To complicate matters further, the crime which the conspirators are alleged to have committed is hardly as specific as, for example, arson. The statute under which they are being tried, an amendment to the Civil Rights Act of 1968—the so-called Rap Brown Amendment—makes it a crime to cross state lines with the intent to incite to riot. Inciting to riot, under this law, is defined as an act by an individual in a group of three or more which threatens the safety or property of a fourth person. The penalty for such intentions, whether they are carried out or not—so long as a jury perceives them to have existed—is five years in jail. Since the Chicago defendants are indicted not only for having conspired to have such intentions but for actually having them as individuals, each of them faces a prison term of ten years.
As an alleged co-conspirator, Seale is charged in the federal indictment with having come from San Francisco to Chicago with the intention of planning a march on the International Amphitheatre, a sleep-in in Lincoln Park, an attack on the Loop in which, according to the indictment, “large numbers of persons would break windows, set off false alarms, set small fires, disable automobiles,” and so on. Together with the other alleged conspirators, he is also charged with a plan to invade the Conrad Hilton Hotel and hold and forcibly occupy all or part of it. The fact that Seale did no more than give two speeches in Chicago, of which only a few lines from the second were admitted in evidence, while in the first speech he urged his listeners not to march on the Amphitheatre because it made no sense for them to do so, is of no account.
Nor is it of account that no march on the Amphitheatre did in fact take place, that no fires were set in the Loop, nor were windows smashed, except in one case by the police, or cars disabled, nor was the Hilton invaded, much less forcibly occupied. The application of conspiracy law to the 1968 anti-riot statute makes it a crime for Seale simply to have revealed, by his single statement concerning “pork” and another urging his listeners to defend themselves with guns against illegal attacks by the police, that he shared a common purpose or “intent”—implying an agreement—with the other defendants, whose own alleged crimes and “overt acts” as they are described in the indictment are no less metaphysically conceived than Seale’s own.
Seale, the Chairman of the Black Panther Party, is however in considerably more trouble than his fellow defendants, for under the New Haven murder charge he faces the death penalty. His defiant behavior in Judge Hoffman’s court, which led to his being cited for contempt on November 5, may be understood partly in the light of this fact. But it also became apparent, as his outbursts continued, that he was forcing the Judge either to grant him his rights or to appear in a humiliating moral light.
It would be wrong, therefore, to regard Seale’s actions as simply those of a desperate man whose difficulties in New Haven put him beyond any punishment Judge Hoffman might inflict. Seale had argued from the day the jury first entered the court on September 26 that he had been unfairly denied the counsel of his choice and was thereafter illegally denied his right to defend himself. The basis of his first charge was that Judge Hoffman had, unreasonably in Seale’s opinion, refused to postpone the trial so that Charles Garry, Seale’s San Francisco lawyer, who had successfully defended a number of Black Panthers in California, could attend the trial after his recovery from a major operation which was scheduled for September 15. The basis for Seale’s second charge was that the judge, having refused the postponement, then refused to permit Seale to defend himself in Garry’s absence. These charges were the substance of Seale’s several outbursts in the following weeks, which Judge Hoffman was to recite with such eloquence on the afternoon of November 5, and for which he was to charge Seale with sixteen separate counts of contempt and sentence him to jail for four years, an unprecedented punishment for contempt of court.
In late August lawyers for the defense petitioned Judge Hoffman to postpone the trial so that Garry could attend it upon his recovery. On September 9, Garry himself came to Chicago to make the same plea. On both occasions the Judge, perhaps sensing a dilatory tactic, refused. On September 12 Seale was taken from his cell in a San Francisco jail where he was awaiting extradition to Connecticut, placed in a car by federal marshals, chained to two other prisoners, and driven by a circuitous route to Chicago where he was deposited in the Cook County Jail on the eighteenth.
During this period he was out of touch with the defense lawyers who were not only fearful for his safety but eager to consult with him on the preparation of their case. It was in order to see Seale in Cook County Jail that William Kunstler, one of the defense attorneys, filed an appearance on behalf of Seale, that is, agreed formally to serve as his attorney. It is partly on the basis of Kunstler’s having filed this appearance that Judge Hoffman denied Seale the right of self defense.
The right of self defense is guaranteed under the Constitution as well as by statute and has often been exercised, especially by defendants who feel that they are on trial for their political views and who want not only to defend themselves but to use the court, insofar as rules of procedure allow, as a political forum. Judges are required to grant this right provided it is requested early enough in the trial so as not to interfere with an orderly proceeding. Thus, in two Smith Act cases, Eugene Dennis and Elizabeth Gurley Flynn defended themselves, and earlier this year so did ten of fourteen defendants on trial in Milwaukee for destroying draft records.*
On September 26, the jury having been chosen and the trial about to begin, Seale submitted to the Court a motion in his own hand asking that the trial be postponed to permit Garry to attend, but in the event that the Judge denied this motion, he wanted it known that he had “fired” his lawyer of record—William Kunstler—and would defend himself. The Judge ignored this motion. Later on the same day, however, after the lawyers for the government and those for the defense had completed their opening statements to the jury and the Judge had asked whether there were any other statements by lawyers before the first witness was called, Seale got to his feet and walked to the lectern which stood before Judge Hoffman’s bench. “Just a minute, sir,” the Judge asked, “who is your lawyer?”
“Charles R. Garry,” Seale replied. The Judge then asked Kunstler whether he represented Seale and Kunstler replied, “No, your Honor, as far as Mr. Seale has indicated, that because of the absence of Charles R. Garry…”whereupon the Judge interrupted to ask Kunstler whether he had filed an appearance for Seale. Kunstler said that he had and the Judge then said that he would let Kunstler make an opening statement on Seale’s behalf. Kunstler refused, saying that he “could not compromise Mr. Seale’s position…that he was not his full counsel here,” at which point the Judge cut him short and called in the jury.
September 26, the day on which this exchange occurred, was a Friday. On September 30, the following Tuesday, Kunstler moved formally to withdraw his appearance for Seale but the Judge denied the motion, presumably because the trial was now in its second full day and the interest of an orderly proceeding outweighed Seale’s constitutional right to self defense. Seale, nevertheless, continued to insist that he had “fired” Kunstler and in Garry’s absence would defend himself.
The Judge repeatedly denied Seale this opportunity and reminded him that Kunstler, “a very able criminal lawyer from New York,” had filed a written as well as an oral appearance for him. The oral appearance to which the Judge referred was a statement made by Kunstler on September 24 that he and Leonard Weinglass, his colleague, would each represent four defendants, thus each lawyer would have a chance to cross-examine government witnesses separately.
It was not only Seale who wanted Garry’s services. So did the other seven defendants. By the end of September it had become apparent to many observers in the Court that the Judge, in his haste to get on with the trial, might, by having refused the postponement, have denied all the defendants their constitutional right to counsel of their choice. In a private conversation at this time, Thomas Foran, the prosecutor, dismissed the possibility that the other seven defendants had grounds under the Sixth Amendment to an argument on appeal, but he admitted that he wasn’t so sure that Seale’s rights had not been violated. Accordingly Foran reminded the Judge that not only were the defendants represented by Kunstler and Weinglass as well as by two local lawyers, but that four other lawyers had filed appearances for the defendants but had never shown up. Foran wanted the record to show that all the defendants, including Seale, were adequately represented and that if an error had been made it was the fault of these four absent lawyers.
Kunstler replied that these four lawyers had never intended to participate in the trial but had agreed only to prepare pre-trial motions. Their work in this respect having been completed, their services were no longer needed. Judge Hoffman, however, responded to the government’s tactic by issuing bench warrants for the arrest of the four lawyers, one of whom, a professor of law at UCLA, was awakened by a federal marshal, put on a plane to Chicago, and found himself the next morning, having been photographed and fingerprinted in Cook County Jail, in the lockup one floor above Judge Hoffman’s courtroom. That morning, as the four lawyers were facing jail sentences for their failure to honor their appearances, Judge Hoffman told Kunstler that the keys to the County Jail were in the pockets of the defense, by which Kunstler assumed the Judge to mean that “if the defendants waived their right to counsel…with respect to Garry, then the jailhouse would open for these [four] attorneys.” The defendants, who later described Judge Hoffman’s tactic as “blackmail,” refused to relinquish their claim to Garry’s services and the Judge, two of whose warrants had been found invalid by the United States District Court in San Francisco and whose own court was now being picketed by angry lawyers from all over the country, was forced to back down.
See "The Ultra-Resistance" by Francine Gray, NYR, September 25, 1969.↩
See "The Ultra-Resistance" by Francine Gray, NYR, September 25, 1969.↩