order came as a shocking surprise: “It was very unexpected—I had no idea when I went to report for jury duty that it would be this trial. I’m not familiar with legal terminology, and the notice said ‘petit jury,’so I thought it would all be over that morning, in a couple of hours—I was completely unprepared.
“I was working under great pressure at the time, and I’d left things at the office half-finished, expecting to come back in the afternoon. I called the office at lunchtime, to say I’d be there later. That was the last time I called the office.” Then started a strange peregrination: “Judge Ford said we could all go home and collect our belongings, but five minutes later he changed that, and said we couldn’t go home alone, we should have to be accompanied by marshals. There was a shortage of marshals and cars, so there were several jurors to a car—we drove half round the state to stop by the homes of the jurors. I left about five or five thirty and called my wife to say I’d be coming for my things about eight P.M. But I didn’t get there until eleven at night.”
The jury was quartered in the Parker House, a few blocks from the courthouse, in single-occupancy bedrooms, where they were guarded night and day. “We were permitted to call home once a day. The calls were monitored—a marshal was listening in taking notes. Our letters were censored. I had to write a business letter to my partner, about a three-page letter; the marshal read it, checked it, and then mailed it.” The jury got one daily newspaper, the morning Boston Globe, from which the marshals had clipped out all news about the trial. Television programs were also monitored, a marshal was always on hand to switch off the set if there should be a news flash. All telephones, radios, and television sets in the bedrooms were disconnected. “One night I wanted to hear the ball game on radio—they had to get the electrician to come and fix the radio, connect it, and by then the third inning was over!”
Mr. A hated being separated from his family, he missed them terribly. Worst of all was the regimentation, the lack of activity, the constant waiting around. “It was atrocious,” he said. “I normally lead a very active life—it was unbearable. I’m used to the pressure of the architect’s office, and I do a lot of painting. I like to paint for hours at a stretch, uninterrupted—but serving on the jury the time was all cut up, fifteen minutes here, twenty minutes there.
“The daily routine went like this: At about six forty-five, someone knocked on the door, we went to the common room and had juice. Then we waited twenty-five minutes for half of the jurors to go down in the elevator to breakfast. Then we’d wait for the other group to get down in the elevator. After breakfast we went back to our rooms; another twenty-five minutes’ wait, and we came down in the elevator again in two groups, and then walked over to the courthouse. At the courthouse, it was unbearable. Those continual breaks, bench conferences, and so on.”
For exercise, Mr. A would pace up and down the jury room during the court recess; like a man condemned to live in a Bastille cell he measured its exact dimensions, 35 by 14½ feet, and figured that you had to walk it 150 times to make a mile, which he did for the first several days. The weekends seemed to drag endlessly. Once or twice they went to the movies or to a ball game or just for a drive.
Anson Smith and I were beginning to express our sympathy at this horror-tale of enforced incarceration when Mr. A burst out with a remark that was truly startling in the circumstances: “I would kill myself if I ever ended up in jail in these conditions.”
Yet in a way Mr. A was glad to have been through the experience. He said he was particularly impressed “with the extent the Justice Department went to to preserve the rights of the defendants by keeping the jury away from all contacts with the outside.” A strong feeling of camaraderie developed among the jurors, they all got along extremely well, there were no conflicts. As for the marshals, Mr. A could not praise them enough: “They were fabulous: I was absolutely floored. I expected them to be crude and rough, but they were the most tactful people I ever met. One of them is writing an anthology of Chinese poetry—a very fine man, very diplomatic. They were with us till the time. The biggest surprise was the personalities of the marshals, their tactfulness.”
Discussing how the jury arrived at its verdict, Mr. A was curiously reticent on one or two points. He declined to tell us how many votes were taken, how the jury stood at various stages, and he seemed loath to say much about the reasoning that led to acquittal of Raskin. We asked at what stage the jury distinguished Raskin from the other defendants. “Speaking for mysell, I felt that way from the start of the deliberations. My own point of view was that Raskin, though a very outspoken critic of the war, did exercise judgment about draft evasion. To me, this was the key issue. He seemed anxious to change the subject, and we talked of other matters. Later, we returned to Raskin; why the not-guilty verdict? “The way Raskin himself was convincing was the point. Wall teas forceful, and I don’t like people who push other people around. Wall’s mannerisms bothered me a lot. Some of the jurors thought him a great hero, and some didn’t. I was just listening to what Raskin was saying.”
And what of the conspiracy? At this point in our interview we got a glimpse of the doubts and distress that assailed Mr. A in reaching a verdict, doubts that were, however, put to rest by the judge:
Q. What item or items of evidence did you find most compelling about the conspiracy?
A. [Here Mr. A was silent for a full minute, clearly very upset, searching for a way to explain. Finally, and painfully, he spoke.] I had great difficulty sleeping that night after the summing-up arguments. I sympathized very strongly with the defendants—I detest the Vietnam War. Also to some extent I think there is unfairness in the draft law. But it was put so clearly by the judge. It was a law violation—there’s no way—it’s a very fine point —the jury can’t say, “Was he justified in violating the law?” If the judge had said, “If you find they were justified, find them not guilty,” it would have been beautiful.
Q. How did the other jurors feel about the war?
A. I don’t know how the others felt—they take things as they come—perhaps they don’t think much about it.
Q. Were they hawkish or dovish?
A. I don’t know.
Q. Wasn’t Ferber’s link pretty tenuous?
A. I think that’s true. But that’s one of the things the judge’s charge helped to clarify.
Q. Could the conspiracy doctrine be a dangerous weapon? Did you think about this at all?
A. Yes, I did.
Q. Where does political action stop and conspiracy begin?
A. That’s why I couldn’t sleep the night before the verdict; I was concerned.
Q. What did you think of Dr. Spock?
A. He’s very honest and straightforward, has lofty and commendable ideals.
Q. And Coffin?
A. A dynamic person, he must be a great speaker.
Q. Then—how could they be part of a criminal conspiracy?
A. I can’t answer—I would have to go into a re-evaluation of all my own thoughts on the subject. It goes back to the judge’s charge.
Q. Do you think the other jurors were aware of this fine line between freedom of speech and criminal conspiracy?
A. I don’t know—I had a feeling they probably weren’t. Even before the judge’s charge, I felt the majority of the jury saw things in black-and-white terms—although one or two had the concept of this fine boundary. Several definitions—word definitions of legal terms—made it clear this was a conspiracy to aid and abet.
Q. Why did you exonerate them of the charge of “counseling”?
A. We couldn’t see any evidence they actually counseled—that they said to a kid, “Why don’t son turn in your card?”
Q. Yet you found them guilty of aiding and abetting draft refusal? And aiding and abetting nonpossession of cards?
A. They did aid and abet, indirectly. You can “aid” by addressing yourself to that issue.
Q. What did you think of the judge?
A. He was very fair-minded, sharp for his age, for an eighty-five-year-old man, although sometimes he couldn’t hear too well. He was very friendly and kind to the woman from the draft board; she was so nervous; he put her at her ease, made her relax.
Q. But she was a prosecution witness?
Q. What about when he interrupted Boudin’s closing argument and told Rabinowitz not to “demonstrate”? [Leonard Boudin and Victor Rabinowitz were counsel for Dr. Spock.]
A. Rabinowitz had a habit of making faces. [Mr. A mimics Rabinowitz, rolls his eyes ceilingward in a Heavens-to-Betsy fashion.]
If Mr. A emerged as at once sensitive and reserved, intelligent yet strangely naive, by contrast Mr. B, a printshop owner of Italian extraction, seemed self-assured, talkative, and worldly-wise. He also was beset by some of the doubts, and troubled by the moral dilemma, that poisoned life for Mr. A during the trial.
While he found the sequestered life trying, it did have compensations: “We had entertainment— always of the best—food always of the best, martinis before dinner, the government spared no expense to see that our life was as pleasant as possible. I gained twelve pounds during the trial. We went to the best restaurants and so forth—but it was abnormal. Everything we did was checked —even going to the men’s room, we were accompanied right into the room.” He enjoyed kidding around with the marshals: “All phone calls were censored, a three-way line: the juror, his loved one on the other end, and a deputy monitoring everything. Once I called my mother, and we were talking in Italian! The deputy was at a loss, he yelled Uncle, and called in an Italian-speaking deputy. I said, ‘I also spreche Deutsch!’ There was lots of tomfoolery, horseplay.” He added complacently, “But morale was at the highest. I gathered from the deputies that this jury was as good as they come—an excellent cross section of citizens, men of conviction, not easily swayed. Each was determined to render a fair verdict.”
The clue to how this fair verdict was reached by the “men of conviction” was supplied early in our interview. We asked if there had been much disagreement amongst the jurors during their deliberations. “A certain amount. But our duty was clear-cut. We were charged by the judge to make our decision on our findings. It was as obvious to us as to anyone else that they were guilty as charged by the judge.” “Did you say, Guilty as charged by the judge?” I repeated, startled. “Yes,” answered Mr. B.
On the defendants: “Coffin’s a hell of a nice fellow. Friendly, articulate. Here’s a man willing to fight for people’s rights—he went South with the Freedom Riders, was in the CIA—the type of man I admire.” “Ferber? I admire him too. A youngster, who didn’t appear to have the manly physique of an Atlas, but mentally he was a giant.” “Goodman has the courage of his convictions; he believes in giving kids guidance.” “Dr. Spock is outstanding. He could spend a life of ease in the Caribbean Sea—he doesn’t have to do what he is doing. His book is almost a Bible.” “Raskin —here s a man who has been exposed to the machinery of government. I worked in the State House, and saw things that turned my stomach. Raskin was exposed to enough to turn his stomach! He thought the war was outrageous. He’s a sincere individual.”
On the prosecutor: “A cocky young fellow, outspoken, dramatic, a Hollywood-type prosecutor. I wasn’t too favorably impressed by him.”
On crime and punishment: “I’m in agreement with what they’re trying to accomplish—my friends were amazed I found them guilty; but they did break the law.” “I don’t have to stress where my sympathy lay. Like Raskin, I think it’s a senseless war. But my personal views don’t count.” “I’m convinced the Vietnam War is no good. But we’ve got a Constitution to uphold. If we allow people to break the law, we’re akin to anarchy.” “I personally feel the government has a weak case. But if the defendants had been found not guilty—we’d have chaos! “Technically speaking, they were guilty according to the judge’s charge. If there had been a different charge, we could have voted differently—if he had said, ‘Let’s face it, they’re entitled to their opinions.’ ” “There’d have been adverse consequences if they’d been found not guilty, you’d have thousands of people doing the same thing. “Wall said, ‘We’ve got to nip this thing in the bud.’ What did he mean? To put a stop to it. There could be all sorts of reverberations—chaos.” “We based our verdict on ‘were they guilty?’ no matter how weak the case, and it was weak. The government didn’t have a strong case. Up to the judge’s charge, I would have found them not guilty.”
On the judge: “Here’s a strange thing: Wall’s closing argument. The judge charged us along the same lines as Wall did. When Wall gave his closing, the judge almost corroborated his charge—he was in general agreement with the prosecution, whic h is obvious to anyone who followed the trial. Judge Ford leaned toward Wall. But he tried to be fair. After all, he is employed by the federal government, they pay his wages—he couldn’t be for breaking the law.” (Canny Mr. B! You have something there.)
On the acquittal of Raskin: “Prior to the Andretta Room conference, in the films of the mass meeting outside the Justice Department, we could barely see Raskin’s head in the film. The only thing he did was to state his views on the Vietnam conflict—as a matter of fact, he’s written two books about it. He’s entitled to his views on the war.”
Mr. B told us in some detail about the chronology of the deliberations. The foreman played a relatively passive role, taking votes and chairing the discussion. First they took a secret ballot, each juror writing his verdict on a slip of paper. In this first vote four jurors (among them Mr. B) found all defendants but Raskin guilty, eight lound them all guilts. “We had some discussion alter that, because the judge did say that if there was a reasonable doubt we should find them not guilty.”Then one of the jurors—and it turned out to be our Mr. A—went to the blackboard and made a chart showing how each of the defendants was linked with the others. (Why did Mr. A not tell us this? What deep-seated feelings of personal distress over his role made him shy away from saying anything at all about the chart which was his idea, the votes, the sequence of the deliberations?) After some five and a half hours of discussion, the jury arrived at its general verdict. The foreman then polled the jurors as to the special findings.
Q. How did you arrive at the verdict?
A. Every one of the twelve was determined in his own mind they were guilty. we had stacks of evidence, draft cards, testimony, pictures—we deliberated seven ant! a half hours.
Q. How come you found Berber guilty of conspiracy when he didn’t know any of the others?
A. That’s a point well taken. It wasn’t totally a conspiracy. What Ferber did do was aid and abet.
Q. But the charge was conspiracy?
A. Yes, but conspiracy to aid and abet.
Q. Did you think that Ferber was party to this triminal agreement?
A. A conspiracy can be two people entering an agreement. Berber aided and abetted young men after they’d made their minds up.
Q. What persuaded you there was a criminal agreement among the four you found guilty?
A. Not criminal agreement—conspiracy.
Q. You must have thought there was evidence they were in agreement. What about the “Call to Resist,”was that a big thing?
A. No. Raskin wrote the original article, then it was rehashed by others—after it jelled he was quite ill, and his baby had some malady—the draft was not uppermost in his mind. About the conspiracy. somewhere along the line each defendant was connected. Ferber in Washington, Coffin in Washington, Spock in Washington—you can join these three on this point. And then again, how about convicting the mayor of New York? [Mayor Lindsay had testified, as a witness for the defense, that he had called in Dr. Spock to discuss plans for the Whitehall Street induction-center demonstration, seeking to ensure an orderly assembly.] Here’s a guy who prearranged things—he’s aiding and abetting too. The more I think of it, the more I think how ridiculous! All those police at Whitehall Street, Goodman and Spock obstructing traffic! A battery of newsmen, and a deputy tapped Spock on the shoulder and arrested him. A ludicrous thing—Goodman, in the background, ran up and said, “How about arresting me?" The whole thing’s rife with technicalities. But, why I don’t want to talk out of turn, Raskin only talked. I’ve spent some sleepless nights over this. Look at what happened to Raskin! He said, “I hate the Vietnam War,” and he spends weeks and weeks defending himself in court.
What of the reaction of friends and family to the verdict? “I’ve got three teen-age sons, two are draft age—the draft is breathing down their necks. When ! heard we were going to be locked up, late in the afternoon of the first day of the trial, a deputy accompanied me to my home to get my personal effects. My three boys were home—they were somewhat flabbergasted. They’d discussed these things with me before, we’re generally in agreement. My second boy said, ‘Give ‘em hell!’ And he was not referring to Spock, he was referring to the government.” But when the trial was over, and Mr. B explained it all to the boys, they felt that Dad had done the right thing: “They agreed with me, that these men did break the law. But the law should be changed. The draft law is discriminatory; it’s obvious it should be changed.” Not all the family was so easily persuaded of the justice of the verdict: “My sister said she thought it was a shame to convict them, but her husband shut her up pretty quick.” (We asked him what he thought of the government challenging the two women called to the jury box: “Don’t misunderstand me, I love women. But we had a job to do, and who wants a woman, who thinks with her feelings about these things?”)
Mr. B himself betrayed some qualms about his vote: “The Saturday after the verdict I woke with a splitting headache, wondering if I did the right thing. The conspiracy law should be changed— technically you could call the mayor of New York and thousands of his policemen conspirators. I can’t fathom it out, it’s beyond me.”
And now, outstanding Dr. Spock, the hell-of-anice-fellow Mr. Coffin, courageous Goodman, and mental giant Ferber are all up for a two-year stretch in the penitentiary. What did Mr. B think of the sentences meted out by Judge Ford? “I was surprised—I’d expected a slap on the wrist, probation, no sentence. I thought the judge teas very rough on them. There wasn’t a man there who wasn’t trying to better his country. It they are incarcerated, the government would be making a great mistake. I saw Raskin after the verdict, and I said, ‘I hope to God Uncle Sam doesn’t see fit to create martyrs out of these four. . . .’ ” “Then why did you vote them guilty, knowing this might result in their being imprisoned?” “I knew they were guilty when we were charged by the judge. I did not know prior to that time—I was in full agreement with the defendants until we were charged by the judge. That was the kiss of death!”
So we had come full circle.
Our third and last interview was with a semiretired management sales consultant in his sixties who lives in a modest house in the suburbs. In all ways an homme moyen, Mr. C came closest to my idea of the Average Juror. We have seen him reflected as part of a percentage point in the majority columns of innumerable Gallup polls. He is law-abiding, kindly disposed toward his fellowman, and would be the first to admit he is not given to undue mental exertion. His twenty-fouryear-old son will be coming up shortly for reclassification: “My boy’s not for the Vietnam War anymore than anyone else is. He’ll do what he can legally not to go. But he told me he thought our verdict was right.”
Like Mr. B, he was impressed by the unaccustomed lavish living: “We went to Trader Vic’s, Pier 4, Jimmy’s Harbor Side. We could have only two drinks with our dinner—I think the limitation was set not because of the money side, but because they didn’t want it to seem the jurors were going on a toot, if somebody had a few too many. On weekends we went up the coast in air-conditioned Mercedes-Benz buses, stopped at the Old Mill in Westminster.” His son is a rugby football enthusiast, and it happened that his team was scheduled to play on Memorial Day weekend, in the middle of the trial. “I tried to talk up rugby to the other fellows on the jury, but couldn’t get them interested. So two marshals volunteered to take me out —I think they enjoyed it. Some of my friends out there saw me, with two men guarding me, one on each side! My wife came down from the stands, and we greeted one another, but the marshals stood right between us as we talked.”
Mr. C had a good word to say for everyone: “The marshals were a swell bunch of fellows, very pleasant, very nice. . . . Judge Ford is terrific, very fair, has a good sense of humor. . . . Wall was a real keen boy, had the whole thing on the tip of his tongue every minute, he knew just where all the exhibits were, where to lay hands on them, and he spoke right up so you could hear him. . . . The defense lawyers were outstanding, they all did a good job. . . . Coffin is sincere, he has no ulterior motives, I think he firmly believes this moral law is above the government law. . . . Dr. Spock’s a very fine man. . . . Ferber is a bright voting boy, very presentable. He might be better off doing some athletics instead of all that studying? He’s a Phi Beta Kappa, must be smart. I didn’t go for some of his buddies very much, that group we’d see lined up in the corridor every morning. But I’m very strong for the younger generation, I think they’re terrific. . . . The jurors—it’s interesting to me, these fellows who never saw each other before, of varying conditions and environments—we got on pretty well together, there were no flare-ups, everybody was friendly, sincere about their duty and responsibility. Nobody jumped on anyone else for disagreeing.”
Of the acquittal of Raskin, he said: “There’s no doubt in my mind he knew what was going on, but the general feeling was that Raskin is one of those real brains, a little bit on cloud 9—he said he was there but he didn’t listen, he was thinking of something else. There’s no doubt he’s loaded with brains; I know people like that, they’ll participate in a conversation from time to time, but they’re way off.”
Mr. C’s explanation of how he arrived at the guilty verdict was totally bewildering:
Q. How did you reach a decision?
A. The biggest discussion was not “guilty or not guilty,” but what the judge meant by conspiracy. You can interpret that in a lot of ways. The judge did outline it very clearly, but it’s not what an ordinary layman would call conspiracy. You think of people sitting down together and planning it out step by step, but that’s not the way the judge said it.
Q. How did you construe “conspiracy”?
A. Conspiracy involved—not necessarily all five together, but along with others known and unknown, to burn draft cards and interfere with induction centers.
Q. Did you decide the defendants conspired to burn draft cards?
A. It was too obvious! No question about that.
Q. But they were not charged with burning draft cards?
A. No, that’s right, but they were aiding and abetting the kids to burn draft cards.
Q. But that’s not in the indictment—it was conspiring to aid and abet refusal to serve, nonpossession of cards, hindering the administration of the act.
A. Well, they weren’t all necessarily cards. There were a lot of letters and so on burned too.
Q. But where did “burning” fit in your scheme of deliberations?
A. Not burning so much an issue as the fact they turned them in. But the burning made more impression on you.
Q. Spock and Coffin both testified they were opposed to burning cards?
A. We didn’t feel they were out there saying, “You go in and burn it!” But Coffin is a persuasive speaker.
Discussing the judge’s charge, Mr. C unwittingly spoke directly to the point made by Professor Sax: “Of course you wonder if you made the right decision: but the way the judge charged us, there was no choice. People I’ve talked with since the verdic t are sympathetic to the actions of Spock and Coffin—they seem to think the jury should have been there to decide if the law is right or wrong, but we weren’t there to decide that. You can’t have juries deciding whether Jaws are right—there are certain laws on the books.”
Again, we wanted to know how it felt to have sent these “fine, sincere, bright, presentable people" to prison:
Q. What did you think of the sentence?
A. I thought he’d give the maximum, myself. But I thought it pretty smart to do what he did. I doubt they’ll ever spend time in jail—there’s the appeal, which will last way beyond the election. But I think 1 lie appeal court will uphold Ford.
Q. But—if the appeal court upholds Ford, they’ll go to jail?
A. I don’t wish anyone to go to jail. I couldn’t wish anyone of the caliber of individuals they are to spend two years in jail. But I think the sentence was right, and the verdict teas right.
We could not shake him from this queer inconsistency, although we went back over it with him a few times.
Summing up his reaction to the experience, Mr. C had this to say: “I think if everyone could serve on a jury it would be very helpful to the whole country. I’ve said this to a lot of people. With all the goings-on in this country, to me this jury trial renews my faith in the United States system—to see the conscientious feeling of those men, taken at random—their sincere feeling and hope they’ve done the right thing.”
A vastly consoling thought: the American way. No danger here of the political dissident being dragged from his bed at gunpoint in the middle of the night and hustled off to some secret destination, there to be held without trial. No, in America he is properly indicted, admitted to bail, allowed counsel of his choice, and eventually found guilty by a jury of sincere and conscientious people like Messrs. A, B, and C.
Following the sentencing, a cry went up against the judge from most of the newspaper and magazine correspondents who had covered the trial. In his “wrap-up” story in the Washington Post, joint P. MacKenzie wrote:
The trial of Dr. Spock was a disaster for all concerned . . . a deep embarrassment for the American system of justice. . . . Sixteen volumes of transcript tell part of the story, but they can never tell it all. They do not convey the manner in which 85-year-old Judge Francis J. W. Ford showed his disbelief in the defense case and his tolerance for the Government’s. . . . The Judge’s display of bias may not be enough in itself to overturn the convictions. But it demeaned the Federal bench and deprived the nation of a trial that was fundamentally fair.
No impartial observer of that trial would dispute MacKenzie’s characterization of the judge’s behavior. But is it not self-deluding to speak in terms of a “fair trial” in a politically motivated, politically timed, and politically organized prosecution? When applied to such a case, does not the cherished concept of due process of law, the foundation of our system of jurisprudence, become merely an elaborate sham to mask what is in reality a convenient device to silence opponents of governmental policies? If this is so, does not the demand for fair trial and due process in political cases simply help perpetuate the myth—should not the demand rather be, in the public interest, an end to political trials?
The fact must be faced that political prosecutions invariably produce unjust, often tragic, results. Found guilty after a costly, often ruinous, trial, branded a criminal if not a traitor, the defendant must seek his comfort in the thought that perhaps years later, after the hysteria of the moment has abated, an appellate court may reverse his conviction. Nor is there much solace for the rare defendant, like Marcus Raskin, who is acquitted, for, having gone through the ordeal and the expense of the court proceedings, his life and career disrupted, he is in neither the eyes of the public nor his own “vindicated.” He has merely been lucky enough to slip through the net.
So it is the fact of political prosecution rather than the fairness of the court procedures that is crucial.
The case against the Boston Five was expressed predictably, in terms of the favorite electioneering slogan of all three 1968 presidential candidates. Judge Ford’s remarks as he pronounced sentence were already ringing in our ears, for we had heard them daily, for months, in the campaign speeches of Nixon, Humphrey, and Wallace: “Where law and order stops, obviously anarchy begins.”
Writing in the Boston Globe, Ferber gives his views on law and order:
Let us be clear that the generation of Resistance has plenty of respect for law and order, certainly much more respect than President Johnson has, whose war in Vietnam is illegal in a dozen ways, certainly much more than many policemen have, whose bias against black people and young people is notorious. There is nothing lawful and orderly about the way America arranges its political, economic, and diplomatic affairs, only a veneer of efficiency and stability. If the law must be broken, it will be broken in the name of justice and morality, without which law and order are mere tyranny. It will not be broken for the personal gain, prejudice, fear or megalomania that now dominate America’s lawless society.
At the Spock trial, the government’s message came over loud and clear: You are not as free as you think you are. Yes, of course, you may sign a peace petition, you may have your name on a newspaper advertisement supporting draft resisters; as John Wall said, the government is not suggesting it is going to indict somebody for signing a piece of paper! You may go to that mass meeting, and applaud if you feel like it—do you really imagine that in this, the most open society in the world, anybody is going to be indicted for applauding? However, if you do all these things, you will be “kept under surveillance by the FBI as a general security precaution” (as Van de Kamp told me the Boston Five were), and should it happen to suit the government’s purpose, you will then be prosecuted, and the petition, the advertisement, the mass meeting, and your applause will be solemnly paraded before the jury as evidence against you.
While calling on prosecutors not to prosecute may seem a little like urging lions to stop eating Christians, it is likely that if enough people were moved to concern themselves with political trials everywhere, in their own communities or on a national level—and by learning about these trials were stung into action to demand a stop to them— prosecutors, who are after all only cogs in the political system, would be forced to call a that.
In a subsequent issue will appear “The Oakland Seven” by Elinor Langer, the story of a trial that brought quite different results, and was, says the author, “one of the most remarkable political trials ever held in America.”
Jessica Mitford of the English Mitfords was last represented in these pages with a report on the aftereffects of her best-selling exposé, The American Way of Death. This article has been adapted from her new book, The Trial of Dr. Spock, to be published in September by Alfred A. Knopf, Inc.