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The Conspiracy Weapon

Let us return to Miss Mitford. In Part III of her book, she described the trial, exhibiting a sharp eye for the characteristic of the principal actors and an admirable ear for those choice bits of testimony or asides that are both revealing and fascinating. Miss Mitford could hardly be bettered as an observer, although it is true that her bias in favor of the defendants is squarely at the center of her recording lens. She never conceals her bias; and it is, if a sin, only a venial one, which adds spice to her account. Her wicked picture of the presiding judge squarely nails him with contempt for his obvious bias in the Government’s favor:

Judge Ford, in flapping robes, his face grown large and spready with the years, uses his castered swivel chair to propel himself from side to side of the bench—a very old, very cross toddler maneuvering about in his stroller. [p. 101]

She is no kinder to the prosecutor, John Wall, whose stuffiness, circumlocutory manner, and pretentiousness are hardly endearing. Even the judge apparently didn’t think much of him:

We have begun to sense the likes and dislikes developing beyond the barrier. The judge is found and fatherly toward the jury, he leans over to them beaming, and sometimes we can tell from the clatter of masculine ha-ha-ha’s that he has made a joke or two as he greets them in the morning. His manner toward Mr. Wall is hard to determine; we don’t think he actually likes Mr. Wall, rather he seems to steer him as elder to novice. Often, he does not wait for Mr. Wall to object to a defense question, he anticipates him. “Strike it out! Go forward.” His voice, deeper than gravel-toned, has the timbre of a truck shifting gears on a hill.

Miss Mitford is not only on the defendants’ side but obviously thinks them not merely in the right but also attractive. And the reader shares her opinion. If there is one clear hero among them, I would nominate the youngest defendant, Michael Ferber. He emerges as both blessed with a sense of humor and touched with fire, as if the Government had deliberately chosen to indict the best of his generation. The defense lawyers are dealt with sympathetically. But their styles are very different and Miss Mitford clearly has a favorite, Leonard Boudin, Dr. Spock’s counsel, who emerges as beau sabreur, a man who never hesitates to challenge and even to bait the judge.

The press are explicitly classed as friends and enemies. The friends are lovingly described while the enemies are dismissed as “troglodyte types from the local evening papers who specialized in making nasty comments about the defendants.”

Miss Mitford’s bias is, as I have said, only a venial sin. But it does distinguish her work from such models of trial reportage as Rebecca West’s The Meaning of Treason and Sybille Bedford’s The Trial of Dr. Adams. It is the consistent humanity toward all of the fallible people whom they describe so well that gives these works their genuine distinction.

Miss Mitford follows the play with great facility, nowhere better than in the vignette where she describes “the solid center of the prosecution case,” the scene of the draft card turn-in at the Justice Department. In that scene, the principal Government witness clearly confuses Marcus Raskin with Arthur Waskow, attributing to Raskin Waskow’s statement that the draft cards in the briefcase were evidence of a violation of federal law which the Government’s witness had the clear duty to receive. On such details does the fate of defendants in a conspiracy case hang. Raskin of course was acquitted by the jury. Who can tell what might have happened if Waskow had been indicted in his place? What could be clearer than that the eleven people at the confrontation in the Justice Department were there as individuals expressing dissent at the Government’s policy and not by pre-arrangement? Some conspiracy.

An interesting bit of the transcript is Boudin’s aborted attempt to get the Government’s witness to admit that he recognized that the defendants were trying individually to commit a crime in his presence:

Q: You allowed them to come in and served them coffee and then you indicted them?

Judge Ford: Strike it out!

Q: After the conference ended, were any others present at the conference indicted except for these five defendants?

Judge Ford: Strike it out!

Q: When you were at law school did you ever sign anything similar to the “Call to Resist Illegitimate Authority”?

Judge Ford (making a run at Boudin in his swivel chair): STRIKE IT OUT!” [pp. 130-131]

The judge’s charge, which Miss Mitford reports at length, can only be characterized as a hanging charge. Not only did he paraphrase the prosecutor’s closing argument in his statements about the law of conspiracy, but he added a special fillip of his own: a set of “special findings” which the jury would be required to make in the event of a guilty verdict. A most unusual procedure in a criminal trial. Not merely unusual, but an almost obvious attempt to tie the jury more securely than the judge is supposed to do in a criminal case, where the jury is supposed to have the freedom to render a general verdict, unfettered by any requirement that they show with precision how they reached their verdict.

That it was error so to fetter the jury is the one and only point on which the entire panel of reviewing judges in the Court of Appeals was able to agree. Indeed, even the majority of that court found it necessary to say that, in a case presenting issues of free speech, “the issue was peculiarly one to which a community standard or conscience was, in the jury’s discretion, to be applied.” It may seem odd that, in reversing and ordering a new trial for Goodman and Coffin, the court did not say that the new trial, if one were to take place, should be held before a different judge. Yet only an implied censure of Judge Ford stands.

The majority opinion in the Court of Appeals is somewhat hard to follow. The acquittal of Spock seems almost impossible to distinguish from the conclusion about Goodman. Much is made of Spock’s absence from the Arlington Street Church meeting, although Goodman also was not there. Spock’s absence seems an even stranger ground of distinction when one considers that Ferber was also ordered acquitted, although the only overt act in which he took part was at the Arlington Street Church where he made an even more powerful speech than did Coffin, who was also there. There is much to be said for the dissenting judge’s view that “the court’s acquittal of Spock and Ferber is the product of its own generosity rather than the inevitable result of its rationale.”

The dissenting judge, Frank Coffin, would have acquitted all the defendants since “whatever substantive crimes of aiding, abetting, and counseling, or whatever more specific conspiracies may have been committed, the crime of conspiracy, as charged in the indictment, was not. To apply conspiracy doctrine to these cases is…not consistent with First Amendment principles…and not capable of discriminating application as between the culpable and the innocent.” In reaching that conclusion Judge Coffin laid heavy emphasis on the openness of the defendant’s course of opposition to the war and to the draft. He goes on to denounce holding the “Call to Resist Illegitimate Authority” to be somehow the gist of the alleged illegal agreement. The majority seems to say at one time that the “Call” was not an illegal agreement, then again that acting on it later somehow retroactively made it illegal.

As Judge Coffin points out: the majority’s assertion that subsequent legal acts rendered “retrospectively conspiratorial the earlier protected ambiguous advocacy is to say that two rights make a wrong.” He poses the hypothetical case of the janitor of the Arlington Street Church who, having signed the “Call,” subsequently volunteers his services to tidy the pews for the turn-in. Would he have thus become a conspirator?

He is clearly right in saying that conspiratorial liability for signing—as hundreds and even thousands did—a document like the “Call to Resist Illegitimate Authority” would have a “chilling effect—indeed that of a sub-zero blast—on all kinds of efforts to sway public opinion.” Had these defendants been individually tried for whatever substantive offenses—the substantive offenses of aiding, abetting, or counseling draft-evasion—they may have committed, the issues would have been more clear-cut. “Nowhere,” Judge Coffin observes, did the majority “examine with specificity the utility of the rifle before resort is had to the shotgun.”

Even if Coffin and Goodman are not retried, the case can hardly be said to have been a success from the stand-point of free speech and the protection of dissent, for the majority of the appellate court refused to meet that issue. Yet it may not be unreasonable to hope that as the Government continues to use the conspiracy ploy, Judge Coffin’s opinion will appeal, as it should, to the wisdom of another day.

The current rash of “political” conspiracy cases may be attributable to the development of conspiracy law in this century as a highly sophisticated, if dangerous, weapon for prosecutors. Not only is this weapon dangerous in free speech cases, it may well turn out to be not merely dangerous to defendants but a boomerang that will decapitate a few prosecutors. It was a conspiracy indictment that backfired in the case of the Oakland Seven. That indictment, initiated in California by the District Attorney of Alameda County, charged seven organizers of Stop the Draft Week, aimed at the Oakland Induction Center, with conspiracy to commit two misdemeanors: trespass and resisting arrest. The District Attorney, J. Frank Coakley, added a novel twist to the use of conspiracy law. If he had simply charged the misdemeanors of trespass and resisting arrest, the defendants would if convicted probably have received sentences of thirty days, but under California’s antiquated conspiracy statute, charging conspiracy to commit those misdemeanors converted those offenses to a felony, punishable by three years’ imprisonment.

As it turned out, the conspiracy charge was a fiasco. The prosecution’s evidence consisted largely of playing a five-hour tape recording of the all-night Berkeley campus rally that immediately preceded the Oakland demonstration. As Elinor Langer has written in describing the trial:5

In terms of common sense alone, they made a mockery of the charge of conspiracy. The rally was in a great tradition of open, democratic meetings. It was chaired by Mike Smith, but the microphone was open to all. Dozens of people spoke, continually contradicting each other’s politics, arguing, discussing every subject in the political world from Che to Gandhi. Opponents of the demonstration were heard as well.

From Jensen’s point of view the tapes were also a disaster emotionally. They transported the jury to a political rally—in most cases, the first of their lives.

The trial resulted in the acquittal of the defendants by the jury, a kind of low-water mark for prosecutors who like to be cute about conspiracy.

We will have to wait to see what comes of the current prosecution of the Chicago Eight, on a federal charge of conspiracy to cross state lines with intent to incite to riot. This is the first test of a shiny new statute passed by Congress last year. It may also be the test of Attorney General Mitchell’s novel doctrine that the Government has the inherent right to use electronic eavesdropping without a court order in cases involving subversive activity—whatever that means. Whether or not the Government fails before the jury or before an appellate court, prosecutors will be waiting to see the outcome of the Chicago case. If the Government takes a beating in the case and perhaps even if it does not, prosecutors will henceforth be wary of the explosive mixture of conspiracy and free speech.

At any rate, prosecutors ought to see the uncertainty in which the Spock case (to say nothing of the Oakland Seven) has left them. To put the matter briefly: prosecutors ought to refrain from using conspiracy, that last shabby resort, against those who openly engage in civil disobedience.

This brings me to a last word on Miss Mitford’s book. She concludes with a ringing declaration that somehow does not quite convince:

The one right they were denied was, of course, the most basic of all: the right not to be tried for dissent. For no matter how the formal accusation was styled (“perjury” in the case of Alger Hiss, “conspiracy to commit espionage” in the case of the Rosenbergs) behind these prosecutions lay the decision of government to move against what it deemed to be the threatening and discordant voice of opposition to the established order.

There is an enormous body of literature about these cases, volume after volume by historians and legal scholars who, in hindsight, vindicate the accused out-right or cast substantial doubt on their guilt. [p. 239]

To compare the Spock defendants with Hiss and the Rosenbergs is to confuse questions of dissent with those of espionage. The “enormous body of literature” about the Hiss and Rosenberg cases is far from supporting Miss Mitford. On Hiss I might cite the first chapter of my book, Ex-Communist Witnesses: Four Studies in Fact-Finding, in contrast to Hiss’s own effort at self-justification, In the Court of Public Opinion. On the Rosenbergs, the literature, while enormous and unreviewed in Miss Mitford’s book, is far from decisive.

Miss Mitford, I submit, should have quit while she was ahead. Not every case with political overtones presents a case of repressing free speech. At this point, the venial sin of Miss Mitford’s bias becomes almost mortal. I suspect that Rebecca West and Sybille Bedford would not have made Miss Mitford’s mistake.


Advocacy January 29, 1970

  1. 5

    The Oakland Seven,” The Atlantic Monthly, October, 1969, p. 77, at 81.

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