An excerpt from
The Chicago Conspiracy Trial
When Judge Hoffman mounted the bench in his courtroom on September 24, 1969, his marshal Ron Dobroski banged the gavel and there was the shuffle and stir of everyone rising—everyone except seven of the defendants. Judge Hoffman never seemed so slight as, with his right hand tucked in a languid Napoleonic fashion into his black robe, he looked over the courtroom. Only one defendant was standing in traditional respect to the judge, stonily, head up, at the far end of the defense table. It was Bobby G. Seale, a dark brown man, with round natural hair, National Chairman of the Black Panther party. He was leaning upon the table with one fist as if to underline that he knew why his name had been tacked onto the tail end of the indictments. The marshal called again for everyone to rise. The seven white defendants did not rise and even laughed among themselves. Judge Hoffman looked here and there with brief discomfort, and chose this time to ignore the disrespect.
From California a few days previously, Bobby Seale had been driven in chains in a car by U. S. marshals from state line to state line, from one state patrol escort to another, from jail to jail, night to night, across two-thirds of the vast continent and brought to rest in the tier for federal prisoners in Cook County jail. Jerry Rubin was brought from California in the same manner, and the government’s explanation was that it feared that if the defendants were flown by plane, the plane might be hijacked and directed to Cuba. Seale had reason to say that he had been “kidnapped” because his lawyers in California had secured a court order restraining the government from shipping him to Chicago before the car was outside the state of California. The marshals knew about the court order but kept driving anyway.
Seale had spent less than twenty-four hours in Chicago during Convention Week in August, 1968, as a last-minute substitute for Panther Party Minister of Information Eldridge Cleaver. He made one speech in Lincoln Park on Tuesday night August 27 and one speech in the middle of the day in Grant Park on August 28. He met Jerry Rubin only to say “hello” that Tuesday night but did not meet his other fellow “conspirators” until the arraignment in April, 1969.
In May, 1969, he found himself arrested for conspiracy to murder Panther party Member Alex Rackley in Connecticut. Seale was held in jail without bail in San Francisco awaiting a decision on extradition. The raids on Panther party offices all over the country, the arrests and shootings of Panthers, increased drastically with the coming to power of the Nixon Administration and Attorney General John N. Mitchell, who organized a “Panther section” in the Justice Department. Seale had few doubts about whether there was a conspiracy to put him into the electric chair if possible, or in jail for a long time.
On that first day of the trial, when the proceedings were reconvened upstairs in the large ceremonial courtroom filled with prospective jurors, the seven white defendants again did not rise when the judge appeared up on the bench. The marshals commanded several young white spectators to rise or get out. Prospective jurors looked nervously at the marshals, at the sometimes colorful clothing and long hair of the white defendants, and at the lean black man standing up alone, along with the lawyers, in the blue turtleneck sweater and black pants that he often wore. He dressed very differently, for instance, from Jerry Rubin, who was also in custody in Cook County jail, and with whom Seale was beginning to talk. Rubin’s enthusiasm bristled with the new beard on his chin and the crew cut on his head. He wore an orange and red striped polo shirt that first day and laughed impulsively. Seale’s stark way of dress and the way he leaned attentively backward or forward alerted people for what he had to say.
Judge Hoffman waited for the marshal to call for everyone to rise again, then warned the defendants to rise next time lest their behavior be considered contumacious. He had already exercised his willfulness in issuing bench warrants for the arrest of the four pretrial lawyers who had endeavored, as was the custom, to withdraw by telegram. On September 20, a Saturday, to be sure, the judge had been called to the courtroom to hear an emergency motion presented by Conspiracy staff member Stuart Ball Jr., for Fred Hampton, Chairman of the Illinois Black Panther Party, to be permitted to visit Bobby Seale in jail. The judge began warmly enough saying that he would hear Ball “as a human being,” not as a lawyer since Ball was not yet licensed to practice. Stuart Ball’s father, Stuart, Sr., was an old friend of Judge Hoffman’s, and the judge would find that the father might be a distinguished establishment lawyer but he backed his son fully. Then the judge suddenly turned against Stuart Ball, Jr., and asked him who forged Kunstler’s name to the motion, when Ball himself had said that Kunstler had permitted someone else to sign his name. The judge denied the motion. The incident reverberated for days. Seale was aware of the judge’s arbitrariness in this matter.
With a manner of action that was dainty, abrupt, and arrogant, Judge Hoffman brought a brisk thrill of contest into the courtroom. The white defendants understood his warning and rose along with Bobby Seale the next time. They had established that they would act differently from the way their lawyers acted.
Seale always sat somehow apart from the other defendants and their lawyers at the defense table, absorbed in whatever he was doing. During the melodramatic reading of the indictment, he sat with his hand shading his eyes, as if trying to concentrate on something. He was ill, with a low fever. Judge Hoffman—supported by a panel of judges in the Seventh U.S. Circuit Court of Appeals—had refused to grant a continuance of the trial for six weeks so that Charles Garry could be present as chief trial counsel for the defense in general and counsel for Bobby Seale in particular. Garry’s doctor had told him that his life might depend upon having a gallbladder operation now, and he could not wait for the end of yet another trial. Seale sat at the defense table among defendants and lawyers he’d never met, without the lawyer he trusted and admired. Garry had successfully defended Panthers in difficult cases in California. Garry was known to be wise and abrasive as a trial lawyer, and the defendants were anxious for him to be their chief counsel. At the arraignment in April, Judge Hoffman had found himself exercised emotionally and intellectually by a lawyer in a way in which he was not accustomed. That lawyer was Garry. All of the defendants wanted and expected to have Garry as their chief trial counsel.
In Cook County jail Seale had to get up at about five every morning to begin, along with Jerry Rubin, the tiresome process of being taken to the Federal Building and to the lockup on the twenty-fourth floor above Judge Hoffman’s courtroom. His day was half over by the time court proceedings began.
He listened to incidents during jury selection that were not reassuring to him as a black man. When Judge Hoffman asked veniremen to stand up if they felt they could not be impartial, a black man asked to be excused because his wife had once worked for Thomas Foran. “In what capacity did your wife work for Mr. Foran?” the judge asked. “In domestic service?” The hiss from several persons in the courtroom confused the I judge. Prosecutor Foran, however, saw the stigma about to be stuck on the government and rose promptly to say that he remembered Mr. Miller’s wife well. Foran spoke of her excellent work as a legal secretary and got a wave of positive sympathy from the audience.
The government exercised one of its peremptory challenges to bump from the jury an unemployed black man. He was an electrician which meant that he was “intelligent,” he was black, he was male, and he was “unemployed,” all of which meant that if not on the verge of rage and revolution he might nevertheless be expected to see too much sense in the speech of the defendants in general and Bobby Seale in particular. The government also challenged peremptorily a young chemist just graduated from the University of Illinois who might also have seen sense where angels feared to find substance in the defense’s case. But middle-aged black women, who might well have spent their lives being frightened of aggressive “lightning rod’ black men such as Bobby Seale, stayed on the jury. Judge Hoffman did not ask the questions about familiarity with the Black Panther party that were requested by the defense.
When a large black woman said that she had been a cook, Judge Hoffman said, “We don’t like to see good cooks retire. Do you work for a private family or a restaurant?“ His tone suggested his surroundings in his apartment in the Drake Towers. She said that her son worked for the Playboy Club, and Judge Hoffman responded brightly, “Notice any difference in him?” Bobby Seale heard the prospective jurors laugh readily at the judge’s jokes.
When a man said that he had been a painter, Judge Hoffman said, “Painter? Not a painter like Picasso? You paint walls, right?” When another fellow said that he used to work for a bowling alley, the judge said with snippy vowels and lifted eyebrows, “Automatic pinsetter put you out of work?” The automatic pinsetter was the main basis for the success of Brunswick Corporation, from which came most of the judge’s personal fortune through his wife.
From courtroom to lockup, from lockup to escorted van, from van to the tank at the jail, Seale began writing the motion that he would read the next day.
The other defendants were not entirely enthusiastic when Seale showed them the motion in their conference prior to the next day’s proceedings. They thought the judge was playing right into the script that they were writing, and now Seale was starting another trial within the trial. The other defendants were also worried that Seale’s firing of the lawyers and the remarks about the judge’s actions being “prejudicial to all of the defendants and myself’ might be construed to mean that they were all “splitting,“ and the judge would revoke their bail. Seale was reported to have talked by phone to Garry the night before.
Seale was fastidious, even haughty, nervous, ready. Only John Froines rose with Bobby Seale this day, September 26, and Judge Hoffman both noted and warned the defendants who did not rise. Before even the summary presentations were made by the two sides to the jury, Bobby Seale, to the surprise of most persons present in the courtroom, strode to the lectern.
The courtroom, already terrorized by the judge’s abrupt rulings, was also surprised that a sudden access of toleration possessed the judge huddled up there on the bench. If Garry could not be his lawyer, Seale wanted to defend himself. “If I am consistently denied this right of legal defense counsel of my choice, who is effective, by the judge of this court, then I can only see the judge as a blatant racist of the United States court.”
The judge reacted violently, “Just a minute, just a minute. What’s that? Read that. Watch what you say, sir.” He argued with Seale, and Seale reiterated his basic statement before going back to his seat.
Kunstler tried to speak in support of Seale.
“Watch your language, Mr. Kunstler. I will remind you every time.“ The judge said that he had Kunstler’s signed appearance for Seale.
Kunstler said that he had signed an appearance for Seale on September 24 only to be able to visit him in jail. Now Seale had fired him, and he would file a withdrawal of that appearance. Kunstler would be asked many times why he signed that appearance. On it, Judge Hoffman based his entire contention that Seale was represented by effective counsel of his choice, and after a trial begins it is “absolutely discretionary” for the trial judge to permit a lawyer to withdraw.
But the poisoned dart of that “blatant racist” remark made Judge Hoffman declare at this moment to the court that the first desegregation case in a northern state, the South Holland school case, had been tried and won in his courtroom. He mentioned the editorials in newspapers that praised the wisdom and liberality of his decision, but he did not mention the phone calls and letters that decried it. He did not mention that he occasionally said as a bit of a joke, “I only ruled that little boys and girls could go to school together not that white women should marry black men.”
Prosecutor Thomas Foran argued against Seale’s motion with punch-punch emphases. Judge Hoffman denied Seale’s motion. “What about my constitutional rights, Judge?”
“You have a very able lawyer to speak for you,” Judge Hoffman said, and would often say, to Seale.
He would now try to hold four of the pretrial lawyers hostage in one of the most extraordinary strong-arming attempts by him or any other judge, to get the defendants to give equal consent to being represented by any other lawyers they had designated, and thereby justify his denial of a continuance for Charles Garry. Kunstler said, “Your honor, I’ve never been in a trial where two of the counsel have been in custody.”
Defendant Thomas Hayden greeted the entering jury with a fist salute. Richard Schultz called the incident to the attention of the judge who sent the jury out and admonished Hayden for “shaking his fist” at the jury. “It is my customary greeting, your honor.“
In his opening statement, Richard Schultz mentioned Abbie Hoffman, and Abbie Hoffman stood up and blew the jury a kiss. The judge said, “The jury is directed to disregard the kiss from Mr. Hoffman.” Many laughed and even jurors suppressed smiles.
With Huey P. Newton, Seale hawked Red Books, the sayings of Mao Tse-Tung, to white radicals on the Berkeley campus in order to make money for a couple of shotguns for the Panther party’s program for self-defense in the black community in Oakland. Now he sat without a sign of such humor, occasionally writing on paper before him.
Schultz mentioned Seale’s name, and Sede lifted his hand in greeting to the jury. “Mr. Seale made this speech,” Schultz said to the jurors, “telling people to pick up guns, .357 Magnums, shotguns, pistols, and go out and riot.” Schultz held onto both sides of the lectern with both stiff arms and hunched earnestly toward the jury. “Mr. Seale is a very effective speaker. He’s very effective.” Rigidly and routinely Schultz nailed emphases in odd syntactical positions.
The jurors, often excused, knew little or nothing about the judge’s attempts to jail the four pretrial lawyers. But they did know that only the day before Judge Hoffman had emphasized that “we are methodical here, we keep regular hours.” Kunstler, when the judge indicated he should start his presentation to the jury, pointed out that it was 12:30, time for lunch break. Judge Hoffman said angrily that he would “watch the clock,” he would “do the driving.” Stomachs were growling audibly all over the courtroom, and I was so hungry I hardly knew whether I wanted to laugh or cry and it was difficult to concentrate on what Kunstler was saying. Then Judge Hoffman signed an order holding two of the pretrial lawyers in contempt in San Francisco. He was fulfilling a function of terror, managing a situation by exhausting its emotional energy.
Long-haired, serious of manner, Leonard Weinglass dared to tell the jurors that the defense considered them to be “the highest authority.” There is a tradition in both English and American trial history that supports this view, particularly in trials concerning religious and political beliefs. The judge brusquely excused the jury and admonished Weinglass for his “contumacious conduct.”
When Weinglass finished his presentation under the judge’s unkind eye, Bobby Seale walked toward the lectern. “Just a minute, sir,” the judge said. “Who is your attorney?”
“Charles R. Garry,” Seale said, looking uncertainly from side to side.
Prosecutor Foran was already on his feet and asked that the jury be excused, and the judge complied.
Seale said, “Can’t a man defend himself?”
Judge Hoffman said that he would permit Kunstler to make another statement on Seale’s behalf. Kunstler said that he had been fired and he could not compromise Seale’s position. Judge Hoffman got Kunstler to admit again that he had filed an appearance for Seale. Then the judge said that he could not permit Seale to make an opening statement “with his very competent lawyer seated there.”
Mingling in the crowd of excited people in the hallways, the white defendants laughed at and scorned the judge for being old and irascible, while Seale understood from the beginning that the trial was really and seriously happening.
The government’s first witness was Raymond Simon, Corporation Counsel for the city of Chicago. He testified largely to conversations about permits for assemblies in streets and parks during the Democratic convention. When Judge Hoffman was accused by the defense of favoring the government, he said that if all the defense’s objections were bad, he had to call them that way. But law professor Jon Waltz, who had spoken and written well of this “tough, crusty little judge,” now said that he “caught only one good evidenciary ruling all afternoon.” He said that he had “never heard the like about the jailing of the lawyers,” and that the way in which the jury was selected without any questions about familiarity with the case almost certainly constituted, given recent rulings by the Supreme Court, “reversible error.” But you could see that the stricken professor feared that the contagion of irrationality might already have infected the higher courts.
“I commit them without bail. I deny the motion,” Judge Hoffman said, throwing his hands in the air. Attorney Thomas Sullivan, who would years later become U.S. Attorney for the Northern District, was representing the four pretrial lawyers, two of whom, Michael Tigar and Gerald Lefcourt, were standing with him before the judge. Judge Hoffman’s first contempt order had not been denied by the Court of Appeals, and he was filled with assertive ebullience. He said that he was known not to be a “bargainer” and then he said outright, “You can give them the keys to the county jail, Mr. Kunstler.”
“Your honor is asking us to accept losing our sixth amendment rights,” Kunstler said. The judge was also forcing Irving Birnbaum, Chicago counsel for the defense, to stay at the defense table as a trial lawyer—and lose his daily business for weeks—or be found in contempt and go to jail. Bobby Seale nodded and gestured broadly when he heard how the judge intended to clean up the record on Charles Gany and force the acceptance of Kunstler and Weinglass as sole attorneys for the defense. Tom Sullivan wailed, “Are they to stay in jail for the rest of their lives, your honor?”
“I’m not going to let these men play horse with the court!” Judge Hoffman said, adjourning the proceedings. “You’ve heard of nothing new under the sun; well, there it is,” Sullivan said, as he ran upstairs to the higher court trying to get bail before the court closed. He succeeded in arguing his emergency motion over the phone to Judge Cummings, and the lawyers did not go to jail over the weekend.
By Monday morning the consternation about the attempt to jail the pretrial lawyers was nationwide. Judge Hoffman’s contempt orders for lawyers Roberts and Kennedy were vacated by a federal court in San Francisco because they did not state an offense. It was Thomas Foran who, in conversation with Sullivan and the other attorneys for the defense, relented. This raises the whole question of the extent of the collusion between the prosecutor and the judge. The judge denied, in the face of the transcript and the memory of persons present, that he did not give Sullivan a chance on Friday to assure him that he would produce the lawyers on Monday so the lawyers would not have to go to jail over the weekend. Foran suggested in open court that the judge “might give consideration to letting these men withdraw.” Judge Hoffman vacated his orders, but struck back sarcastically at requests for apology. The problem of Garry remained moot.
Seale was not certain of the course of his action now.
Now came the trauma of the trial. The jurors commuted every morning. On Monday of the second week of the trial, Kristi King and Ruth Peterson received in their family mail letters scrawled in black felt pen—“You Are Being Watched,” signed, “The Black Panthers.” The letters were mailed in the same place with the same kind of stamp and the same cancelation. In the judge’s chambers with the lawyers and the prosecutors, and later in the courtroom itself, Seale scorned the notion that the letters were sent by members of the Panther party. He said that in the conference in the judge’s chambers he felt that Foran and Schultz knew about the origin of the letters. When the defense showed Xerox copies to the press, the judge professed to be disturbed by their public action.
Seale stayed apart from the other defendants and their lawyers as they discussed what had happened. The white marshal assigned to Seale, a southerner by speech, sitting on the bench behind the prosecutors, noticed something and came up and leaned down to speak in Seale’s ear. Seale laughed in response, and the marshal laughed too. Seale continued writing answers to questions passed him from press and spectators.
First, the entire jury was sequestered on the excuse of these letters, every bit of the jurors’ lives to be watched over by marshals for the next five months. Then the next day Judge Hoffman interviewed these two jurors apart from the others, on a motion of the defense to determine if the letters had prejudiced them. When the letter was handed to the young, bemused Kristi King, she said that she had not seen it before. It turned out that her parents had intercepted the letter in the family mail and sent it faithfully to the FBI. There was insucked breath of suspense throughout the courtroom. But Judge Hoffman plunged onward with his questions before anyone could say him nay, and revealed to her that the letter she was holding had been sent to her. It gave her no time to think about the situation. “Having seen it,” the judge said, “can you now be fair and impartial?” Almost crying, she stared at Bobby Seale, who sat silently looking at her. She said she could no longer be fair and impartial. She was excused from the jury.
Seale hardly needed any further suggestion that the letters were, as he contended, sent to prejudice the jury against him. The press gasped and hissed when Richard Schultz explained to the court how it was that Kristi King had not known about the letter. Kunstler countered that the FBI must have known that the girl did not know.
Ruth Peterson, who admitted that she had not only received but read the same letter, declared when interviewed by the judge that she could still be impartial. She was allowed on her own word to stay on the jury. She had even shown the letter to her roommate, Mildred Burns—a plain violation of the judge’s daily charge not to discuss the trial in any way. Mrs. Burns too declared, when interviewed by the judge, that she could still be impartial. Now the first alternate Miss Kay Richards was welcomed by the judge onto the jury proper.
The defendants explained it all, looking darkly through their “youth fare” rhetoric, by saying that the government sent the letters to bump the one young juror because, with Kay Richards as the first alternate, there was always the chance that some juror would get sick in the course of a long trial and that would mean two young people on the jury, and two might hold out for acquittal. It was also a heaven-sent reason for sequestering the jury, said the defendants. Traditionally, sequestered juries vent their anger on the available targets, the defendants.
The jury was sequestered at the original suggestion of the
prosecution on the motion of Judge Hoffman over the objection
of the defense. Judge Hoffman was not without imagination,
and not without the willingness to experiment with
precedent, and this jury would be sequestered as no other jury
before it—totally removed from any media or information that
might cause them to think about “dissent,” in a sort of contemporary
Magic Mountain incarceration within one of Chicago’s
most well-appointed hotels, the Palmer House.