LITMIR.BIZ

      Appeals

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      The defendants and their attorneys appealed to the U.S. Court of Appeals for the Seventh Circuit for a reversal of the criminal convictions and the contempt citations. They argued that the anti-riot provisions of the Civil Rights Act were unconstitutional, that Judge Hoffman’s prejudice against the defendants made a fair trial impossible, that they had been denied the right to present a full defense and that they had been denied the right to an impartial jury. They argued that the judge should not have waited until the end of the trial to issue contempt orders and that the conduct cited did not legally constitute contempt. They also argued that the excessive sentences for contempt violated the requirement for a jury trial in any proceeding resulting in greater than six months imprisonment.

      On November 21, 1972, an appeals court panel of Judges Thomas E. Fairchild, Wilbur J. Pell, and Walter J. Cummings unanimously overturned the defendants’ criminal convictions. The court of appeals found that Judge Hoffman had erred in not asking potential jurors about political and cultural attitudes or about exposure to pretrial publicity, that he had improperly excluded evidence and testimony, and that his failure to notify the defense of his communications with the jury was ground for reversal. In unsparing language, the court of appeals censured Judge Hoffman and the government attorneys for their open hostility toward the defendants and their failure to fulfill “the standards of our system of justice.” Their demeanor alone, the court concluded, was sufficient reason to reverse the conviction. The reversal left open the government’s option of retrying each of the defendants individually, and the court of appeals reviewed the evidence that it believed a jury might find sufficient for conviction. In January 1973, the U.S. Department of Justice announced that it would not pursue any further prosecution. Only Judge Pell found the Anti-Riot Act to be unconstitutional, so that statute stood.

      On May 11, 1972, in a separate proceeding, the same panel of judges on the court of appeals had declared some of the contempt charges against the lawyers to be legally insufficient, and the court reversed all other contempt convictions, which were remanded for retrial before another judge. Judge Edward T. Gignoux, of the U.S. District Court for Maine, was assigned by Chief Justice Warren Burger to preside at the retrial that began in October 1973. The government reduced the number of contempt charges and thereby avoided the requirement of the court of appeals that any defendant subject to more than six months’ imprisonment be tried before a jury. Gignoux convicted Dellinger, Hoffman, Rubin, and Kunstler of a total of thirteen contempt charges, but the judge rejected the U.S. attorney’s argument that “substantial jail sentences” were necessary to protect the judicial process and deter others of such misbehavior. Gignoux thought that the behavior of the defendants and their lawyers could not be considered “apart from the conduct of the trial judge and prosecutors. Each reacted to provocation by the other, and the tensions generated during four and a half months of so acrimonious a trial cannot be ignored.” He was satisfied that the judgment alone preserved the integrity of the trial process.