The Pentagon Papers Trial
“Inevitably political, the Pentagon Papers case is a decisive test of the federal government's capacity to control the disclosure of information stamped 'secret,' of an individual's right to defy the security classification system, and at least peripherally, of the press's ability to rely on 'leaks' in government circles.”
“When a juror says he’s going to be fair, he doesn’t really know if he is,” observes Marie Goldstein with a long sigh. She is something of a newly self-discovered expert on the subject. After sitting for several days as a tentative juror in the Pentagon Papers trial in Los Angeles, she became the first person excused for cause by U.S. District Court Judge W. Matt Byrne, Jr. What did her in was the frank admission that if she were not a juror in the case, she would have “definite sympathy” for the defendants, Daniel Ellsberg and Anthony Russo.
Mrs. Goldstein was disappointed to be dismissed so quickly. “I think I ought to be able to be a good juror,” she says with a trace of good-citizen indignation. So willing, indeed enthusiastic, was she to serve that she had decided to give up a scheduled vacation trip to Japan if she were chosen for the final panel. She would have preferred to be the object of a peremptory challenge by the government prosecutors (peremptories require no statement of reasons and are merely an indication of each side’s preferences and prejudices) rather than a declaration by the judge, in effect, that she was unfit to serve. Reflecting on the experience, she acknowledged that “I did it to myself by what I said. … But then my husband [a doctor in Pomona, thirty-three miles east of Los Angeles] said maybe this was just my subconscious way of telling them I could not be a good juror.”
There was, in fact, no chance that Mrs. Goldstein might have had to forgo her trip to Japan for jury duty. Had she not been the first potential juror eliminated for cause, she would surely have been the government’s first peremptory choice. What she “did to herself” was to reveal that her daughter demonstrated at the 1968 Democratic National Convention in Chicago, that she herself had a college degree in economics, that she supports George McGovern for President, and that she has a draft-age son (with Selective Service lottery number 10, although that fact never surfaced). For a murder, rape, burglary or personal injury case, she would be fine; but not for this case.
Although Judge Byrne and various lawyers on both sides would insist from time to time, when it was useful for the point they were trying to make, that the case must be treated just like any other one in every respect, jury selection for the Ellsberg-Russo trial posed some very special problems. Inevitably political, the Pentagon Papers case is a decisive test of the federal government's capacity to control the disclosure of information stamped “secret,” of an individual’s right to defy the security classification system, and at least peripherally, of the press’s ability to rely on “leaks” in government circles.
Neither the prosecution nor the defense was about to let onto the jury anyone who seemed to share ideological bonds with the other side. The problems were complicated, doubtless, by the fact that the case looked to the public like a controversial, notorious, even exciting one. To many prospective jurors it would seem the opportunity for a brush with fame and publicity. This was the kind of jury on which all but the most timid or nervous among those who were called seemed eager to serve.
The defense attorneys, so numerous that they had to take care not to stumble over each other while playing musical chairs at the defense table, insisted that the only way to select a fair jury would be to allow defense and prosecuting attorneys to participate personally in the voir dire, the process by which each venireman is questioned to elicit information about his background and attitudes. They repeatedly pressed Judge Byrne to permit them to interrogate the prospective jurors.
Standard practice in the federal courts is for the judge to conduct the voir dire himself. But, as Ellsberg’s chief counsel, Leonard B. Boudin, often reminded Byrne, Judge R. Dixon Herman had only recently departed from that procedure in the Harrisburg conspiracy case. As a result, five weeks were spent in picking the Harrisburg jury.
Herman’s indulgence was exactly what Byrne, a brand-new judge with obvious concern about judicial efficiency, intended not to emulate. With a characteristic glance at the clock, he estimated before the start of questioning on July 10, no doubt wishfully, that a jury could be selected in perhaps three days.
That estimate dropped the jaws of even the three prosecutors, led by David R. Nissen. A slight, dapper man, he achieved his reputation for toughness while handling racketeering cases for Byrne when the judge was United States Attorney in Los Angeles. As the federal courts have increasingly become a forum for political issues over the past several years, and have been used for criminal cases testing the limits and styles of dissent and protest against national policy, jury selection has developed into a complex and sophisticated process.
Prosecution and defense attorneys generally find out in advance far more about the individuals summoned for jury duty in such cases than they tell about themselves from the jury box during voir dire. For example, federal prosecutors have the increasingly computerized resources of the FBI at their command. In California it is a simple matter for the defense to learn each juror’s party registration, when he voted, and whether he ever signed referendum petitions on such issues as the death penalty, pollution control, and open housing.
Sometimes both sides case the prospective jurors’ neighborhoods and find out how and with whom they spend their spare time. During jury selection in the Pentagon Papers case, Ellsberg’s and Russo’s attorneys discovered that one man, eliminated from the panel, was “probably gay.” Another was peremptorily excused by the defense, despite his avid complaint during voir dire that while in the service he saw many documents classified which should not have been, because a background investigation portrayed him as a “Goldwater type.”
As each new group of veniremen was called to the jury box, staff from each side—FBI agents and members of the defense “law commune”—nearly collided with each other as they scurried in and out of the courtroom to assemble information for the lawyers. Aware that the jury which acquitted Angela Davis in a California state court had been selected with the help of a panel of black psychologists sitting in the courtroom, the Ellsberg-Russo defense brought in psychiatrists to watch from the audience and sort out the people they considered authoritarian personalities from those who seemed to be softhearted souls. One lawyer for Russo was offered this guideline by a San Francisco area psychological consultant: “If all else fails, watch the mouth—if it is closed and tight, reject; if it is irregular and open, take the juror.”
The defense, frustrated in its attempt to quiz the jurors directly, was also relying on information that might be adduced by a list of 268 questions it wanted the judge to ask each person. The questions were grouped into categories and intended to probe such areas as the “juror’s attitudes toward acts of conscience”: “Is it ever justifiable, in your opinion, for an individual to refuse to go along with the actions of his government as a matter of conscience, while that government is engaged in military conflict?” “Do you believe it is ever justifiable for an American citizen to break the law?” “Do you believe the Boston Tea Party was a justifiable act?” “Do you believe it was correct for many Americans to help free black slaves prior to the Civil War even though it was against the law at that time?” “Do you believe that Jesus Christ was justified in throwing the money changers out of the temple by force?”
Another category sought to probe “attitudes toward authority”: “Do you believe that overpermissiveness on the part of parents and schools contributes to the breakdown of order in the country?” “Do you believe that the revival of capital punishment in California would contribute toward reducing the crime rate in the state?” “Do you think prison administrators should take into consideration the views of the inmate population in determining prison policy?”
Others dealt with the media: “Do you believe that a free and independent press is essential to the proper functioning of a democracy?” “Do you believe the government of the United States should have the right to censor the news?”
Byrne was irritated by the defense’s forty-four pages of proposed questions, and he refused to ask any except the basic ones about the prospective juror’s background, job, and military experience, and whether he had ever been a juror or the victim of a crime. Since both sides wanted it, he also queried each prospective juror about his or her views on the war.
The defense often came up with additional questions that it wanted posed to particular jurors. Typically, the judge would reject the request, but on his own initiative later would begin asking the same questions of others summoned to the jury box.
From the start, the prosecution weighed in with its own nonnegotiable demands. Insisting that the press had cooperated with Ellsberg and Russo to distort the meaning and substance of the case, the Justice Department demanded that Byrne correct any “false impressions” among the jurors that it had something to do with, among other things, “newspaper publication of the stolen documents in the summer of 1971, freedom of the press, and the public's right to know … the morality, course and conduct of the U.S. military in Vietnam … Congress’ right to, and demand for, the documents and the Executive's refusal to furnish them ... defendants’ motives, purposes and goals.” The jury must be alerted in advance, it was argued, that the Ellsberg-Russo trial had nothing to do with those subjects, with the Supreme Court's decision in June, 1971, to permit newspaper publication of the Papers, or indeed with the Pentagon’s own eventual declassification and publication of most of the historical study’s contents.
Nissen’s team also urged that every prospective juror be quizzed on: whether he believes “that the use of military force to oppose Communist conquest is wrong,” on whether any friends or relatives belong to the American Civil Liberties Union, and on what his personal reading habits are. The prosecution said that it was especially on the lookout for readers of the New York Times, The Washington Post, The Atlantic, Saturday Review, Look, Harper’s, Esquire, and Ramparts, because all had published material dealing with the Papers.
In addition, the government asked that the defendants and their lawyers be prospectively banned from mentioning in open court, without specific permission in advance, such matters as “any so-called public right to know … any opinion, assessment or evaluation of United States military involvement in the war in Vietnam, or of the responsibility or guilt of any individuals, groups or nations in connection with such involvement … leaked disclosures of other government documents by other persons … allegations of impropriety in the investigation, including issuance of search warrants, subpoenas, questioning of defendants' friends or relatives before the grand jury.”
Byrne refused to place restrictions on what the defense could discuss in court, but he agreed to caution each potential juror that the trial had nothing to do with the newspapers or with the merits of American policy in Vietnam. “This is not politics, this is a lawsuit,” he would warn repeatedly.
Supported only halfheartedly by Ellsberg’s side of the defense (Ellsberg himself did not even bother coming to court while it was being argued), Russo’s lawyers mounted a full-scale attack on the jury selection system in the U.S. District Court for the Central District of California. They complained that students, minorities, and those with little education and low income were systematically excluded from jury duty.
The defense’s data were weak, its statistical analysis sloppy; its definition of “youth” mysteriously drew the line at twenty-nine. Spared the necessity and embarrassment of repudiating a system established by his chief judge, Byrne ruled against the jury selection challenge. He also refused a novel defense suggestion that the jurors be permitted to pose their own questions to witnesses, something that Russo’s chief counsel, Leonard I. Weinglass, said was necessary to give them a full sense of “participation” in the trial.
One thing that became clear early in the process was that most potential jurors, despite the judge’s protestations to the contrary, did associate the charges against Ellsberg and Russo with newspaper publication of the Pentagon Papers. If they had ever heard of Ellsberg at all, it was during June, 1971, or since that time. The careful wording of the indictment notwithstanding, they could perhaps be excused for that impression. Although the prosecutors labored to structure the affair as a simple, straightforward criminal case unrelated to freedom of the press or embarrassment of the federal bureaucracy, the fact was that the original indictment against Ellsberg was returned while the Supreme Court was still deliberating whether to restrain the newspapers from publishing. And when the trial went forward, the jurors would also learn that although nine months before the Papers first appeared in the New York Times the FBI had investigated Ellsberg for taking them from the Rand Corporation, the Justice Department did nothing with that information until June, 1971.
Boudin erupted with the complaint that the trial was taking on overtones of a court-martial. As he left the courthouse one evening, he sputtered that it might be necessary to file an eleventh-hour motion for a change of venue. Instead, the defense raised a blanket challenge for cause against all persons who had ever held government security clearances. Byrne ruled against the defense, saying, in effect, that Ellsberg and Russo would have to deal with the military-industrial complex through their peremptory challenges.
Relatively few prospective jurors seemed to be avid followers of the news. Those who subscribed to a daily newspaper generally said that they did not read it very carefully. Frances Morgan, a retired supermarket checker and recent widow of a sheet-metal worker, assured the court in a good-humored aside that she never believes what she reads in the papers anyway. A number who got their information from television said that they rely upon George Putnam, a conservative Los Angeles commentator who not only avidly supports American policy in Southeast Asia but also urges a similar active effort in the Middle East.
Jan Sirois, a twenty-four-year-old divorced mother of two from a military family, said that the only publication she ever read was Hairdo magazine, a supplement to studies at a beauticians’ school. Her brother had served with the CIA in Vietnam, she revealed; but she insisted upon her ability to disregard his opinion or that of her father, who “has strong feelings on things like secrecy at the top.” Just as she was leaving the courtroom after her second round of individual questioning, she blurted out, “I think a person who has access, if they find something wrong, they have a moral obligation and should let the public know. …”
Frieda H. Baldwin smiled broadly and spoke sweetly, if clumsily. She was a nighttime supermarket worker who said that she had been held up at gunpoint on the job several times. Because she had raised four children of her own plus several others, she said she had no time to read anything in the newspapers except “the funnies and ‘Dear Abby’ and ‘The Troubleshooters.’” Her favorite on television was Lawrence Welk. Was she troubled over the fact that her son's closest friend had died in action in Vietnam? “We are quite a religious family,” she explained. “If he was supposed to have gone, he would have gone, whether here or over there.”
Carl Travers, an émigré from San Francisco, had a simple description for his job with a market research firm: “not very demanding.” He said he subscribed to no magazines because he did not like to get onto “lists.” He was the only person in the one hundred who said that he had even read “fractions” of the Pentagon Papers, where he found “revelations that I was not aware of. … I felt sort of had as a citizen—you know, duped. I felt that I was misled as an American citizen. … Certain things were done or said or told that were not true.” Pressed by the judge, he finally acknowledged that “I would find it very hard, regardless of the evidence, to punish someone that severely for something that I felt was justified.”
Travers was dismissed for cause, on the judge’s own motion. Mrs. Baldwin was eliminated on a peremptory challenge by the defense, Mrs. Sirois on a peremptory challenge by the prosecution.
Altogether, the defense had fourteen peremptory challenges to exercise and the prosecution six. Nissen used his to excuse the mothers of draft-age sons, relatively young people who said they were against the American war effort, and when the jury seemed to him to be getting overwhelmingly female, other women. The defense picked off some of the oldest members of the panel, those who seemed enthusiastic about the war, men with military backgrounds or defense jobs, women from such families, those deemed too assertive of their ability to be “fair and impartial” as demanded by the judge, and presumably others whose mouths were tightly closed. Only a few people, including two whom Judge Byrne felt were too thoroughly “indoctrinated” about the security classification system, were excused for cause.
The process ultimately placed a low premium on awareness and provided a reward, a spot on the jury, for relative ignorance of the Pentagon Papers controversy. The impaneled jury included eight women and four men of an average age well over fifty. Eleven were whites and one a Japanese-American. There were no college graduates, and none of the jurors had read any of the Papers in the more than a year that they had been public. Two expressed mild antiwar views, and two seemed to support President Nixon’s conduct of American policy in Southeast Asia. Eight insisted that they held absolutely no opinion on the subject. Much the same profile was true of the six alternate jurors later selected, except that they included two Chicano women and a black man.
It is perhaps the essence of the American judicial system that juries, after hearing the evidence, may surprise their admirers and detractors; the “Chicago Seven” and Harrisburg conspiracy defendants had learned that lesson. But as the Pentagon Papers jury was sworn, the prosecution seemed elated and the defense discouraged. In theory, as Russo put it, “any twelve people should be able to acquit us.” Ellsberg, on the other hand, admitted, “I did have a fantasy that there would be twelve people on the final jury who had read substantial portions of the Pentagon Papers.”
The defendants, each thirsting for the opportunity to explain his motivation and his personal conversion on the war from the witness stand, had come to envision the trial as a veritable seminar, an election-year reenactment of the painful debate over American policy in Southeast Asia. But it was not at all clear whether this jury was willing to cooperate in such an undertaking. Ellsberg’s and Russo’s lawyers began to reexamine their once confident strategy for defending the case.
Byrne, after a private inspection of the electronic surveillance log, declared that the conversation at issue was “utterly without significance or relation in any way to this case” and “could not conceivably relate to the attorney-client privilege.” He endorsed the prosecution’s refusal to reveal who on the defense staff had been overheard (informed speculation later centered on Boudin, who is the American attorney for the governments of Chile and Cuba), and ordered that the trial proceed.
The defense, however, seizing upon the mysterious wiretapping revelation as a possible opportunity to expand the rights of criminal defendants under the Fourth and Sixth Amendments, obtained a stay from the U.S. Court of Appeals for the Ninth Circuit. A three-judge panel quickly heard the appeal on its merits and upheld Byrne's decision. Although the defendants themselves were not at all sure that they approved, Ellsberg’s and Russo’s lawyers then went to Supreme Court Justice William O. Douglas, pulling him out of a cocktail party at a judicial conference in Pasadena. Douglas ordered both sides to follow him to Yakima, Washington, near his mountain retreat in Goose Prairie, for a hearing the next day.
After pondering the matter overnight, the justice ruled that “the powerful electronic ear of the government” might have heard too much. He said that the trial must stop until the full Supreme Court could decide whether to take the defense appeal over wiretapping. Solicitor General Erwin N. Griswold tried but failed to get the Court to convene in special session to consider immediately setting aside the stay granted by Douglas. The Court replied that in due course, but only then, the justices would decide whether to hold up the trial for a solution of the electronic surveillance problem or to let it become a potential point on appeal should Ellsberg and Russo be convicted.
Under the circumstances, the trial could not proceed. The jury was put “on leash” (the government’s term) for at least three months, a situation unprecedented in the history of American jurisprudence. Byrne warned the jurors not to read or listen to anything about the case during that time, and then he and the defense and prosecution settled back for the same suspenseful wait. For the time being at least, the long and peculiar saga of the Pentagon Papers was denied its next act.