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Fabricated Evidence in the Kent State Killings

I

In a country so passionate about law and order it should not be necessary to remark that falsification of evidence is a crime, and agreement to do so in concert with others is conspiracy to obstruct justice. Were students to shoot down National Guardsmen or other law officers, and were the FBI then to turn up evidence that those who did the shooting agreed among themselves to tell investigators a fabricated story, it is hard to believe the news would be relegated to the back pages and met with indifference.

This—albeit in reverse—is what happened in the Jackson State and Kent State killings. In both cases, the FBI and other government agencies have turned up evidence that the Guardsmen and law officers who did the shootings also agreed among themselves to tell FBI investigators a false story. But it would take a very delicate seismograph to locate the resultant outcry. Apparently it does make a difference when the victims are only black and/or students.

In an age of instant communication, some news still seems to travel by ox cart. The fabrication of evidence in the Jackson and Kent State killings is an example. It is important because it offers another avenue of prosecution by federal grand juries, now that both the Ohio and Mississippi grand juries have refused to indict any of the Guardsmen or law officers for murder, which is a state crime.

To those who think murder is too strong a word one may recall that even Agnew three days after the Kent State shootings used the word in an interview on the David Frost show in Los Angeles. Agnew admitted in response to a question that what happened at Kent State was murder, “but not first degree” since there was—as Agnew explained from his own training as a lawyer—“no premeditation but simply an over-response in the heat of anger that results in a killing; it’s a murder. It’s not premeditated and it certainly can’t be condoned.”

Now that murder on the two campuses has been condoned by the two state grand juries, what is the federal government going to do about it? One possibility is prosecution under the civil rights statutes—and it is a commentary on the position to which students have been relegated that they, like Negroes, must look to civil rights statutes as their last resort for justice.

Another possibility is prosecution for conspiracy to obstruct justice and for making false statements to the FBI. That Jackson city police and Mississippi highway patrolmen lied to the FBI and destroyed evidence was plain enough in the Scranton Commission report on Jackson State when it was released October 1. Little attention was paid to this aspect of it, however, perhaps because the report failed explicitly to emphasize these deceptions as an area for federal grand jury action.

That there was similar evidence of fabrication at Kent State was not mentioned in the Scranton Commission report on those killings when it was released October 4. The fabrication angle of the Kent State shootings was revealed for the first time nine days later by Senator Stephen Young, Democrat of Ohio. But the news and its significance have barely begun to percolate into public consciousness.

The speech and its reception, or non-reception, by the media would itself make a useful investigation by a school of journalism. The forum Young chose for breaking the story was hardly obscure. He broke it in a speech on the Senate floor on October 13. The way he broke it was sensational, or at least it would seem so by any normal standard of news. He read to the Senate hitherto unrevealed passages from a secret report prepared in the Justice Department last July summarizing the FBI’s findings at Kent State. “We have reason to believe,” the senator quoted from this document to the Senate, “that the claim by the National Guard that their lives were endangered by the students was fabricated subsequent to the events.”

He might as well have been carrying on a soliloquy in the Capitol basement. Though advance copies of the speech were made available in the press galleries, the speech was a non-event. It went unreported by the small army of wire-service, newspaper, radio, and TV correspondents who cover the Senate.

It took ten days for the story to reach Ohio, or about the time it would take to send it by bicycle. On October 23, the Akron Beacon-Journal splashed news of the speech across the top of page one: “Young: Guards Fabricated Peril.” I was at Kent State at the time and had with me both the Young speech and a copy of the Justice Department summary on which it was based. I assumed that either the wire services or the Beacon-Journal had caught up with the Congressional Record. Not until I began to work on this account for The New York Review, did I finally uncover the real story on how the news was broken.

It began with a young New York insurance broker, Peter Davies, who was so upset by the Kent State shootings that he wrote a letter of protest to President Nixon and sent a copy to Arthur Krause, father of Allison Krause, one of the students killed. They struck up a friendship and have been working together on the case. Davies read Young’s speech in the Congressional Record on the night of October 22 and he and Krause at once began telephoning newspapers all over the country.

They called The New York Times, the New York Post, the Akron Beacon-Journal, the Boston Globe, the Chicago Sun-Times, the St. Louis Post-Dispatch, the Washington Post, and in Pittsburgh, where Krause lives, the Post-Gazette and the Press. They also telephoned CBS, NBC, and WOR in New York.

Once the Beacon-Journal broke the story, it was picked up by the AP, but only on its Ohio state service. The UPI sent out a few paragraphs on its national wire under a Kent, Ohio, dateline. But it buried Young’s speech under an account of a minor explosion at a black student headquarters on the Kent State campus.

The New York Times, after a phone call from Davies the night of October 22 and a personal visit with a copy of the Young speech on the morning of October 23, finally ran the UPI story from Kent on page 72 of its Sunday paper, October 25, but with all references to Young’s speech omitted!

The AP’s reaction was curious. The Boston Globe queried the New York office of the AP after Davies phoned the Globe with the tip the night of October 23. The Globe asked if the AP would be moving the Beacon-Journal story. The AP phoned back in an hour and said it was an old story and to ignore it. The Globe then phoned Davies who in turn phoned the AP and protested that every newsman whom he and Krause telephoned said this was the first they had heard of it.

Thereupon the AP man said that the FBI had refused to confirm the story and that the Justice Department had said Young did not have access to its files. But, as Davies pointed out to the AP man, neither the FBI nor the Justice Department had denied the authenticity of Young’s account. The AP nevertheless declined to put the story on its national wire. The Boston Globe later published the UPI account in its Sunday paper of October 25.

There was no response on TV to the phone calls. The reaction of the newspapers varied. The New York Post ran the fullest account in its weekend issue of October 24-25 but buried it so far back in the paper (page 48) that many readers, including Davies, missed it. Krause reached Ben Bradlee of the Washington Post, which ran a top story on page 4, October 25: ” ‘Fabrication’ Laid to Guard At Kent.” This pointed out that not until Young’s October 13 speech “had the question been raised of the Guard’s consciously inventing an excuse for its conduct.”

On October 27 I showed the thirty-five-page Justice Department summary of the FBI findings on national television during the Dick Cavett show and read the passage about fabrication. The next day James Wechsler of the New York Post was the first and (so far as I Know) the only columnist to analyze the Young speech and its implications. A day later a New York Times reporter called to ask me where I had obtained a copy of the Justice Department summary. (I refused to disclose the source.) On Saturday, October 31, The New York Times published excerpts from the hitherto unpublished summary with a story of its own, which did a first-rate job of comparing the FBI findings with the report of the special Ohio grand jury. But, inexplicably, it buried the fabrication reference on an inside page; and it failed to publish an important part of the Justice Department’s summary concerning fabrication (of which more later). In an editorial November 7, The New York Times called for a federal grand jury to investigate the Kent State shootings but did not mention the FBI’s findings that evidence had been fabricated.*

II

A significant cause of the deaths and injuries at Jackson State College,” said the Scranton Commission report on the killings there, “is the confidence of white officers that if they fire weapons during a black campus disturbance they will face neither stern departmental discipline nor criminal prosecution or conviction.” This view, it added, “received confirmation by the Mississippi Highway Safety Patrol investigation and by the report of the Hinds County Grand Jury.” After the report on the Kent State killings by the Ohio special Portage County grand jury, law officers may feel as free to shoot white students as they do black.

Federal grand jury action in both cases would demonstrate that the nation will not allow a double standard of law and order, that official lawlessness and overreaction will be punished, too, as a deterrent for the future. The alternative is to leave a rankling sense of injustice on the nation’s campuses. This has already deepened the gulf between the generations, as police brutality had long deepened it between the races.

In Mississippi, the local police lied to the mayor and the FBI when they denied that they fired at Jackson State, as the Hinds County grand jury itself recognized. The police replaced their ammunition after the shootings to fool the mayor when he inspected their guns. They and the highway patrol disposed of the shell casings after the shooting to prevent their use as ballistic evidence. But the state highway patrol, while it got rid of its own shells, saved some of those fired by city police so that they could, if necessary, disprove the earlier story that the highway patrolmen alone had fired.

  1. *

    On October 26 Davies wrote the The New York Times to protest its failure to cover the Young speech. On October 29 the managing editor replied that the substance of it had already been published by The New York Times on July 24, when it reported an earlier leak of FBI findings to the Beacon-Journal and the Justice Department’s confirmation of them. “In my opinion,” Davies replied on November 2, “there is a vast difference between reporting in July that an FBI investigation indicated to the Justice Department that none [of the Guardsmen] was in danger of losing his life and learning in October that the basis for this conclusion was that the Department has reason to believe that the Guardsmen ‘got together’ after the shooting and ‘fabricated’ the story their lives were in danger.” That puts very neatly the point the Times seems to have missed.

    In justice to The New York Times it must be acknowledged that no other paper in the US except the Akron Beacon-Journal has given so much space to the coverage of the Kent State and Jackson State killings, or protested them so vigorously on its editorial pages.

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