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Home , 1960s Berkeley protests, Abbie Hoffman, Chicago Seven, John Froines, Jonah Raskin, Julius Hoffman

Social Education 83(3), p. 142–146 ©2019 National Council for the Social Studies Lessons on the Law The Eight Conspiracy Trial at Fifty: Blind Justice in Polarized Times

David Farber

In , President ’s newly appointed attorney general, John forced Americans to confront the mean- Mitchell, signed off on the prosecution of eight men, all left-wing activists, for ing and practice of America’s constitu- their involvement in protests at the National Democratic Presidential tionally protected rights to free speech Nominating Convention in Chicago. Mitchell authorized the prosecutions under and assembly, the impartiality of the U.S. the anti- provisions of a new, previously unused law. Congress had passed that judicial system, and the right and limits law, the Anti-Riot Act of 1968, shortly after the urban uprisings in cities across the of American citizens to defend them- United States following the assassination of Martin Luther King Jr. in April 1968. selves in courts of law. The Chicago That federal law, put bluntly, made it illegal to travel across state lines to “incite a riot.” Eight would, eventually, be found not guilty on all counts, but not before mil- Six of the eight men charged under Johnson’s attorney general, Ramsey lions of Americans recoiled from the the anti-riot act were prominent leaders Clark, had chosen not to prosecute any politically motivated and politically of the anti-war and racial justice move- protesters for the Chicago convention charged prosecution. At the same time, ment in the United States. One of them, events. Indeed, Clark (by then the for- many millions more embraced the kind , was the main progenitor mer attorney general) would be called to of fierce “law and order” politics that of the student . Another, Dave testify on behalf of the defendants dur- underlay Richard Nixon’s presidency. Dellinger, was the head of the largest ing the Chicago Eight Conspiracy Trial. The Chicago Eight trial was a mile- anti-war organization in the United Between September 24, 1969, and stone in American legal history. The States. and February 18, 1970, federal prosecutors defendants demanded not only the right championed a hybrid organization, the tried the defendants in the U.S. District to challenge the government’s specific Yippies, which sought to connect coun- Court for the Northern District of charges but to protest the very legitimacy tercultural youth with the era’s radical . In general, prosecutors argued and fair-mindedness of the case against politics. was the chairman that the defendants were revolutionar- them. The Chicago Eight, as well as their of the Black Panthers. The sixth promi- ies who sought to use violence to tear lawyers, deduced that , nent figure was , perhaps down the United States. Specifically, the judge who was trying them, was the anti-war movement’s best nuts-and- they contended that the men had suc- far from an impartial arbiter of justice; bolts organizer. cessfully conspired to produce mayhem from the trial’s opening moments Judge All of these men, as well as two less and violent confrontation—a riot—at the Hoffman made clear that he believed well-known anti-war organizers, were 1968 Democratic convention in order to them guilty and their politics unaccept- charged with conspiring to cross state discredit the American political system. able. The defendants responded to his lines to “incite, promote, encourage, Throughout the trial, Julius Hoffman, obvious bias by mocking him and refus- participate in, and carry out a riot” in the presiding judge, made clear his abso- ing to obey his orders. During the trial, Chicago during the Democratic conven- lute contempt for the defendants. The many Americans concluded that justice tion. Six of those men were also charged defendants returned the favor. was not always blind, and that politics with individually crossing state lines The Chicago Eight Conspiracy Trial could and did play a powerful role in to incite a riot in Chicago. Strikingly, was, in its time, a cause célèbre, mak- how justice was served in the United months earlier President Lyndon ing headlines week after week. The trial States.

Social Education 142 The defendants (formerly the Chicago Eight) at a January 1, 1969, news conference in Chicago during their trial on charges of conspiracy to riot at the 1968 Democratic National Convention. From left, standing, are: Abbie Hoffman, , , Dave Dellinger, Rennie Davis and Tom Hayden. Seated is defendant Jerry Rubin, with his girlfriend, , who was not part of the trial. (AP Photo)

Abbie Hoffman, the most outspo- Democratic National Convention, to networks broadcast images of the ken of the defendants, argued during protest primarily against the beatings and gas attacks. During the the trial that if powerful elites used the War. Some 12,000 policemen, 6,000 weeklong protests, 668 people were justice system to persecute political dis- National Guardsmen and 6,000 sol- arrested. sidents and powerless minorities then diers were there to meet them. Chicago Some three months after the protests, Americans had the right to call out that officials, led by Mayor Richard J. Daley, following an exhaustive investigation, the injustice, even if that meant disrupting had denied all permits to the protest- National Commission on the Causes and the rule-bound proceedings of the court ers, relenting only at the last minute to Prevention of Violence issued a report, system itself. He told Judge Hoffman: allow one rally in , just east Rights in Conflict. Its subtitle was “The “When decorum is repression, the only of the city’s downtown. During the week Chicago .” , a dignity that free men have is the right to of demonstrations (many held without prominent Chicago lawyer and corpo- speak out.” His powerful and provoca- legal permission), a few hundred of the rate executive, directed the staff that pro- tive claim about the balance between 10,000 protesters taunted the police, duced the report. Walker had once been the need for civility and order and the calling them “pigs” and other deroga- a law clerk for a Supreme Court Chief right of the powerless to be heard still tory names, and hurling bottles, rocks Justice and was no radical. Nonetheless, echoes through the halls of justice and and other objects. In response to such he and his team reported: in every corridor of power in America’s provocations, and often just in disgust democracy. at protesters’ style of dress and political The nature of the [police] viewpoints, Chicago police beat or tear response [to demonstrators’ prov- Protests at the Democratic gassed many of the demonstrators, as ocations] was unrestrained and National Convention well as numerous members of the media indiscriminate police violence on In August 1968, around 10,000 people and some local residents who were sim- many occasions, particularly at had gathered in Chicago, site of the ply caught up in the disorder. Television night. That violence was made

May / June 2019 143 all the more shocking by the fact tutions, including the courts, was at a low Chicago. In fact, the eight men charged that it was often inflicted upon ebb. African American activists, in par- with conspiring had not even worked persons who had broken no law, ticular, feared the police and distrusted together in planning the convention week disobeyed no order, made no the impartiality of the entire legal sys- protests. Bobby Seale, the indicted Black threat … Police violence was a tem. Anti-war demonstrators across the Panther leader, played no role in orga- fact of convention week. racial spectrum shared these misgivings. nizing the protests. He had only been What happened at the Chicago Eight trial invited by Tom Hayden to give a short The “Rights in Conflict” report, also heightened those activists’ distrust and speech to the demonstrators. That short known as the “Walker Report,” was anger, sharpening their radical critique speech, however, was incendiary. made public a couple of weeks after the of the American legal and political system. Seale gave his talk the evening after 1968 presidential election. By no means Chicago law enforcement personnel did all Americans share in that report’s On Trial had, in the words of the Walker Report, conclusions. At the tail end of 1968, the The men charged with conspiracy to launched a “police riot.” The Black American people fully agreed on very incite a riot were frustrated and appalled Panthers had long believed in “self- little. They were visibly and fiercely by the indictment brought against them defense,” by which they meant: when the divided. The , still raging by the federal government. Tom Hayden police launched an unprovoked attack, after more than four years, had polar- and Rennie Davis, the two most directly people had the right, even the obligation, responsible for the anti-war demonstra- to fight back “by any means necessary.” tion in Chicago, had co-authored and Thus, in the aftermath of the Chicago distributed a planning document in police’s mass beatings, Seale told his The American legal system, in May 1968 that categorically called for audience: “If a pig comes up on us and that fraught and divisive era, a peaceful, legal assembly: starts swinging a billy club and you check was under immense pressure. around and you got your piece [gun]— [T]he campaign should not plan you gotta down that pig in defense of Trust in political institutions, violence and disruption against yourself.” He went on, however, to say: including the courts, was at the Democratic convention. It “Now there are many kinds of guns.... The should be nonviolent and legal strongest weapon that we each individu- a low ebb. African American ... any plan of deliberate disrup- ally have is all of us ... united with revo- activists, in particular, feared tion will drive away people who lutionary principles. What we gotta do the police and distrusted the are worried about arrests or vio- is functionally put ourselves in organi- lence, and thus sharply diminish zations.” Despite the lack of prior coor- impartiality of the entire the size and political effect of dination with other protest organizers, legal system. the mobilization. that speech landed Seale in the docket with the other defendants. His prosecu- The chairman of the National tion was in keeping with law enforce- Mobilization to End the War in Vietnam, ment’s unrelenting campaign to destroy ized Americans. Following the assassina- Dave Dellinger, who oversaw the the self-avowed revolutionary Black tion of Martin Luther King Jr., over 100 Chicago organizing efforts of Hayden Panthers. Those efforts would crescendo U.S. cities had been torn apart by civil and Davis, was a life-long pacifist and in the midst of the trial on December 4, unrest. Political legitimacy and faith in diligent practitioner of non-violent 1969, when, in the middle of the night, cultural authority were in short supply protest. So pure was Dellinger’s faith in police raided a Black Panther communal at the cusp of 1968 and 1969. Richard non-violence that he had chosen to go to apartment and executed Chicago Black Nixon’s painfully thin margin of victory prison rather than serve in the military Panther leader while he in the 1968 election reflected those divi- during World War II. The government’s was asleep in his bed. (The police would sions and that fraying of faith and respect charge that Dellinger had conspired to argue that because Black Panthers had in the American political system. In a incite violence went against everything killed two Chicago police officers in a three-person race, Nixon had won the for which Dellinger had stood for more shootout the prior month, the officers presidency with just 43.4 percent of the than a quarter of a century. could take no chances when raiding the popular vote. None of the other men charged, save site of heavily armed revolutionaries.) The American legal system, in that perhaps one, had indicated in their many Seale, the only African American fraught and divisive era, was under public talks and private written commu- defendant, believed that the conspiracy immense pressure. Trust in political insti- niqués that they sought to incite a riot in charges against him were a racist travesty.

Social Education 144 He demanded that he be allowed to have rude or otherwise, they were berated to five years in prison and fined each his own lawyer and that his case be sepa- before the jury—and often cited for con- of them $5,000. The judge also leveled rated from that of the other defendants. tempt of court. Likewise, when another 175 contempt of court charges against the Judge Hoffman refused his demand. defense witness, Linda Morse, tried defendants and their lawyers, sentencing During the trial’s early days, Seale called to explain the reasons the defendants them on those charges to a combined out regularly that he was being deprived had organized the protest in Chicago, total of 19 years in prison. of his right to an attorney of his own the judge also cut her off. Against all choosing: “I fired all these lawyers a obvious facts, Judge Hoffman insisted, The Impact of the Trial long time ago. Charles Garry [Seale’s “This is not a political case as far as I The defendants’ anger over their mis- desired lawyer] ain’t here, and I want am concerned.... I can’t go into politics treatment by an obviously biased judge my legal counsel here.” And then, “Let here in this Court.” When Defense would be vindicated. In 1972, the U.S. the record show ... a black man cannot be Attorney attempted Court of Appeals for the Seventh Circuit discriminated against in relation to his to read a section of the Declaration of reprimanded Judge Hoffman, declaring legal defense and that is exactly what you Independence to Morse, in order to that his “deprecatory and often antago- have done.” By October 29, Seale had ask her about American citizens’ right nistic attitude toward the defense” had lost all restraint and he verbally accosted to protest against their government, denied the defendants their right to a fair the court, calling out the federal prosecu- the judge stopped him in his tracks: “I and unbiased trial. As a result, the Court tor: “You are a rotten, racist pig, can think of nothing ... that makes the of Appeals overturned the findings of lawyer, that’s what you are.” A few min- Declaration of Independence relevant.” guilt against the defendants, including utes later, Judge Hoffman ordered Seale The defense wanted to mount a political the dozens of contempt citations the to be gagged and chained to his chair. On challenge to the prosecution’s case based judge had issued. In a sense, then, the November 5, Judge Hoffman charged on Americans’ core civil liberties. The judicial “system” had worked. The polit- Seale with 16 counts of contempt and judge would not have it. ically motivated charges and politically sentenced him to four years in jail; his On February 18, 1970, five of the biased trial proceedings did not lead to case was severed from that of the other seven remaining defendants were found the imprisonment of the “Chicago Eight.” defendants. Seale’s furious denunciations guilty of violating the 1968 Anti-Riot Still, the Nixon administration’s Justice of Judge Hoffman and the federal pros- Act. The two relatively unknown anti- Department had accomplished a great ecutor, along with his severe punishment war defendants were found not guilty. deal. Six leading Sixties-era dissidents set the tone for much of the trial. Seale’s Judge Hoffman sentenced Hayden, had been forced to spend years of their treatment incited the other defendants to Davis, Hoffman, Rubin and Dellinger lives fighting politically motivated charges, speak out in defense of the Black Panther leader and of themselves, further dis- rupting the trial, which further provoked Judge Hoffman and made ever clearer Questions for Discussion his disdain for the defendants. The trial had become, in the eyes of many observ- 1. What challenges to a fair trial did defendants face in 1968? Do you think ers, a grotesque carnival of injustice. the trial would play out in the same way if it were conducted today? How Throughout the months-long trial, might new technology challenge standards of a fair trial? Judge Hoffman made it difficult for the defendants and their lawyers to mount 2. What do you think Abbie Hoffman meant when he said, “When decorum a defense. For example, the judge con- is repression, the only dignity that free men have is the right to speak tinually cut off a defense witness, poet out”? , who had participated in the protests. And after Assistant U.S. 3. Based on what you have learned about events leading up to the trial, do Attorney Richard Schultz finished cross- you think the charges against the Chicago Eight were appropriate? examining Ginsburg—a cross examina- tion which focused almost entirely on 4. Do you think the trial outcomes were appropriate? Ginsberg’s homosexuality—the pros- ecutor loudly sneered, “Goddamn fag”; 5. If you consider the “visibly and fiercely divided” nature of the American the judge allowed the remark to go un- people in 1968, do you see similarities or differences from today’s sharply admonished. Yet every time the defen- polarized landscape? dants or their lawyers made any aside,

May / June 2019 145 time that they could have spent fighting radicals to commit acts of terror, includ- ity and our belief in free speech and the for their political causes. The trial also ing bombings and police shootings, that right to political dissent. further radicalized the Chicago Eight, as served no constructive end. well as many of their fellow activists and Most Sixties political activists, however, sympathizers. By the end of the , refused to allow government persecution legal change within the “system” seemed, to stop their efforts to create a more just at least to some of those dedicated and equitable society. Abbie Hoffman “Movement” activists, impossible. later argued: David Farber is the Roy A. Roberts Distinguished At the end of the trial, Abbie Hoffman Professor at the University of Kansas. He is the spoke for those who had lost faith in the We were young, we were reckless, author of many books including Chicago ’68, The Age of Great Dreams, Taken Hostage (Hill and Wang, legal and political system: arrogant, and headstrong—and 1994); The Rise and Fall of Modern American we were right….We ended legal Conservatism (Princeton University Press, 2010); We cannot respect a law, a law that segregation…. We ended the idea and, most recently, Crack: Rock Cocaine, Street is tyranny ... the courts are in a con- that you could send a million sol- Capitalism, and the Decade of Greed (Cambridge University Press, 2019) spiracy of tyranny ... the only order diers 10,000 miles away to fight in is insurrection and disrespect, and a war that people do not support. that’s what we showed, and that’s We ended the idea that women what all honorable men of free will are second-class citizens. The Lessons on the Law is a contribution of the will show. big battles that were won in that American Bar Association, through its Division period of civil war and strife you for Public Education. The mission of the Division Political fury, motivated not just by cannot reverse. is to promote public understanding of law and its the Chicago trial but also by the ongoing role in society. The content of this article does not Vietnam War and other acts of political The Chicago Conspiracy Trial necessarily reflect official policy of the American repression—such as the murder of Fred reflects the precarious balance between Bar Association, its Board of Governors, or the Hampton—led a small group of political Americans’ desire for order and stabil- ABA Standing Committee on Public Education.

For Further Investigation

Chicago Ten, directed and written by Brett Morgen, 2007.

“Famous American Trials: ‘The Chicago Seven’ Trial 1969–1970,” https://web. archive.org/web/20051224003728/http:// www.law.umkc.edu/faculty/projects/ FTrials/Chicago7/chicago7.html

David Farber, Chicago 68 (Chicago: University of Chicago Press, 1988).

Jonah Raskin, For the Hell of It: The Life and Times of Abbie Hoffman(Berkeley, Calif.: University of California Press, 1996).

Daniel Walker, Rights in Conflict: “The Chicago Police Riot” (: New American Library, 1968).

Jon Weiner, Conspiracy in the Streets: The Extraordinary Trial of the Chicago Eight (New York: New Press, 2006).

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