and : Lawyers and Revolutionaries

49 Lawyers and Revolutionaries: Notes from the Featuring , Charles Garry, National Conference on Political Justice and others1

by Kas Kalba and Jay Beste

Kas Katha is a topic editor of Law and Social Action and a doctoral student in city planning at the University of Pennsylvania. Jay Beste, also at the University of Pennsylvania, is in the joint program in law and city planning. In addition, he is associate editor of Planning Comment, the national journal of planning students.

Published by Yale Law School Legal Scholarship Repository, 1971 1 Yale Review of Law and Social Action, Vol. 1 [1971], Iss. 1, Art. 5

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The trial of the Conspiracy alienation and often the hair style of "Do It!" Jerry Rubin 8-later-7 has opened a Pandora's box their clients, or there are no lawyers." of questions about the American The following report on the On Thursday evening, Jerry Rubin judicial system. Some of these National Conference on Political arrives on the Penn campus. Half questions concern the revolutionary Justice, held from March 19 to 21, Mighty Mouse, with arched shoulders forces in America. But others strike 1970, may help us to understand some and upraised, clenched fist, and half directly at our thinking about the of the legal and emotional issues Alfred E. Neuman, grinning with courts. involved. The conference was held at satisfaction at nearly 3,000 students Where, for example, does the the University of Pennsylvania, an who gathered at Irvine Auditorium to young lawyer, steeped in the tradition institution that prides itself on not hear him, he proceeds to lambast the of Brown v. Board of Education.fit having undergone any violent student media, parents, the schools, liberals, into the iconoclastic cultural disturbances. But for the most part, ending it all with "Do it!", which revolution that is occurring around the speakers assembled at the not-so-incidentally is the title of his him? Can he cling to notions like legal University brought to its halls a verbal latest book. aid to the poor, school desegregation turbulence that is probably without He speaks a lot about freedom. and civil liberties while the courtroom precedent in the school's lengthy "Freedom in America," Rubin quips, is being transformed into guerrilla history. Moreover, recent events in Bel "is the right to grow up and oppress theater? Air, Maryland and elsewhere fueled your children, dig it .... We're gonna Or, will the radical defendant the rhetorical heat of the speeches and get stoned with our kids .... Seven- allow himself to be defended by gave the conference the air of a minor year-olds know where it's at .... before organizations such as the American historical happening. they get into the schools." Or: "Free Civil Liberties Union? Have his speech in America is Eldridge Cleaver being able to have a best seller and still protests gone beyond traditional be shot down the minute he sets foot questions about rights? As Dwight into the country." MacDonald notes in the introduction In talking about his program, to The Tales of Hoffman, an edited Rubin is less metaphorical, although version of the trial transcript, not necessarily more precise. "We "In the new style radical courtroom don't want to repeat the miserable life tactics, either the lawyers share the https://digitalcommons.law.yale.edu/yrlsa/vol1/iss1/5 2 and : Lawyers and Revolutionaries

our parents lead .... their bore - youngsters after school for bad Who is Jerry Rubin? Someone on a dom .... What we're against is manners and bad thoughts (the intent total ego trip? Someone out to prove competition that makes you look at to riot). "It was like school, that was that violent thoughts and words your brother and say, 'I hope I get the only analogy." should not be outlawed? Or a deadly better grades than him or make more Watching Jerry Rubin's bodily serious revolutionary who is as money than him .... ' We can't count and verbal antics makes one almost disciplined as he is playful? It did not on anyone in power because power is forget that this man carries a prison seem likely that the lawyers who were corrupt." But what do "we" want? On sentence in his hip pocket. Yet prison, to speak on the following days would this count, Rubin's suggestions are Rubin intimates, may be freer than the answer this question. abysmally few. "We're against racism, outside. While, to the bourgeois, sexism, capitalism, and we want to 'do prison is the next worst thing to The Courtroom As it!' "Do what? "We're finding out incest, it is the locus of true brother­ A Political Forum hood to Rubin. "There's no racism that the only truth and education is The four-member panel calmly behind bars," he says. When he was action in the streets." To do what? prepares to discuss "Trials for War ordered to have his hair cut after the To: "do it!" Dissenters." Set above the listeners, Chicago trial, Rubin continues, the In Revolution for the Hell of It, beneath a bank of unseen lights and inmate barber whispered in his ear: "I writes, "We are living fringed on both sides by deep-blue 51 won't cut off much, just trim it a little TV ads, movies. Yippie! There is no drapes, the panel looks like the usual and wet it down." program. Program would make our assortment of patricians preparing to movement sterile. We are living Again, it was youth's obscenity, dissect the judiciary for the student contradictions. I cannot really explain its long hair, and so on, that Julius plebians. it. I do not even understand it Hoffman tried to suppress in Chicago. Bang! "We are on the brink of the myself." The carry-over to Jerry At the same time, Rubin is careful to greatest constitutional crisis since the Rubin at Irvine Auditorium at first point out, youth's enemies are not beginning of this country," Stewart seems complete. Rubin has the only on the repressive right but also Meacham begins.2 "We are in a audience in his palm, but it's not clear among the liberals who-like the four situation where the state is exercising a where he's leading them. Does he dissenting jurors at the trrial-are monopoly on violence to perpetrate really want us to "do it," with all the willing to compromise with injustice. criminal acts on the peoples of the mystery that the term conjures up The same applies to liberal lawyers world." Should the judiciary be the (breaking windows? intercourse? who refuse to acknowledge the forum for the resolution of essentially dropping out of the universities, which political nature of cases against political controversy? This is the issue are only an "advanced form of toilet Yippies, SDS members or Black which the panel, in one form or Panthers. Rubin wants to turn civil training"?), or does he simply want us another, will address itself to. liberties lawyers into flaming to reverberate these two cabalistic The background of the panelists revolutionaries, as happened to words at the enemy? Do it, do it, do puts the controversy in bold relief. William K unstler. it! The enemy won't know what the James St. Clair, attorney for Rev. Ultimately, there is a sense of words mean any more than we do, but William Sloan Coffin of the Boston both overture and apocalypse when invocation of the unknown is power. Five, says, "The courtroom is Rubin speaks. Two students who were Only gradually does the dialetic of inherently unsuited for the resolution present at a private session with the 'the new myth appear. Youth's of political disputes .... I do not at all Yippie leader before his public language is its strength. For a moment, support the conduct of counsel in the appearance reported the following in Rubin plays McLuhan. The youth Chicago trial." While Mike Ferber of The Daily Pennsylvanian: culture, particularly their language, is the Boston Five, in vivid ·contrast, says, continually being commercialized by At one point, one of the people in the "You can't separate politics and the the Establishment. We have revolu­ room remarked to Jerry that his father legal system," and Richard Axelrod, 3 tions in toilet paper, sex through was a judge. To this, Mr. Rubin "I hope Kunstler is held up as an Ultrabrite, trips to the Bahamas, queried, "Why don't you kill him?" Of example to attorneys around the Dodge rebellions. "But the key word is course, we all thought he was country." fuck; they [Rubin smiles) can't co-opt joking-but then, he explained how it The contrast seems too pat, too fuck." really would be "dramatic" and typical, too much in keeping with So "fuck" it is. They'll never print dwelled on the subject of assassination what we know of the participants' ages that in the Chicago Tribune. And to the point where none of us in the and ideas of propriety. St. Clair, the maybe not "do it" either. It's a myth room doubted his seriousness. When perfect libertarian, believes that all of permissiveness we're talking of. one of us asked if the Yippies really people are entitled to legal representa­ That, after all, Rubin points out, was believed in assassination as a political tion. In his view men are indicted for what the trial in Chicago was all tactic, he simply replied "Sure!" and civil or criminal acts, but not political about: youth's obscenity, its hair, seemed surprised that we asked. ones. The lawyer is only an inter­ clothes, music, drugs. Julius Hoffman mediary between the judge represent­ was the principal who kept the ing the godhead and the defendant, lost in the labyrinth of judicial procedure. The courtroom setting is Published by Yale Law School Legal Scholarship Repository, 1971 3 Yale Review of Law and Social Action, Vol. 1 [1971], Iss. 1, Art. 5

not designed to resolve political Jury nullification is also at the Today a black person(s) may present disputes, St. Clair continues, because heart of the Black Panther position one kind of testimony and be the rules of evidence are designed to that blacks should be tried by other overruled by the testimony of one or narrow issues, not to open them up, blacks. Blacks should be judged by two whites. and because judges are not equipped their own community standards and Poverty is also at issue. "The by training or age to decide political not by those of white lawmakers, who kinds of due process," says Burns, matters. The single flaw in his logic are more interested in order than in "that a welfare mother can ex- concerns the lawyer's role in a trial justice. The political trial puts the law pect ... are very different from those like that of the Boston 5 or the and the defendants in the balance, and that a businessman can expect." The Chicago 7. Who still believes that the the vindication of the defendants money bail system discriminates strictly traditional defense in Boston comes through educating the jury in against the poor. Because of such accomplished what the defendants the justification of the defendants' defects in the judicial system, all desired? Not the defendants, at any action. blacks and poor people who are on rate. So the session ends. The lawyers trial are unquestionably political Axelrod reflects the thinking of differ in opinion, but they still defend prisoners. the young radical lawyer. Criminal their clients within the traditional Cecil Moore adds to Burns' trials are inevitably political because it rules. Many of us wonder why. How observations twenty-five years of 52 is the helpless, the poor and the long can men continue to believe in experience in criminal practice. He outcast who are on trial. To him, the judicial system while going to jail says he has defended accused robbers, "Lawyers are people with a skill, but for "crimes" of conscience, of dress, rapists, revolutionaries; in total, over they must realize they are no different of lifestyle? 185 ,000 defendants-virtually all of from the people they defend except whom were black. Too often blacks for that skill." When the charge is "All Power To The People" become defendants simply because the police or public needs scapegoats. political, the trial can be used At 9:30 on Saturday morning, politically and the jury must render its Moore, who comes across as an March 21 , the third of the four verdict with this in mind. Adam Clayton Powell minus the scheduled discussions begins. Its title is Ferber is young too; and, like pulpit, has gained a measure of power "Blacks and the Judicial Process". This Axelrod, he sees most trials-and in Philadelphia's courts over the years. time, panelists sit in bare-brick certainly all conspiracy trials-in a By habitually carrying 2,000 cases, his surroundings beneath large photo­ political context. What is the antidote leverage with judges has been prints of Huey Newton, to harassment of the politically substantial. He can, after all, throw his and Eldridge Cleaver. insurgent by the state? One possibility, cases into jury one by one, thereby Charles Garry, who was to he suggests, is jury nullification. This clogging up the whole works. But, represent Bobby Seale in Chicago and morally and historically sanctioned Moore points out, a black lawyer is is now representing him in New Haven, right stems from Anglo-Saxon not allowed to carry that type of speaks first. He says that racism is common law and early American leverage for very long. Recently, the something every white man shares colonial law. In cases involving basic State Supreme Court limited the in-including himself. The degree community values, Ferber continues, individual lawyer's caseload to 188 at depends on your level of self-analysis. it permits the jury to find for the any one time. Later Garry will unequivocally assert defendant regardless of the law. Cecil Moore is an angry man­ that, "Justice in America is irrelevant Axelrod characterizes it as "jury civil angry at such rulings and laws aimed to the needs of 60 million Americans." disobedience" and warns that it may primarily at the black man. "Most of What Garry puts in general terms, the result in incarceration of the jury.4 It the laws that were passed in the last others expand upon. They hope to makes philosophical sense, he six years," he claims, "were for black describe what Haywood Burns calls continues, for the community­ people." And he obviously means "the way the black people experience through the jury's voice-to review the against, not for. Still, it is probably the judicial system en masse." validity of its laws in this way. This too late in his career for Moore to Burns, a founder of the National defense, if it can be called that, asks become a new-style political lawyer. Conference of Black Lawyers, focuses the jury to rule on the defendant's "Every time I'm in court it's a political on the historical roots of racist law in motive rather than his intent. trial with a black man," he states; but America, from colonial law to literacy This type of defense was used by he immediately adds, "I'd like my tests, poll taxes and contemporary David Harris in his draft-card burning client to walk out any way I can make consumer and zoning laws. His case. He admitted that he intended to it." conclusion: "It is still the same kind violate the law but argued that his The two Black Panther represent­ of racist system that we are forced to motive was honorable. This same live under and operate under." There atives on the panel set a different pace. tactic was used by the Chicago 7. In are, he implies, some subtle differences Their language is delivered in a trying to convince the jury of the now. In the nineteenth century, black forceful staccato: "Power to the legitimacy and beauty of their People ... Power to the progressive people couldn't testify in court at all. lifestyle, the defendants urged the jury forces ... They use the black man like to consider their motives rather than some kind of toy the courts can play their acts. with." https://digitalcommons.law.yale.edu/yrlsa/vol1/iss1/5 4 and : Lawyers and Revolutionaries

One of the Panthers, Rolando ... [Wje were unable to get any mass because they feel that way, derision Montae, was recently convicted of help from young whites on the hunger yields to hatred and fear-probably in aggravated assault in Philadelphia and caravan we recently concluded in that order-and hatred and fear lead to is out on $I 0,000 bail pending an . The students were so radical persecution, and persecution leads to appeal of a six-to-ten year jail that feeding starving people didn't court and jail, and that is precisely sentence. Yet two politically less constitute revolution to them, because where the young people are today. It threatening co-defendants, who "a man needs to do more than eat." is not smoking a joint or two or public pleaded guilty to the original charge, But while they were saying that, they fornication or anything else that I have were released on probation. Racist, were eating very well. To us, they tend described that makes people Yippies fascist, gestapo, decadent pigs: the to be superfluous. or hippies. It is an attitude that words spew freely from Montae's lips. contemporary society's values are But the Panthers seem to sense Political Justice decadent, indecent and obscene. the futility of sloganeering at a and the Yippies The other participants now predominately white student audience. The Penn students are waiting for contribute their bits-mostly it seems At times, they try a different tack. Kunstler, Garry and Wulf. For five because they are there and have to "You can't understand what it's like minutes of pandemonium, 2,000 of speak. Is there really anything more to to live in our communities ... the them stamp and cheer the arrival of say? 53 oppression twenty-four hours a the hero of Chicago. The symposium is Robert Mozenter, Philadelphia's day .... All we want is the power to on "Hippies and the Judiciary". But Assistant District Attorney in charge determine the destinies of our own nobody likes the word hippie. The of the narcotics division, speaks next, black communities." They end with a word now is Yippie-it's political, but is outclassed, outwitted and recital of the Panthers' ten-point baby, it's for change, and it's for out-radicalized by the words which program, which includes exempting revolution if necessary. preceded him. The audience jeers him blacks from military service, black In a compelling Shakespearean down when he explains that although juries for black defendants, freeing all voice, Kunstler makes more sense and most drug laws are unjust, he is not to black prisoners and a U. N.-supervised turns on more people than anyone in blame: "I'm just a young guy doi.ng plebescite for black "colonials" in three days. He speaks like a man my job." As Kl.instler later comments, white.America. humbled by 'self-revelation; not sure, Still, the question remains: can such statements abounded in Nazi perhaps, where all he has been through Germany. If Mozenter didn't agret: white activists, even radicals, get will lead him, but sure of what can no with the drug laws, what the hell was together with the militant blacks for longer be. Hear him, slowly, calmly he doing prosecuting people under the common goal of social justice. saying: them? Mozenter never had a chance: Charles Garry quotes Supreme Court he was just a nice young guy. 5 Justice Douglas: "When law is Justice in America is a supermarket; The three attorneys-Garry, the tyranny, revolution is order," and he is the judge is a poker player and the longtime radical; Kunstler, the spontaneously kissed on the cheek by cards are other people's lives. The recently converted; and Wulf, the Panther Barbara McGriff. Nevertheless, court is a negotiating session between ACLU civil libertarian-dominate the the audience's loudest approval comes the state and the criminal [to decide J last 90 minutes. As Wulf says, "I when the Panthers mention Vietnam, how much the criminal must pay for myself cannot write off the judicial not the ghetto streets. The truth of having been arrested. system completely." The problem in Jesse Jackson's (of SCLC and The new Yippie technique is ridicule: the judiciary, he continues, is created Operation Breadbasket) comments in a by the conflicts within our society. Playboy interview last year is the societal reaction is derision, hate, The young are simply saying that they unconsciously reaffirmed. fear and persecution. Again, Kunstler: will no longer countenance poverty, It is salutary to take the concerns in The issues that move them [the young racial oppression and hypocrisy in a white radicals} are qualitatively our society and to dramatize them government demanding peace at home different from the ones that concern graphically in such a way that ridicule and violence abroad. The problem is blacks. Many of the radical whites say may lead, as satire did in the not the court system, but the that materialism is no good, that one eighteenth century, to an overthrow of dichotomy of wealth and deprivation, must seek a new level of spiritualism. these things, or if they will not yield, violence by the state and the new Well, we lived for years with spiritual­ to the overthrow of the whole culture of music, sex and drugs,-and ism but without any materialism. Now shebang. the problem of race. We have to we'd like to balance the two. Because the straight community, with continue educating the judges, a certain amount of proper intuition, particularly in the lower courts. But understands that as their young people we shouldn't single out just the judges; begin to ridicule existing society, all its the legislatures, the police departments values are in grave danger. And and the D. A. offices are also to blame.

Published by Yale Law School Legal Scholarship Repository, 1971 5 Yale Review of Law and Social Action, Vol. 1 [1971], Iss. 1, Art. 5

The other extreme is Garry. White their real peers and to allow for a have happened had there been a hair, conservative suit, formal manner. system of peremptory challenge of recognition of humanity." Kunstler He sounds robust and powerful. His judges, as exists in California. With mentions that Hoffman recently tirade on the Chicago trial is the most peremptory challenge, who would granted one attorney an adjournment remarkable speech of the conference: allow himself to be tried by Judge for seven weeks so the lawyer could Hoffman? vacation in the Carribbean. There was I don't care who the lawyers were in In closing, Garry again confounds no such casual postponement for that case. That judge, that senile old everyone. He suddenly turns Garry, who had to undergo a critical son-of-a-bitch had made up his mind super-patriotic, almost hazy-eyed. operation; nor was there recognition from the day we walked in there on "But remember the goal of of Bobby Seale's right to defend April 4, 1969, that he intended to get America .... The America that we himself. When the judiciary does not a conviction, that he intended to put have always dreamt about is the kind respect the people, the people cannot the lawyers and the defendants in jail of America which belongs to all of us, respect the judiciary. no matter what the hell not just a few. We must bring America Kunstler's final word to law happened .... [And then warming to back to the people!" students and young lawyers sings the the subject] It's about time that in the Kunstler's concluding observa­ vision of a new minority legal culture: federal judiciary system this lifetime tions reveal that the five-month appointment bullshit stops. They pick experience in Chicago has altered his Go out and work with the 54 people . _ .. Be a worker-law- the judges from the political trough; life and his conception of law in this yer . .. don't have any barriers some accidently have some talents in country. He says that he has learned between you and the people . .. work some human equation, but most of three things from the trial. First, "that in their minds and their hearts. I think them are part of the political hack clients have a role to play in trials, that young lawyers should think seriously system who'll die to represent the lawyers are not the ones to run the of allying themselves with the social establishment . ... Oh, I know, some show." Political prisoners should movement, not working for money, of you will say they can be impeached; literally handle their own cases. not working for the normal rewards of when is the last time a motherfucker Secondly, "that a lawyer has a role in this system, finding a commune and was ever impeached? the courtroom other than following sinking into it. Give up the idea of the rules. Maybe this is not the decade for Garry raps like that. The room is too law being a way to make money. That judicial rules that don't apply to small to hold him when he cuts loose. may take a terrific psychological contemporary situations, and [maybe] What does he think of Mr. Wulf? "He reorientation, believe me, for I am no lawyers cannot be merely followers of can hang onto the system if he wants shining example of this. It takes a the rules. When things happen in the to, but I am satisfied that the system change-against property; for courtroom that aggravate and despair will not work. You can't amend it. something else. I think for those who them as men, such as the chaining and You can't alter it. You've got to can do it, and will do it, their life will gagging of a black man, they must re-form it-completely, from the have far more transcendental value react-and not react with .... internal bottom up .... We are in a situation than it would if they cashed in their clucking, but react with an outward where this shit must cease!" chips at age 71 with nothing in their manifestation of the disgust and What can be done about this hearts but a cold lump. system? It is ironic that Garry has revulsion which they feel." Third, "the more suggestions than anyone else. judges must realize that a lot of what First, change the federal courts to happened ... [in Chicago] would not insure that defendants are tried by

I. The National Conference on Political Justice was sponsored by the International Affairs Association of the University of Pennsyl­ vania. Jerry Rubin was presented by Connaissance. 2. Stewart Meacham is Peace Education Secretary for the American Friends Service Committee and a member of the coordinating committee of the New Mobe. 3. Richard Axelrod is Executive Secretary of the Philadelphia chapter of the Lawyers' Guild. 4. See, for example, Bushel's Case, Vaughan's Reports 135 (Ca. 1670). This case was cited by the defense attorney in the historic John Peter Zenger trial. 5. Robert Mozenter has left his position in the Philadelphia District Attorney's office since this article was written. He told the press he felt he would be more effective on the outside in attempting to rectify the discrepancies in Pennsylvania's narcotic laws. https://digitalcommons.law.yale.edu/yrlsa/vol1/iss1/5 6