The United States District Court for the Northern District of Illinois (Eastern Division) occupies several floors of the new Federal Building in Chicago’s Loop. Of this thirty-story building, designed in steel and glass by the late Mies van der Rohe, the Chicago Art Institute has said, “The commitment to order everywhere present is translated into an authoritarian and heroic presence.” Its lobby is designed “without recourse to historical vocabulary,” while the building itself, outside and in, lacks all adornment. The single exception is an electric carillon on the ground floor which in normal times plays popular and patriotic tunes, but during the conspiracy trial which is now in progress the carillon has been silenced. The revolving doors at each of the four corners of the lobby are each guarded by six armed marshals and visitors are asked to identify themselves as they enter. Purses and briefcases are opened and searched. Since the beginning of the trial pistols have been taken from four visitors.
The courtrooms themselves are to be found along interior corridors on the upper floors of the building. Judge Hoffman’s court, where the conspiracy trial is held, is on the twenty-third floor and, like the other courtrooms, is two stories high. As the visitor enters through swinging doors at the rear of the room, he finds himself standing in a carpeted aisle between two rows of wooden benches. Those on his left are for spectators, who are carefully searched before they are allowed to enter. The benches to the right are for the press, though the last three rows of this section are reserved for friends and relatives of the defendants. Because the trial has attracted such attention, the benches on both sides of the aisle are usually filled.
At the end of the aisle is a chain and beyond this chain, in a large open space, sit the defendants around four tables arranged in a large rectangle. At the far end of this rectangle sit the two defense attorneys. Opposite them, seated at a table half the size, are the three government lawyers and an FBI agent who assists them. Behind these lawyers is the jury box with its twelve jurors and two alternates. Of these, all but two are women.
At the front of the room, facing the court, is the judge’s bench, elevated to form a kind of stage on several levels. On a low platform to the right sits the court stenographer. Behind her, a foot or so higher, is the witness box. At the opposite end of the stage sits a marshal in a kind of pulpit. Along the wall behind the defendants’ table there are folding chairs for additional members of the press and in this wall there are two doors. The one farther from the judge’s bench leads to a cloakroom and from there to the corridor, while the one closer to the judge leads to the lockup, one floor above. When this door is opened, the defendants, seven of whom are free on bail, may see the steel grating through which the eighth defendant, Bobby Seale, who is charged with first degree murder in New Haven and is thus without bail, had entered and left the courtroom, before the judge declared a mistrial in his case. On the wall behind the judge’s bench are conventional portraits, which belong to the judge himself, of the founding fathers, as well as one of Abraham Lincoln and three of periwigged English jurists. Above these portraits, on the upper part of the wall, is the Great Seal of the United States. The building is so designed that if this upper wall were transparent one could see directly into the lockup on the twenty-fourth floor.
The proceedings which follow occurred between 2:35 and 4:05 P.M. on Wednesday, November 5, 1969. At eleven that morning Judge Hoffman had recessed the Court until two. That afternoon, when he re-entered the courtroom thirty minutes later than the appointed time, his aspect was even more ominous than usual. The jury had not yet been called in and was not to appear until the end of the day. Twenty-two marshals, each with a pistol concealed beneath his suit coat and a badge on his pocket, guarded the various entrances. Several of them hovered at the defendants’ table.
Despite his diminutive size and his curiously dainty manner, the seventy-four-year-old Judge conveys an undeniable authority. Only after one has observed him at length does one discover the source of this authorityâ€”not in his juridical wisdom, which is hardly remarkable as the following transcript will perhaps show, but in an unmistakable theatrical gift which, at an earlier time in his life, might have been a contrivance but is now his second nature. Though he stands only five feet four inches tall and weighs hardly more than the smallest of the formidable lady jurors, he makes use of his diminished stature to enter the courtroom from a door behind his bench so that he does not become visible until he has materialized atop the highest of the several stages at the front of the room. His entrance is invariably accomplished in this surprising manner so that even spectators who have become used to the phenomenon and have learned to anticipate it are occasionally startled by what seems to be his magical appearance.
But it is the Judge’s formidable gift for impersonation, such as Dickens is said to have revealed when he read from his novels, which completes and enforces the illusion. On the afternoon of November 5 he was able not only to sustain the resonance of his voice through a wide range of modulations for an hour and thirty minutes but to convey an impression of the defendant Seale, as he read his remarks from the transcript, and of himself as he read his own replies, which raised the dialogue to an impressive theatrical level.
The mouth, his most expressive feature, is highly mobile and can be pursed and stretched to considerable effect. The articulation is precise with an occasional British vowel. The pauses, when he so intends, can strike terror. When he utters the name of defendant Rubin it is as if a chord has been struck on the Wurlitzer of a long forgotten music hall. And when he explodes the middle initial of the defendant Bobby G. Seale, one is made to feel that the innocence of that consonant has been lost forever.
What follows is the official transcription, taken by the court stenographer, of what the Judge read from his notes on the afternoon of November 5. The text is printed here without changes except for corrections in spelling and punctuation, the deletion of a few redundant passages, and references to the page numbers of earlier parts of the transcript. I have added explanatory notes which appear in brackets.
In order to follow Judge Hoffman’s statement one must know that the trial began on September 24 and the jury had been chosen by September 26. The events referred to in the transcript thus occurred over a period of five weeks. Throughout these weeks the United States Attorney, Thomas Foran, and his assistant, Richard Schultz, had been presenting their case. Their evidence against the alleged conspirators consisted largely of testimony given by city officials and by undercover agents hired by the FBI, the Chicago police, and, in one case, by a Chicago newspaper columnist who had engaged a young reporter to spy on the organizers of the Chicago protest.
Since Seale had been in Chicago for only two days during the convention and had been invited to come only at the last minute as a substitute for Eldridge Cleaver, the evidence against him was sparse. It consisted of an account by Robert Pierson, an undercover Chicago policeman, of a speech by Seale in Lincoln Park. In this speech, according to Pierson, Seale had urged his audience to “barbecue some pork,” and Judge Hoffman, over the objection of the defense, had allowed Pierson to give his opinion to the jury that this meant “to burn some pigs,” i.e., policemen.
Normally the First Amendment protects even such provocative language as this, except in the event of a “clear and present danger” that such language will incite the audience unequivocally and immediately to commit the illegal act recommended by the speaker. Since no such acts were committed either at the time or later, Seale’s speech would, ordinarily, be innocent. However, in a trial for conspiracy the ordinary constitutional protections don’t necessarily apply. A defendant may be found guilty of conspiracy even though the acts of which he is accused are themselves perfectly legal. To most citizens this aspect of the law is puzzling, but in order to understand the case against Seale and his co-defendants, the mystery must be explained, insofar as it can be.
It is no crime to buy gasoline, nor is it a crime for a second person to buy a match or for a third to hold a fire insurance policy on a building which then burns down. But if a prosecutor can convince a jury that the defendant who bought the gasoline had guilty knowledge of the intentions of the defendant who bought the match and that they shared this knowledge with the defendant who collected the insurance on the burnt building, then the jury may find that all three had been guilty of a conspiracy to burn the house down, even though the actual arsonist is never brought before the court. In the Chicago case, the government’s plan was to link Seale’s statement about pork to acts and statements of the other defendants so as to show that the combination of these acts and statements prove that the defendants as a group conspired to come to Chicago intending to incite a riot.
Under the law, each member of a conspiracy is responsible for the words and actions of all the other defendants, so that if the jury finds that a conspiracy did in fact exist, each defendant who is found to have been part of the conspiracy may then be found guilty of all the acts and statements of the other conspirators. Nor does it matter that Seale did not know most of his fellow defendants at the time of his speech and barely knew the others. A peculiarity of conspiracy law is that the existence of a conspiracyâ€”which is an agreement by two or more people to commit a crimeâ€”may be inferred by the jury from the similarity of purpose suggested by the overt acts of the defendants. The defendants need not have met in advance to plan their crime, nor need their arrangements have been made in secret. A conspiracy may be entirely public and may include large numbers of people. Furthermore the government is under no obligation to indict all the members of a conspiracy but can choose as defendants whom it will.