Finally, the defense decided to rest because the Harrisburg Seven had never come to a conclusion among themselves about the true nature of the Harrisburg conspiracy trial. At one pole of opinion were Philip Berrigan and Elizabeth McAlister, who clearly envisioned it as a political trial in which it was their duty to elaborate on the government’s criminality, and who were the most eager for a defense. To Joseph Wenderoth and Neil McLaughlin, however, Harrisburg was not a political trial because it had not been totally instigated by motives of resistance. They saw it rather as initiated by the crime passionnel of Elizabeth’s and Philip’s letters of affection, by mistakes committed by two persons who had desperately needed to communicate with each other.
One of the gravest dangers of a defense, most of the accused and their lawyers agree, is that it would have had to explain the psychological setting in which the exaggerations of the Berrigan-McAlister correspondence occurred. This highly subjective, emotional theme might have been beyond the jury’s grasp. It would also certainly have triggered a brutal and vindictive cross-examination by the government, which, by stressing the use that Elizabeth and Philip had made of the informer, would have made Boyd Douglas a more dignified and credible figure.
During the summations a curiously sexual struggle emerged between the government and the defense over the person of Boyd Douglas. The defense contended that the informer was, in Terry Lenzner’s excellent phrase, “a street-wise and accomplished con man” who had duped innocent persons long isolated in religious institutions. The government in rebuttal maintained that Douglas was an innocent orphan who had been led astray by men and women blessed with the opportunities of higher education. It was like a rape case. How aggressive was the seducer, how willing was the seduced? It is ironic that the conservative Justice Department lawyers took the same fatalistic view of Douglas as was held by many extreme radicals: that he was a helpless victim of American society.
Elaborating on Douglas’s guilelessness and on the defendants’ cunning, William Lynch, in his summation, shrewdly addressed the jurors as law-abiding parents.
“They refer to Boyd Douglas as Judas…even if the defendants had the effrontery—I hope they wouldn’t—to imply that they have some kinship with the man betrayed by Judas…when you talk of betrayal, let’s talk of the betrayal of leadership—students at raps—what kind of betrayal is that? Students should be led to zap Selective Service boards on campuses? What are they doing, playing handball with these issues and with the ideals of these students? Who gave him [Philip Berrigan] the mandate? Who elected him? Wouldn’t you shudder if you were a parent at that school?”
“To think we educated him,” defense counsel Father William Cunningham, a Jesuit, moaned after the Catholic prosecutor, a graduate of Fordham, had finished his summation. “To think he went to our schools.”
Throughout the months of the trial, I remained obsessed by the diverse kinds of transformation that the 1960s had brought to different Americans sitting in the Harrisburg courtroom; by the way the decade had produced upheaval in some lives and had left others unbrushed. William Lynch, who enjoyed attacking Pope John XXIII as the destroyer of the Roman Catholic Church, was prosecuting nuns and priests catapulted in a few brief years from a nineteenth-century cloistering into the militant core of the protest movement. The Harrisburg jurors, some of whom testified they never read about Vietnam in the newspapers, were being addressed by lawyers so radicalized by the war that they were temporarily dedicating their careers to defending Movement causes for no fee.
Then there was the lanky, contrite figure of former Attorney General Ramsey Clark, whose role had perhaps changed more than that of any other person in the courtroom. Having twice indicted Philip Berrigan for Baltimore and Catonsville when he was Attorney General, Clark came to Harrisburg to be his defense counsel; he also became the rebellious priest’s closest friend among the lawyers. When someone asked Philip Berrigan how he felt about being defended by a man who had twice indicted him, he smiled and replied, “Where would we be without our Saint Pauls?”
Hawk-nosed, sad-eyed, laconic, dressed in extremely ill-fitting, rumpled suits, the former Attorney General remained throughout the trial the most reserved of the defense counsels. One would have expected that this gangling Middle American, with his southwest twang and his winsome Jimmy Stewart manner, with his great aura of authority, had been made to order for the stolid middle western jury. But Clark, by choice, made few objections during the trial and conducted low-keyed and extremely brief cross-examinations. While Leonard Boudin nervously paced the courtroom, charming the jurors with his “I love you and understand you totally” smile, while Paul O’Dwyer destroyed government witnesses with his militant IRA manner, Clark seemed to sleepwalk through the trial.
He shied from all conversations, seldom mingled, as did the other defense counsels, with the crowds in the corridors of the Harrisburg courthouse. His closest relationship seemed to be with Philip Berrigan, with whom he managed to have a private visit every day, frequently sharing a liturgy with the priest in jail. The few comments one could wrench out of Clark were in a terse ranch hand style. (“I don’t know if the skunk is pissing,” he once drawled when asked if his phone was tapped, “but it’s awful wet around my telephone.”)
Yet Clark’s opening statement and his summation were the most dramatic moments of the trial. As if waking from a deep sleep, he delivered jingoistic but curiously moving speeches that were in the finest tradition of Fourth of July rhetoric, full of “truth,” “love,” “justice,” “the individuality we so cherish in America.” There was something of the Bible Belt preacher, of the prairie, when he spoke. He ended his summation with these words: “These defendants say, ‘We are not afraid of peace and freedom.’ And thus the government would try to destroy these people not by guns but by falsehood because the warmongers cannot stand these ideas of peace and freedom or those who seek it.”
Many months before the trial began, when the defendants were beginning to select lawyers, they had to decide whether Ramsey Clark should be asked to be a defense counsel. The final word came from Philip Berrigan. He thought for a minute and then gravely answered, “Yes, let’s have Clark. It would be so good for him.” The former Attorney General’s diffidence about his past prosecutions was as clear as Philip’s desire to bring salvation to all men. When Clark rose to make the motion for a directed verdict of acquittal, he ended with these electrifying words: “If the government’s evidence had been given to me when I was Attorney General I would never have let it go to the Grand Jury…. I ask for acquittal.” Lynch sprang to his feet like a terrier. “But he’s the one who drew up the Spock indictment,” the prosecutor whined. “Yeah,” Clark said, “and look what happened to Spock.”
The Harrisburg jury voted ten to two for acquittal on all charges except those of contraband against Elizabeth McAlister and Philip Berrigan. Their deliberation lasted seven days, and is said to be the longest deliberation in the history of federal trials. The verdict of mistrial on the government’s vindictive three-pronged conspiracy charge was seen as a clear victory for the Movement, and as a stunning blow to the Justice Department. The lawyers think there is a good chance that the verdict on contraband will be reversed on appeal, on the grounds that letters are frequently passed in most prisons and this has seldom—if ever—been prosecuted.
The government’s choice of Harrisburg—a notoriously conservative town sheltered and removed from twentieth-century events—was regarded as one of the most punitive aspects of the Harrisburg indictment. Yet perhaps it was the Harrisburg jurors’ almost total isolation from the protests and turmoil of the 1960s, the fact that they had never witnessed a picket line or a demonstration, that left them free of prejudices against antiwar dissenters, free to pierce through to the truth with the blunt clarity of their consciences.
The two jurors who held out for conviction on conspiracy were Lawrence Evans, an owner of several large supermarkets, one of the most prosperous of the twelve, and Kathryn Schwartz, the mother of four conscientious objectors. Mrs. Schwartz is a member of the Church of the Brethren, a pacifist but highly conservative sect prevalent throughout Pennsylvania, which takes a stand against engaging in any war and an equally firm stand against any form of political activity. Mrs. Schwartz was described as a woman who—in the tradition of many Pennsylvania peace churches—was barely allowed to speak at home, and was used to being dominated by the men in her family.
Mr. Evans was described as a blindly obedient servant of the state who believed that “if the government has spent all this money on the case there must be truth to its charges.” He is also described by one of his fellow jurors as “an unbalanced man who wanted conviction on all counts from the moment deliberation began, before we had even opened the evidence box.” Evans’s behavior had indeed been hysterically vindictive. “When the jury came in,” Evans blurted out the day after the verdict, “I would have liked to face the press and said, ‘I voted guilty on every count and I want the world to know,’ and then turn and face the defendants and say, ‘May God have mercy on your souls.’ ” Other jurors tell me that Evans shrewdly perceived Mrs. Schwartz’s malleability. He sat next to her daily in the jury box and throughout every meal the jurors shared during the two months of the trial. If it were not for Evans the defendants might have had the triumph of total acquittal on the conspiracy charges.
Most of the nine women on the jury seemed to be strongly in favor of acquittal because the government witness Boyd Douglas had lied to his girlfriends and treated them so badly—they could not, on those grounds, believe his testimony. In addition, the wily complexity of Lynch’s three-pronged conspiracy count had itself been self-defeating. The jurors claimed that they had never understood it. And they received no help from Judge Herman, a cautious, erratic, provincial barrister, who made the conspiracy count even more unintelligible by his opaque and often inconsistent final charges. Studying the judge’s charges on the intricate conspiracy count, said Mrs. Vera Thompson, the only black among the twelve, was like “going up shit creek without a paddle.”
The jury’s 10-2 vote for acquittal seemed to reflect the reasoning behind Leonard Boudin’s brilliant three-hour summation on conspiracy law. He argued that to be convicted the defendants must be proved to have made a clear-cut decision to carry out an illegal objective. Thus even if Joseph Wenderoth had crawled through the heating tunnels of the Federal Building, such an action was in the realm of “investigation, not even preparation”; it was not the firm commitment that constitutes a criminal conspiracy. Boudin ended with this plea to the jurors: They must bear in mind the crucial difference between expressions of hope—or what Philip Berrigan had termed “meandering or desultory suggestions”—and concrete criminal plans. Leonard Boudin was the jurors’ favorite lawyer. One of the twelve, Robert Foresman, an instructor at a state school for firefighters, said of him: “He was a ham but he was fascinating…. I could listen to him go on forever.”
So most of the Harrisburg jury, feared as provincial and conservative by many in the Movement, were, in their way, as knowing as anybody in the court. “Never underestimate the people,” Philip Berrigan wrote joyously after the verdict had come in. “Their common sense usually prevails against the excesses of government.”
Robert Foresman, one of the jurors most active in arguing for acquittal, was a round-faced, frequently smiling, benign man who seemed to be the most attentive of the twelve. In the voir dire preceding the trial, upon being asked whether he had read of the alleged plot in the papers, he had slapped his thigh and said, “You mean that story about zipping off with Kissinger? I always thought that was a big joke.” “I wouldn’t mind trying it myself,” he quipped after the end of the trial.
A few days before the verdict came in, I had a drink with Anthony Scoblick in a restaurant across from the courthouse. It was a little past six, the height of the dinner hour in Harrisburg, and the restaurant was packed.
“Hey, Tony, what are you going to do after you’re acquitted?” I asked.
“I’m going to kidnap Henry Kissinger and blow up the heating tunnels!” he yelled out at the top of his voice.
Nobody even turned around. Yet the Harrisburg trial remains a piece of history that could occur first as farce, but could repeat itself as tragedy.
(This is the second of two articles on the Harrisburg trial.)