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The Conspiracy Weapon

The Trial of Dr. Spock

by Jessica Mitford
Knopf, 272 pp., $5.95

A conspiracy is a partnership in criminal purposes.”

—Justice Holmes

The modern crime of conspiracy is so vague that it almost defies definition.”

—Justice Jackson

For every conspiracy is by its very nature secret; a case can hardly be supposed where men concert together for crime and advertise their purpose to the world.”

—Justice Harlan

Of the Boston Five, Marcus Raskin was acquitted by the jury. Benjamin Spock and Michael Ferber were ordered acquitted by the court that reviewed their convictions. William Sloane Coffin and Mitchell Goodman had their convictions reversed and will have to submit to a second trial on their conspiracy indictment, unless the Government decides to drop its case against them. As the case sputters out, the prediction of the editorial writers, summarized with justifiable derision by Miss Mitford, also sputters out:

[The case] would provide…the forum for a court challenge to the legality of the Vietnam war and hence define the permissible limits of dissent guaranteed under the First Amendment. [p. 5]

Had Miss Mitford waited for a few months she might have been equally derisive about the note which opens the book:

As this book goes to press, the four defendants found guilty (Spock, Coffin, Ferber, and Goodman) are at liberty on their own recognizance pending the outcome of their appeal, which was argued in the United States Court of Appeals for the First Circuit in January 1969.

The likelihood is that no matter what the decision of the First Circuit Court, there will be further appeals and the fate of the defendants will eventually be decided by the United States Supreme Court

We now know better: the Supreme Court will never review the convictions of the four defendants. The Solicitor General’s time to file a petition for review of the Court of Appeals’ decision has now expired. The attorneys for Messrs. Coffin and Goodman have announced that they will not seek review. One can only guess the reasons that have motivated both sides to settle for a “Mexican standoff.” Whatever they may be, they are surely linked to the unsatisfactory (to both sides) decision of the US Court of Appeals for the First Circuit.

It is too bad that Miss Mitford did not finish the story which she began so well: this story, as she makes clear, turns on the Government’s decision to use the weapon of a conspiracy indictment. This “scatter gun to bring down the defendant[s],” this “elastic, sprawling and pervasive offense,”1 is the binding theme of Miss Mitford’s admirable narrative of the trial of the Boston Five.

Part I of the book is a sprightly series of characterizations of the five defendants and of their varied roles as opponents of the Vietnam war, which led to their troubles with the Government. The indictment charged the five defendants with having conspired with one another to counsel, aid, and abet violations of the Selective Service law and to hinder administration of the draft. It cited a number of overt acts committed in furtherance of the conspiracy, including the publication in August, 1967, of “A Call to Resist Illegitimate Authority,” a press conference at the New York Hilton Hotel, speeches at the Arlington Street Church by Ferber and Coffin, the episode at the Justice Department in which the conspirators (except for Ferber) and others abandoned a briefcase containing draft cards collected at various demonstrations.

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. [p. 5]

Why these five, and not others? As Miss Mitford makes clear, the road to the dock might just as easily have been traversed by Noam Chomsky, prime mover in framing the Call (to say nothing of its several hundred signers), as well as by Paul Goodman, Ashley Montagu, and Robert Lowell, who also took part in the press conference, or by Seymour Melman, R.W.B. Lewis, or Arthur Waskow, who took part in the confrontation at the Justice Department, where, as we shall see, Waskow was irretrievably confused with Raskin by the Government’s witnesses. This confusion underscores the arbitrariness of indicting these particular defendants.

Part II is the core of the book. It begins with a reconstruction of how the Justice Department came to initiate the prosecution. Miss Mitford’s account seems to be based largely if not entirely on an interview with John Van de Kamp, head of a special unit of the Justice Department formed to speed up investigations and prosecutions of violations of the draft laws, with “special attention to violations of the ‘counsel, aid or abet’ provisions and the ‘obstruction of recruiting’ provisions.” Mr. Van de Kamp (who later ran unsuccessfully as a Democratic candidate in a Congressional election against Barry Goldwater, Jr. in—where else?—Los Angeles) was immediately responsible for framing the indictment.

Why weren’t these defendants or others indicted for the offenses of “counseling, aiding, and abetting” resistance to the draft, rather than for “conspiracy”? Miss Mitford gives an admirably clear answer to the question:

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 reached for the shabbiest weapon in the prosecutor’s arsenal: the conspiracy charge.

Why is conspiracy “the shabbiest weapon in the prosecutor’s arsenal”? To begin with, it is what is referred to as an “inchoate crime.” It does not require proof that anyone did anything illegal, but only that he intended to commit a crime, or, as the cliché has it, that he “agreed” to commit a crime. No proof that anything illegal happened is required. No proof is required that the defendants actually helped anyone to evade the draft. If Spock, Coffin, et al had met and signed a contract agreeing to “counsel, aid, and abet” draft registrants not to perform their obligations they would indeed have been guilty of conspiracy and there would have been no real free speech issue in the case. For this meeting and signing, which of course did not take place, the Government merely tried to establish the metaphor of agreement. The proof of agreement is, as it was in this case, entirely a matter of inference from what the defendants individually said and did to encourage resistance to the draft.

Another so-called “inchoate crime” is “attempt.” Did any of these defendants attempt to aid and abet draft resistance? Probably not, for the reason that what each defendant separately did did not come close enough to the completed offense. The “overt acts” required to prove conspiracy are much less close to commission of the completed offense than are the overt acts required to prove attempt. As Justice Holmes once put it:

…[C]ombination, intention, and overt act may all be present without amounting to a criminal attempt—as if all that were done should be an agreement to murder a man fifty miles away and the purchase of a pistol for the purpose. There must be dangerous proximity to success. But when that exists the overt act is the essence of the offence. On the other hand, the essence of the conspiracy is being combined for an unlawful purpose—and if an overt act is required, it does not matter how remote the act may be from accomplishing the purpose, if done to effect it; that is, I suppose, in furtherance of it in any degree. [Hyde v. U.S., 225 U.S. 347, 387-388 (1912)]

In short, what would not be an “attempt” by one person can be converted into the crime of conspiracy if two or more people can be proved to have metaphorically agreed.

The “crime” of conspiracy is wellsuited to being used as a device for preventive detention. As I have argued elsewhere, “preventive detention can be accomplished if the definition of the crime is sufficiently vague and elastic.”2 Not only is the definition of the crime vague and elastic, but the procedural rules governing conspiracy trials lend themselves to outrageous limits on freedom of speech, and to the 1984-like situation of thought control through preventive detention.

The overt acts cited in a conspiracy indictment can be in themselves entirely innocent. Evidence is admissible against all conspirators on the basis of an assumption that they conspired. The government is supposed to prove the existence of a conspiracy and then to link its alleged members to it. But the very same evidence that proves the conspiracy is used to link people to it. The jury is supposed to perform the feat of holding these aspects of proof separate in its minds. No jury can possibly separate the evidence of the existence of conspiracy from evidence that individuals were connected with the conspiracy.

Further to confound the jury, each alleged conspirator can be held liable for the statements and actions of the other conspirators whether or not he was aware of what they said and did. This so-called “co-conspirators exception” flies in the face of normal rules excluding hearsay evidence. Finally, the ordinary protection of the Constitution does not apply to the place of the trial. As Miss Mitford says:

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 (for reasons that also became clear during the trial) to try the case in Boston, site of but one of the overt acts, the service in the Arlington Street Church in which only Coffin and Ferber had taken any part. [p. 66]

The protection of the Sixth Amendment, relating to the place of trial, is thus removed in conspiracy cases. The Supreme Court, with Justice Holmes dissenting, held in Hyde v. United States (1912) that the defendants could be dragged all the way across the country from California and made to stand trial in the District of Columbia, although only a trivial overt act was alleged to have been committed by one co-conspirator there, while the conspiracy was hatched and essentially all of the activity in furtherance of it took place in California, where the defendants lived.

  1. 1

    The characterization is Justice Jackson’s in Krulewitch v. U.S., 336 v. 440 (1949).

  2. 2

    The Limits of the Criminal Sanction, 97-102 (1968).

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