Perspective

[I] Political Trial

THE TRIAL OF DR. SPOCK

August 1969

Garlic is the ketchup of the intellectuals. Conspiracy is their astrology. In the one case the subtle problems of cuisine are covered over, in the other the subtle problems of behavior.

Astrology, whatever else may be said about it, is vulgar, and intellectuals are snobbish in their superstitions. If we are to speak as sophisticates, our deep fondness for magic must be fed on something rather more chic. Conspiracy, for example. It must be shared, of course, with others less sophisticated: ranking intellectuals were quick to find it in the murder of John Kennedy, but then so was Jim Garrison of New Orleans. Yet the notion is intellectually more respectable than sticking pins in dolls, say, or leaving thirteenth stories out of buildings.

Conspiracies do exist; the trouble is we see more than there are. The word has cabalistic overtones, and makes arcane suggestions that take the place of explanations more laborious. It serves to reduce to manageable magic the vast complexity of our actions, the painfully disorganized nature of reality. When we cannot comprehend current events, or do not wish to, we cry conspiracy.

In the trial of Dr. Spock, both sides charge conspiracy. The government sees resistance to the draft as the work of a populous league, though only five are brought to trial. The government’s critics see the trial as the work of that most fashionable of conspiracies, the Establishment. The Establishment has decided to get Dr. Spock and his codefendants; the Establishment will have its way. The trial judge conspires with the prosecution; there is little hope.

The indictment of the government is as much beside the mark as the government’s indictment of the defendants. The evil in the prosecution lies elsewhere.

The nature of the trial permits no heroes. The defendants throw down a gauntlet. The government stoops and, myopia ascendant, picks up something else—a grapefruit rind, a candy wrapper, a wet cigarette butt. We are breaking the law, the defendants declare, because it is a bad law; come and get us. The prosecution charges, but down a different alley. It indicts the defendants not for any substantive crime—not for ignoring the government’s call to arms, or even for telling others to ignore it, but only for conspiring—agreeing they will say the draft should be resisted. The defendants respond with varying degrees of candor. No lances are broken. Some are bent. The expected plangent clash is never heard.

None of us is required to be a hero, but a heroic stance raises expectations. The Reverend William Sloane Coffin, Jr., had been cast for a splendid role—paratrooper captain, member of the CIA, a fighter in the South for civil rights, a man of God. Walking through the streets with him, says Jessica Mitford, is like being in a movie about a small town folk-hero. People come up to shake his hand.… Here is part of his statement at a Washington demonstration:

The law of the land is clear. Section 12 of the National Selective Service Act declares that anyone "who knowingly counsels, aids, or abets another to refuse or evade registration or service in the armed forces … shall be liable to imprisonment for not more than five years or a fine of ten thousand dollars or both.

We hereby publicly counsel these young men to continue in their refusal to serve in the armed forces as long as the war in Vietnam continues, and we pledge ourselves to aid and abet them in all the ways we can. This means that if they are now arrested for failing to comply with a law that violates their consciences, we too must be arrested, for in the sight of the law we are now as guilty as they.

And here he is at the trial, responding to his own lawyer’s questions:

Q. Now, sir, did you at that time believe that the delivery of the draft cards to the Attorney General would hinder or impede the function of the draft?

A. Certainly not.

Q. Why not?

A. Because turning in a draft card speeded up a man’s induction and in no way impeded his induction.

Q. How did you believe it speeded his induction?

A. I knew a man lost his 2–S deferment and became a 1–A delinquent if the government chose to use this occasion to change his classification.

Jessica Mitford says this is Coffin at his worst, a noble lion forced to jump through his trainer’s hoops.… But strong-minded men have no need of casuistry, even if it is recommended by their lawyers. It is the client, not the attorney, who makes the final decision.

Recognize, however, that courts are scary places. It is one thing to speak to a cheering audience, or even to make your statement in public print. It is another to give answers from the witness chair, under the hot breath of the cross-examiner and the cold eye of the judge. Here, moreover, the sands of the battle shift; defendants, ready for direct assault, are spun around to face a bewildering charge of conspiracy. Brave men all, they are this day less than their best. Doctor Spock and student Ferber stand closest to their pre-trial lines. The other three protest they didn’t really say what the prosecution says they said.

Much of the trial is a series of antics (the judge participates) relevant to nothing but the immediate fortunes of the defendants, a drawn-out anti-climax. Anti-heroes and anti-climax; the stuff of contemporary fiction makes contemporary history.

There is a tradition (whether it should be recognized explicitly as law is a question on which courts differ) that if jurors wish to acquit in a criminal case, they need not feel constrained by the instruction of the judge. This jury seems unaware that such boldness was open to them. They were pretty much picked to suit the prosecution, yet they work hard and earnestly, and, within the limits set by the judge, aim at justice. Those limits, though, form a narrow channel, and the verdict is guilty for all but one defendant.

Then a higher court writes a brilliant sequel. The convictions are reversed.

This surprises many commentators. They are surprised because they are bemused by political trial and Establishment. A trial can be called political where the crime alleged is an attack on the regime (the Stalin purges, for example) or where the object of the indictment is not the crime it names but some ulterior political end (the Dreyfus case, the prosecution of Sacco and Vanzetti). In its pure form, the outcome of the political trial is fixed before it starts, and constitutional safeguards have no bearing. This is how these commentators saw the trial of Dr. Spock. But if this is so, then, as the court of appeals made clear, United States v. Spock et al. cannot have been a political trial.

And in any case, political trials don’t fit our legal system very well. The Communist prosecutions of the 1950s were, in the end, a failure. Even where convictions were obtained, the Supreme Court majority, driven outside lucidity by the dissenting arguments, wrote opinions whose ultimate effect was to encourage freedom. In 1957, the year Joe McCarthy died, his sense of timing with him to the end, the Yates case reduced the Smith Act to rubble. In the course of sending a number of Communists to jail, the Supreme Court mumbled away the crime of seditious utterance.

As for motivation, the order to bring the present prosecution was given by Ramsey Clark, an honest, able, understanding attorney general. In his judgment, the defendants were violating the law, in a way that could not be ignored. They invited trial and brought their invitation up the steps, through the corridors and into the offices of the Department of Justice (quite literally). Whether or not Clark’s judgment was in this instance sound—in my opinion it was not—the fact of prosecution needs no explanation; the kind of prosecution was the vice.

The obtuse unfairness of the trial is plain. But this contradicts the thesis that the Establishment has been at work. A genuine Establishment effort would have been much different, unless those who constitute the Establishment are such incompetents as to make the label ludicrous. There would have been an indictment more adept, and a trial judge who would manage things less like a law school game of count-the-errors.

Government and prosecution are not synonyms; the government includes the judiciary, upper and lower courts. If the Establishment was out to convict these defendants, the judiciary didn’t get the word. Or else the Establishment isn’t the government, but something else—a curiously weak conspiracy. (Compare the case of LeRoi Jones, sworn enemy of the Establishment: conviction, appeal, reversal, new trial, acquittal.)

What in fact took place, on both sides, was not recondite, or sinister, or even well planned. It was not conspiracy at all except in the most primitive sense—a breathing together. The defendants shared a certain view of things, and acted accordingly. So, on the other hand, did the prosecutor and the judge. The conjunction assured a verdict of guilty. It also assured a reversal.

Reversal, though, can have either of two results, a new trial or an end to the case. There was error enough, in the judge’s rulings and his instructions to the jury, to call for another trial. Was there also a more radical flaw, one that should have required dismissal of the charge?

An indictment for conspiracy gives the prosecutor certain advantages. Evidence not admissible against defendant A is heard—and damages A—because it is admissible against defendant B, and the law has not invented valves for jurors’ ears. Conspiracy also gives the prosecutor a wider choice of venue, the place of trial; it becomes possible to avoid Washington (a trial at the President’s doorstep, with blacks surely on the jury) and New York (center of anti-war sentiment) and go to Boston (thought to be more conservative). But the strategy wasn’t so much dirty; it was bush. It overlooked the fact that the federal court of appeals for Boston, in an earlier draft-law case, had been too liberal for the Supreme Court. And, more fundamental, it insufficiently appreciated that an attack on an agreement to express opinion has the First Amendment to contend with. The fascinating unreason of conspiracy transfixed these otherwise competent lawyers of the Justice Department.

Recall now what the offense consisted of. Words. And where words are concerned, the law must be very careful. Its enforcement must be frugal. The charge of conspiracy is profligate.

History indicates the wallows of our mind that conspiracy inhabits. The earliest examples cited by the Oxford English Dictionary are plots laid to the Iewes—ever-ready focus for our paranoia. But in the law the term has a cleaner provenance. Conspiracy as a crime was first defined in statutes of the early 1300s, enactments intended to protect the administration of justice. Conspirators, in the law, were people who combined to bring about the prosecution of the innocent. The offense was both injurious to public order and morally outrageous—a true and specific crime. Three centuries later, however, we find the concept stretched and abused by the Star Chamber. Judicial villainy, appropriately enough, is accompanied by bad scholarship; the Chamber managed to find a common law crime where none existed. (And by low comedy: this great development occurred in something called The Poulterers’ Case.)

It became a crime to agree to do anything illegal, no matter what the illegality was or how far from achieving it the collective dream might be. But even more: by the 19th century the crime was broad enough to cover agreements aimed at goals not at all illegal, but only contrary to public policy or public morality—meaning anything judges strongly disapproved of, most prominently labor unions. This is no longer the law, but the disreputable biography tells us a good deal about the present legal concept.

Not that the concept has no utility. It performed an honorable function in 1305 and it can again today. There are situations where combinations to commit crimes are more dangerous than individual acts of violence; they range from the Newark type to the Scarsdale type, from Mafia confederacies which add to the cost of living by imposing private taxes to corporate confederacies which add to the cost of living by robbing the federal treasury. And it is true, as the government lawyers argued, that in the law conspiracy need not be secret. The combination can be dangerous even when its aim is advertised (a lynch mob, for example). The prosecution for conspiracy is among other things prophylactic, designed to head off crime before it happens.

But it is a crime that by its definition can exist though no injury to person or to government results. And when the plotted deed occurs—when there is in fact an injury—other criminal laws are breached, and these other laws, of course, bring down penalties of their own. So conspiracy itself is a crime we should treat gingerly. There is precedent for reducing the weapons put in prosecutors’ hands when the First Amendment is involved; conspiracy, I would say, should be excluded altogether when all that is plotted is speech.

The upper court does not go quite that far. Two judges hold the Amendment puts an extra burden on the prosecution; the statute, the evidence and the procedure must all be tested strictissimi juris—by the most rigorous legal standards. By such standards, two of the defendants, Spock and Ferber, were, on the evidence, innocent; the other two found guilty, Goodman and Coffin, are entitled to a new and fairer trial. (The distinction, where Spock is concerned, is hard to follow. One has the feeling the judges were moved by rectitude, holding sub silentio that virtue must be more than its own reward.)

The third judge would acquit them all. He is Frank M. Coffin, no relation; history tolerates coincidence that art would not. Indictment for conspiracy, Judge Coffin holds, at least the sort of diffuse plot averred in this indictment, should not be countenanced where the gist of the offense is public statement on public issues. The government might have gone against each defendant for his individual acts. It might even have gone against a more specific, better defined, conspiracy. But it cannot make this bloated charge—not where the alleged agreement is to speak, and the speeches have to do with the question whether the war is right or wrong. The crime of conspiracy must shrink in the glare of the First Amendment, and become too narrow to support the kind of prosecution we see here.

Cut down resort to magic. Penetrate the cheap allure of conspiracy, in our thinking and in our law. Conspiracy to utter words, while we have a First Amendment, cannot be a crime.

THE COLLOQUIES THAT LED TO BOBBY SEALE’S IMPRISONMENT

Reduced and Freely Translated from the Stenographic Transcript

December 1969

DEFENDANT:  I want a lawyer.

JUDGE:  You’ve got a lawyer.

DEFENDANT:  He’s not my lawyer.

ATTORNEY:  I’m not his lawyer.

J:  You are his lawyer.

D:  He’s not my lawyer.

A:  I resigned.

J:  You can’t resign.

A:  He fired me.

J:  He can’t do that.

D:  I did do that.

J:  Let’s get on, and don’t make trouble.

D:  There’s just one lawyer that I want; no sub will do.

J:  This man here is highly competent.

A:  Thanks a lot.

J:  Shut up, sir.

D:  If I cannot have the lawyer of my choice, I’ll be my own.

J:  Not that either.

D:  Let me cross-examine.

J:  You may not cross-examine.

D:  You’re a racist.

J:  You’re misbehaving.

D:  I am not.

J:  You sure are, sir.

D:  I just insist upon the Constitution.

J:  You’re not fit to mention that.

D:  I just claim the Bill of Rights—like jury trial, like free speech, like due process, habeas corpus, right to bail.

J:  The hell you do. You’re in contempt, sir. Go to jail.

NOTE

I mentioned in the preface that the current use of the term political trial has been not quite accurate. It involves a sort of genetic fallacy. Originally, political trial meant the prosecution of persons accused of nothing more (or very little more) than opposition to the ruler. In the last several years, in this country, it has been used as a label for trials significantly different.

A government may be motivated by a desire to do in its opponents, but here and now it does not prove its case by simply offering evidence that they oppose the government. If Nixon had succeeded in prompting tax prosecutions of his enemies, the government would have had to show that the Internal Revenue Code had in fact been violated; it would not be enough to show that the defendant had tried to make things tough for Richard Nixon. James the First had no such problem prosecuting Walter Raleigh. At the other end, citizens may set out to provoke a prosecution. They want the public forum that a trial provides, and they break the law to gain it. Both these kinds of trial are political in their motivation, but the issue to be tried is not political. A breach of law must be proven.

Nor is the outcome foreordained. Raleigh won his case by any standard that would now be deemed controlling (and in the process out-lawyered, by a wide margin, Edward Coke, probably the most celebrated lawyer in Anglo-American history). But Raleigh was nonetheless found guilty and sentenced to death. Nor was there any doubt about who would win the scripted shows that were part of the Stalin purges.

There is a carrying over of old connotations which distort the present reality. The trials of the last decade that have been called political are not prosecutions for sedition or lèse majesté. Those who dislike the government—not just Nixon’s government but American government in general—have been careless (or calculating) in crying political trial for their own political purposes. The Spock prosecution, as I said, should not have been brought, but it is silly to assume—an assumption implicit in the description of the case as political trial—that Ramsey Clark authorized the prosecution because he was participating in a plan to scare away dissent.

[II] The Attempt to Subvert the Judicial Process

NOTE

The Lady Chatterley case had been decided in 1960. A pair of Tropic of Cancer appeals, in Massachusetts and New York, had been decided in 1962 and 1963—one each way—and that book was headed for the Supreme Court. In 1964 one of the Fanny Hill trials, in New York, had been held, and the other two, in Massachusetts and New Jersey, were about to get under way. The Supreme Court decision on Fanny Hill was two years off. At that point, Grove Press had another encounter with the anti-obscenity laws, which resulted in the case described in the section that follows.

Though the prosecutor’s actions were based on the New York anti-obscenity statute, obscenity was not the crux of the case. There were two main issues, neither of them what was being fought out in the Chatterley, Tropic and Fanny Hill cases. One was whether an official of the executive branch—in this instance, a district attorney—could without court order act in such a way as to effect suppression of a publication. The other was whether the attempt to stop him had to be made in the state courts (where the district attorney was prosecuting the publisher) or whether the federal courts could be asked to intervene. It was a case not so much about the constitutional character of obscenity as about the constitutional character of our judicial system.

Asking the federal courts to move against the officials of the states, which has since grown more familiar, was in that day quite rare, except in the field of race relations. One more chronological note: Brown v. Board of Education, the school integration case, was ten years old, and the country was still trying, not very hard, to catch up with the Nine Old Men. It hasn’t yet, of course.

READ ONE, MARRY ONE

June 1967

During the time that the battle of the books was waged, a curious parallel appeared. There were impressive similarities between the attacks on the books and the attacks on racial integration.

The leaders of the anti-obscenity groups seemed to have the same zeal as the segregationists, and to be driven by similar horrors. They were striking out against what seemed to them a defilement. In the one case it was a pure white bloodstream that might be defiled; in the other, a pure white state of literature. Two burning questions of the day were: Would you want your daughter to marry one? and Would you want your daughter to read one? The ultimate question, it seemed, was: "Would you want your daughter to be sitting at a lunch counter with a Negro, reading Lady Chatterley’s Lover?"*

The case of Evergreen v. Cahn, which involved the April–May 1964 issue of Evergreen Review, revealed another aspect of the relationship—not in the psychology of our opponents, but in the legal form the opposition took. The District Attorney of New York’s Nassau County started a prosecution of Evergreen and two of its principal officers. Evergreen then sued the District Attorney, an unusual move at the time. Nassau has a County Attorney, an official who, among other duties, represents the county in its civil litigation. The County Attorney took on the defense of the District Attorney. The District Attorney was William Cahn. The County Attorney was Jack B. Weinstein, then doubling as professor of law at Columbia, and later a federal judge, an excellent judge. The legal position on which he based the defense of his client the District Attorney was very similar to the legal position taken by the segregationists—that is, their respectable legal position.

The respectable legal expression of anti-integration anxiety was the doctrine of states’ rights. The County Attorney’s defense of the District Attorney rested on that doctrine, in a more sophisticated form. The crux, he told the federal court, was that it should not interfere in the handling of state-law matters—in this instance, the enforcement of New York’s obscenity law. Our system of government, he argued, requires that complaints about the conduct of