The Trial of the Chicago 7: History, Legacy and Trial Transcript - Bruce A. Ragsdale

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the act required a sufficiently close relationship between speech and action that demonstrated intent to incite a riot. The act’s requirement of “an overt act” in support of inciting a riot was enough to prevent the act from suppressing or “chilling” speech protected by the Constitution.

      Judge Wilbur Pell dissented from the majority opinion, and wrote that the Anti-Riot Act was an unconstitutional restriction on free speech. Pell, a recent Nixon appointee, found that the act did not distinguish between speech that advocated violence and speech that was directly related to the incitement of violence. The advocacy of “an idea or expression of belief” could not be limited under the Constitution.

      In the fall of 1968, lawyers for the National Mobilization Committee had challenged the constitutionality of the Anti-Riot Act in their suit asking for a court order to halt the grand jury inquiry into the demonstrations. On November 1, 1968, Judge Abraham Marovitz of the district court for the Northern District of Illinois dismissed the suit, and the U.S. Court of Appeals for the Seventh Circuit agreed that the challenge to the statute did not raise sufficient constitutional questions.

      5. Were the defendants and their attorneys guilty of criminal contempt?

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      Judge Hoffman convicted the seven defendants and their two attorneys of 157 counts of criminal contempt. The U.S. Court of Appeals for the Seventh Circuit dismissed some of the charges against the attorneys and reversed all other convictions, which the appellate court sent back to the district court for retrial before a different judge. In the new trial, Judge Edward Gignoux found three of the defendants and one of their attorneys guilty of a combined total of thirteen contempts.

      The U.S. court of appeals reversed all of the defendants’ contempt convictions and remanded them to the district court for retrial. The court of appeals dismissed some of the contempt convictions of attorneys Kunstler and Weinglass because their actions involved legitimate efforts to defend their clients; the remaining attorney convictions were remanded for new trials. The court of appeals also ruled that any defendant subject to more than six months’ imprisonment on the contempt charges would be entitled to a trial by jury.

      The court of appeals cited recent Supreme Court decisions that restricted a district judge’s authority to issue contempt convictions at the conclusion of a trial if the allegedly contemptuous behavior involved personal insults that would likely create bias in the judge. By the time of the hearings on the Chicago Seven appeals, the government attorneys conceded that the defendants’ convictions should be retried before another judge in the district court, and the government’s decision to drop many of the charges eliminated the need for any jury trials.

      Judge Edward Gignoux presided over the retrial of the fifty-two remaining contempt charges. Gignoux quickly dismissed two charges and acquitted the defendants of twenty-four others, including all of those pending against John Froines and Lee Weiner. Following a trial of more than four weeks, Gignoux’s decision on the remaining specifications rested on the criteria that the court of appeals had prescribed for determining guilt: the contemptuous behavior must have occurred in the court or close enough to obstruct the proceedings; the conduct must have violated the expected behavior in a courtroom; the individual must have intended to disrupt the court proceedings; and the conduct must have resulted in an obstruction of the courtroom.

      Gignoux found David Dellinger guilty of seven contempt charges, most involving repeated insults directed at the judge while the jury was present. Jerry Rubin and Abbie Hoffman were found guilty of two charges each, including their appearance in the courtroom in judicial robes. William Kunstler was guilty of two contempt charges for extended attacks on the judge that resulted in a significant disruption in the courtroom. Gignoux imposed no jail time for any of the contempt convictions.

      6. Did the jury selection process protect the defendants’ right to a fair trial?

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      No. The U.S. Court of Appeals for the Seventh Circuit found that the district judge was in error for failing to ask potential jurors about their exposure to pretrial publicity. The court of appeals also found that the district judge should have asked potential jurors about their attitudes toward the Vietnam War, the counterculture, and the Chicago police.

      The defendants claimed that the “perfunctory” jury selection, completed in one day, did not solicit the information necessary to make reasoned challenges to jurors. Judge Hoffman asked the defense to submit questions for jurors, but he asked jurors only one question from the defense list. The defense submitted many questions about attitudes toward the Vietnam War, student dissent, and hippie culture. The defense also suggested that the judge ask if the potential jurors knew who Janis Joplin and Jimi Hendrix were, if their daughters wore “brassieres all the time,” and if they considered “marihuana habit-forming.” The court of appeals considered some of the defense questions “inappropriate,” but the court also said that public opinion at the time of the trial was so divided over the Vietnam War and the rise of the counterculture that the judge had an obligation to ask jurors about their views. “We do not believe that a prospective juror is so alert to his own prejudices,” that the district court can rely on a general question about the ability to be fair. The defense must be able to ask specific questions about potential prejudices of a juror. The court of appeals decision said that in a case with “widespread publicity about highly dramatic events,” the district judge must ask about the impact of pretrial publicity even if, as in this trial, the defense had not raised the issue during the selection of the jury.

      The court of appeals did not accept the defendants’ other argument that the reliance on voter lists for the selection of grand jury members created a biased grand jury. The court found that the reliance on voter lists underrepresented young people, but that the age imbalance was not so pronounced as to produce a biased grand jury.

      7. Did Judge Hoffman unfairly restrict the defense’s right to submit evidence and call witnesses?

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      Yes. The U.S. court of appeals determined that Judge Hoffman had erred in his decision to exclude certain evidence and witnesses for the defense.

      The defense attorneys asked to submit various documents as evidence of their claim that the defendants had always intended to engage in peaceful demonstrations at the Democratic National Convention. Judge Hoffman excluded these memos and magazine interviews on the grounds that they were self-serving declarations of the defendants. The court of appeals rejected any blanket rule excluding allegedly self-serving evidence. According to the court of appeals, that standard for evidence was rooted in the long-abandoned rule that defendants in criminal trials could not testify on their own behalf. The court of appeals called special attention to the Lake Villa document drafted by Tom Hayden and Rennie Davis for an organizational meeting in March 1968. It was up to the jury, not the judge, to determine if the Lake Villa policy of nonviolence represented the intentions of the organizers.

      The court of appeals also found that Judge Hoffman was wrong to sustain the prosecutors’ objection to all expert witnesses called by the defense. The court of appeals supported a trial judge’s broad discretion in determining the suitability of witnesses, but Hoffman had been mistaken to exclude the witnesses called to testify about crowd control and law enforcement. The court of appeals determined that these witnesses might have helped the jury assess the defense allegation that police had provoked the violence. The court of appeals upheld Judge Hoffman’s decision to exclude expert witnesses who would have testified about racism and social injustice.

      The court of appeals found that Judge Hoffman should have allowed former Attorney General Ramsey Clark to testify before the jury. Clark’s testimony about a phone call to Mayor Daley in support of permits for

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