The Conspiracy Weapon

The Trial of Dr. Spock

by Jessica Mitford
Knopf, 272 pp., $5.95

Benjamin Spock
Benjamin Spock; drawing by David Levine

“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…

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