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.
The opening day of jury selection was like a nightmare for the Ellsberg-Russo defense. The one hundred people who filed into the cavernous courtroom past deputy U.S. marshals and signs warning that they might be searched—“a military atmosphere,” complained Boudin—seemed to vindicate the unsuccessful jury challenge. They were overwhelmingly middle-aged, middle-class whites. There was a scattering of Mexican-Americans and but four blacks in the group. As if to rub in their statistical underrepresentation, the four blacks were among the last twelve persons randomly summoned to the jury box for questioning during the voir dire.
Initially, the judge read to the group a summary of the complex fifteen-count indictment, every comma of which had been fought over by the prosecution and defense. The summary purported to explain in simple language that Ellsberg and Russo were charged with keeping eighteen volumes of a government study back in 1969; passing it without authority to “persons not entitled to receive” it (each other; Lynda Sinay, the advertising woman who rented them a Xerox machine; and Vu Van Thai, the former South Vietnamese Ambassador to Washington who was a close confidant of Ellsberg’s); “conspiring to defraud the United States” of its “lawful” governmental function of controlling the distribution of material stamped “classified.”
The assumption was that the summary would be sufficiently understood by everyone to form the basis for answers to specific questions later. Mrs. Goldstein complained subsequently, however, that she, and presumably many of the others who knew less about the case, found the summary incomprehensible. She felt that the judge had not adequately “explained the accusations” against the defendants.
According to the chatter in the jury assembly room of the courthouse when the veniremen first arrived, “all you have to do is say you’ve got a vacation planned or say you’re biased and you can get excused.” About two dozen people did stand up in reaction to Byrne’s initial questions on those points; and after offering a perfunctory explanation of the nature of their vacation plans or the seriousness of their bias, they were promptly dismissed. The rest, most of them ostensibly anxious to be selected—or, more properly stated, to avoid elimination—settled in for as long as three weeks while the voir dire proceeded.
About sixteen at a time, they were summoned to the jury box, first for group questioning and then, each out of the presence of all others, for individual interrogation. The delays were long and tedious. One group, tired of games of pinochle and hearts, spent its excess energy marching around the table in the tiny jury room.
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.
Most perplexing to Ellsberg’s and Russo’s attorneys, as time went on, was the extent to which the men and women provided an accurate reflection of the population and the economy of Southern California. A substantial majority had close and sustained relationships with the American military establishment, and many depended for their livelihood on defense plants in the Los Angeles area. There was, for example, Richard Grunenwald, who had had access to secret documents for at least ten years and felt that the entire case involved “a breach of security”; Richard G. Duenckel, who had served as a radio operator with the National Security Agency while in the Air Force and now worked for Lockheed; Dorothy J. Berkey, a housewife whose husband had been with North American Rockwell for twenty-two years and was helping develop the new B-1 bomber; and Elizabeth H. McNamara, wife of the president of North American Rockwell's space division, which received the contract for the new space shuttle while she was sitting in the jury box.
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.
There were, inevitably, some individuals who spoke up eloquently, providing dramatic courtroom examples of Americana and of the war’s impact upon society.
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.