“These defendants are very intelligent, honest men,” Judge Larson said one morning in his chambers, “but look, this morning at five a.m. I was reading Newsweek, and it said in Newsweek that Ho-Chi-Minh…what’s his post up there in North Vietnam?” “President of the Republic,” someone suggested. “Thank you,” he continued, “it says in Newsweek that their President Ho-Chi-Minh has executed fifty thousand people and jailed another one hundred thousand for not agreeing with his way of doing things, and if we pull out of there it will be wholesale slaughter. Why don’t we hear a bit about that too in the courtroom?”
Yet he looked more grieved than annoyed, and one felt that he was not so much a war-lover as a man who devoutly followed any dictate of his state or church. “Wyzanski, Wyzanski,” he muttered distantly when he was asked what he thought of the recent Massachusetts decision. “Never heard of the man. Never heard of the ruling. Don’t see how any part of the Selective Service laws could be found unconstitutional.” And upon that he had walked into the courtroom to preside over the trial of twelve men who were pleading that they were innocent in committing burglary, arson, and theft upon property which they “reasonably believed to be illegal and unconstitutional”; that they had committed these acts “with the intent of saving lives,” at the biddance of “a moral law higher than that of any nation”; and that they had been bound to act by their religious consciences, which they defined as “the contact point between an individual and God.”
Early in the trial the defendants moved that the charges of arson and theft against them must be dropped, arguing that 1) market value, not replacement value as the State defined it, determined the value of stolen property and that 2) the State had failed to prove that the market value of the draft records was beyond one hundred dollars, the sum which distinguishes felony from misdemeanor. The prosecution’s witness against this argument was Major Lane, a crew-cut, perspiring Army officer who serves as Administrative Officer of the State Selective Service System in Madison. He testified that it had cost him seventeen dollars a day to stay in Milwaukee during the time he was busy reconstructing the burnt draft files, thus hiking the State’s replacement cost to several hundred dollars.
Father Mullaney: Seventeen dollars a day for room and board for Mr. Lane, that’s kind of staggering to my imagination. I don’t know why that should be against us. That it takes seventeen dollars a day.
James Forest: I am flabbergasted by the price that he spent for room and board. I want to know if this was the cheapest he could find.
Doug Marvy: We are all living now, and have been for quite some time, on one, two, three dollars a day.
The Court: Yes. Well, if you register in any of these Wisconsin hotels, the Schroeder Hotel or the Pfister, or Holiday Inn…seventeen dollars a day is not an exorbitant figure, to meet those costs.
Robert Graf: I can’t afford that.
The Court: Son, I’m merely answering an inquiry…concerning the cost which they thought was exorbitant.
Fred Ojile: The reason for the surprise is that most of us live very well on twenty or thirty dollars a month, and that we see money as very much the root of the evil in society….
The Court: All right, fellows, all right.
A few minutes later the defendants tried to confront the Major with the morality of their action, which triggered the Court’s futile, hourly ruling that no discussion of the Vietnam war should be allowed in the courtroom.
Robert Graf: Just a very simple question. Would you consider the value of property to be more important than the value of human life?
Mr. Samson: If it please the Court, I object to the question on the grounds that it is not material and it’s not relevant and it’s inflammatory.
The Court: And it is, inflammatory.
Mr. Samson: No question about it being inflammatory.
Robert Graf: I’m inflamed about the deaths.
The Court: I just advise you, you must not ask a question that is intended to inflame the jury on an issue that is entirely apart from the subject matter the witness is testifying to.
Robert Graf: I think that’s a point of view. To me the lives of my brothers in Vietnam is not apart from the Selective Service System.
The Court: None of us like to see this happen. It is most sad and unfortunate … but this is not the issue before the Court.
Robert Graf: It’s my issue, and that’s why I’m here in Court. Those lives are my issue.
The Court: You tell that to the jury, Mr. Graf, at the time you wish to argue.
And the judge, mild in manner but predictable in his ruling, denied the defense’s motion for dismissal, ruling that the State had established a prima facie case against the defendants and that they were guilty of destroying property whose replacement value was over $100. The prosecution rested its case with a flourish of evidence—screwdrivers, policemen, cleaning women, photographers, charred draft records, gasoline cans. It was an academic display, since the defendants in this unorthodox case had readily admitted to having committed the material acts of which they were accused and were asking for acquittal on moral and political grounds.
As the defendants’ testimonies began to unfold on the sixth day of the trial, it became clear that the defense’s first tactic was to invoke the so-called “defensive privilege”—statute 939.48 in the Wisconsin legal code—which states that actions ordinarily punishable under the criminal code may be considered privileged, i.e., non-criminal, if the action is taken with the “reasonable belief” that it may prevent bodily harm to another party. Claiming “privileged” action, the defendants argued that the events of September 24th were “efforts to forestall injury to third persons, third persons being drafted into a war of doubtful legality.”
They also pleaded that they had tried every legal recourse they could to stop the war, and that their act of civil disobedience “had the purpose not of disobeying the law, but of demonstrating its unconstitutional character.” Crucial in the defense’s argument, because it involved the admissibility of evidence, was its contention that in order to prove “reasonable belief” the defendants were entitled to offer as exhibits scholarly opinions contained in books, documents, and legal journals testifying to the illegality of the Vietnam war, and to the Christian teaching that the individual must follow his own conscience when his government’s conduct is of doubtful legality.
The offered exhibits—some three dozen in number and all rejected by the Court—ranged from the Congressional Record’s list of the war dead and Pope John’s encyclical “Pacem in Terris,” to Gordon Zahn’s book on the Catholic Church in Hitler’s Germany and the New Testament. Judge Larson overruled the prosecution, which had agreed to admit the New Testament as an exhibit, on the grounds that “to admit [the New Testament] into evidence may create substantial danger of undue prejudice or of misleading the jury.”
(“That’s beautiful,” Fred Ojile had yelled out.)
Judge Larson also objected to the defendants’ plea of “privileged action.” “Anybody who’s about to cross the street here, Juneau Avenue,” he said, “runs a chance of being run over…shall we stop them crossing the street for that reason?” He preferred not to distinguish between acts against persons and acts against property. “Mr. Forest,” he asked, “was John Wilkes Booth justified when, believing he was acting for the welfare of the Confederacy, he shot and killed Abraham Lincoln?” Forest, a disciple of Eric Gill and of Prince Kropotkin, was a brilliant high school drop-out who had had a multifold career as free-lance writer, editor of the Catholic Worker, draft counselor, college lecturer and artist. He showed talent and evident relish in his new career as a self-styled lawyer.
I would simply point out that, one: the only charges against us are property damage, damage to property, not to persons, and that, in fact, we were trying to prevent people from getting killed. So, the direction is opposite. I’m not saying that the jury should find us innocent. I’m simply hoping that the Court will allow us to try to demonstrate the reasonableness of our belief and to decide for themselves whether, in fact, it was reasonable. The jury must determine whether the threat was apparent…whether we could reasonably believe as we do. Therefore, all the evidence relevant to establishing either one of these points we believe must be admitted into evidence, so that the jury can decide these points…. The Court, in Weston Versus State 28 Wisconsin 2nd, 136 of 1964, agrees with this analysis. The Court here allowed evidence to be introduced under 939.8, self-defense, and then, gave an instruction to the jury explaining that theory….
It was an admirable argument. But after four hours the prosecution objected that the defense still had failed to prove that Selective Service offices constituted an “imminent” threat to anyone’s life. Judge Larson upheld the objection, cleared his throat ominously, and ruled that section 939.48 of the Wisconsin penal code regarding privilege was “not applicable in this case.”
“Jesus Christ,” Reverend Higgen-botham blurted out.
Larson looked sadly at the defendant and said: “Well now, Reverend Higgenbotham, was that proper?” The judge let the impertinence pass without a threat of contempt, and he continued to do so until the end of the trial:
The Court: I shall not permit any testimony about the fairness of the draft or the fact that it discriminates against some, and as far as the Vietnam war is moral or anything else, it is not relevant here.
Fred Ojile: Oh for God’s sake, don’t give me that. What do you think we’re playing, tiddlywinks?
The Court: Who do you think you are talking to?
The Milwaukee defendants, earlier, had grandly subpoenaed General Hershey and the auxiliary bishop of St. Paul, Minnesota as defense witnesses. Declaring indigency (Reverend Higgenbotham testified that his sole worldly possession was an automobile with a market value of fifty-five dollars on which he still had two hundred dollars to pay), the twelve had asked that Milwaukee County pay for the witnesses’ transportation costs. This request went unfulfilled, and the accused used their defense funds to fly three expert witnesses from the East Coast to testify on the “reasonableness” of their views on the war and on civil disobedience. The three—Howard Zinn, John Fried, and Marvin Gettleman—seemed to make Judge Larson highly uncomfortable. Howard Zinn’s hour and a half on the witness stand was Grand Guignol. The prosecution objected at every few words that the defendants’ cross-examination was immaterial or that Dr. Zinn’s opinions were irrelevant; the judge sustained the objections, pounding the gavel like a Guignol policeman batting down the hobo when he tries to rise. Nevertheless the courtroom audience burst into frenzied applause at Zinn’s truncated testimony.