The Trial of Chicago Seven - True Story behind the Headlines (Including the Transcript of the Trial)

U.S. Court of Appeals for the Seventh Circuit, decision on the defendants’ appeal of the criminal convictions, November 21, 1972

The U.S. Court of Appeals for the Seventh Circuit reversed the criminal convictions of the five defendants and remanded the cases for retrial at the government’s discretion. In the opinion written by Judge Thomas Fairchild, the court of appeals addressed the defendants’ arguments in favor of various grounds for reversal, including the constitutionality of the Anti-Riot Act, the composition of the grand jury and the selection of the petit jury, the trial judge’s rulings on the admissibility of evidence and testimony of witnesses, the undisclosed communications between the judge and the jury, and the demeanor of the judge and the prosecuting attorneys. The court by a vote of 2-1 upheld the constitutionality of the Anti-Riot Act, but it found other grounds for reversal.

[Document Source: United States v. Dellinger, 472 F.2d 340 (1972).]

Constitutionality of the Anti-Riot Act

The first amendment is premised upon the value of unfettered speech. Constitutional protection is clearly not to be limited, therefore, to mild or innocuous presentation, and it is unrewarding to search for a formula describing punishable advocacy of violence in terms of fervor or vigor. The real question is whether particular speech is intended to and has such capacity to propel action that it is reasonable to treat such speech as action.

The test for the attributes which speech in favor of violent action must achieve before it may be classified as action and thus removed from first amendment protection has been variously phrased—clear and present danger—directed to inciting and likely to incite imminent lawless action—whether the harm sought by expression is immediate and instantaneous and irremediable except by punishing the expression and thereby preventing the conduct—whether the expression is inseparably locked with action.

Our question, in examining the validity of the Anti-riot Act on its face is whether, properly construed, it punishes speech only when a sufficiently close relationship between such speech and violent action is found to exist. Semantically the cases suggest that while a statutory prohibition of advocacy of violence is overbroad, since protected speech is included within advocacy, a prohibition of intentional incitement of violence is not overbroad. The latter depends upon a construction of “incitement” which is sufficiently likely to propel the violent action to be identified with action. . . . It seems to us that the threshold definition of all categories as “urging or instigating” puts a sufficient gloss of propulsion on the expression described that it can be carved away from the comprehensive protection of the first amendment’s guarantee of freedom of speech.

Jury Selection

In evaluating this topic, it is important to recall the time when this trial occurred, and to recognize that the division in public attitudes toward the Vietnam war has changed and is changing still. The extent of unpopularity of the war in 1972, when this opinion is written, is not a fair index of the probable opinions on that subject in a cross section selected in September, 1969. Perspective is important. These defendants’ plans for activities in Chicago in August, 1968 were first formed when President Johnson was expected to be a candidate to succeed himself. He withdrew March 31, 1968. The 1968 candidacies of Senators Eugene McCarthy and Robert Kennedy, the latter assassinated in June, 1968, were associated with anti-war sentiment. Further crystallization of anti-war sentiment is associated with the Cambodian venture and the Kent State killings, both in the spring of 1970. These episodes had not yet occurred when the jury was selected for this trial in September, 1969. We have no doubt that defendants brought to trial in 1969 upon charges that their anti-war activities were carried beyond constitutional protection were entitled to a testing of their jurors for biased attitudes on this subject.

Perhaps secondary, but significant, were the conflicts of values represented by the so-called youth culture—hippies, yippies and freaks—in contrast with the more traditional values of the vast majority of the community, presumably including most citizens summoned for jury service. Again, we are not unaware that many otherwise qualified members of the community could not be impartial toward, and in fact are often offended by, persons who wear long hair, beards, and bizarre clothing and who seem to avoid the burdens and responsibilities of regular employment. Several defendants would exemplify this conflict.

A similar conflict of values was symbolized in the confrontation between the city police and the demonstrators. A juror’s basic sympathies with the actors in these events could easily impair his ability to consider alternative views of the case as presented in court. A venireman’s relationship with law enforcement officers would be an important factor to be inquired about in evaluating his ability to be an impartial juror.

In our view, some minimal inquiry into at least these three basic areas was essential to a fair trial of this extraordinary case, at least when defendants requested such inquiry. . . .

These cases demonstrate the danger that widespread publicity about highly dramatic events will render prospective jurors incapable of impartial consideration of the evidence. We think it must follow that where pretrial publicity is of a character and extent to raise a real probability that veniremen have heard and formed opinions about the events relevant to a case, and at least where, as here, the defense has brought the pretrial publicity to the court’s attention and requested voir dire inquiry, the court must make inquiry adequate to determine whether anyone has read or heard about the facts, and, if so, what the impact has been on his ability to serve as an impartial juror.

Demeanor of the Judge and Prosecutors

The district judge’s deprecatory and often antagonistic attitude toward the defense is evident in the record from the very beginning. It appears in remarks and actions both in the presence and absence of the jury.

The defense presented an extensive case, calling more than 100 witnesses. The judge might, within reason, have alleviated some of the difficulties defense counsel encountered, but he did not do so.

There are a number of areas in the law of evidence in which lawyers and judges differ considerably in interpretation of the rules and where the application of a rule is really governed by the discretion or individual views of the trial judge. When a question is leading; when testimony that another person made a statement is admissible because the making of the statement is relevant, even though the statement also contains assertions of fact; when a question on cross-examination is outside the scope of the direct; when a question is objectionable because repetitive—are all examples of such areas. We shall not attempt the task of reviewing all the rulings on evidence in this case. It does appear, however, that in comparable situations, the judge was more likely to exercise his discretion against the defense than against the government.

Most significant, however, were remarks in the presence of the jury, deprecatory of defense counsel and their case. These comments were often touched with sarcasm, implying rather than saying outright that defense counsel was inept, bumptious, or untrustworthy, or that his case lacked merit. Sometimes the comment was not associated with any ruling in ordinary course; sometimes gratuitously added to an otherwise proper ruling; nearly always unnecessary. Taken individually any one was not very significant and might be disregarded as a harmless attempt at humor. But cumulatively, they must have telegraphed to the jury the judge’s contempt for the defense. . . .

In final argument, the United States Attorney went at least up to, and probably beyond, the outermost boundary of permissible inferences from the evidence in his characterizations of defendants. He referred to them as “evil men,” “liars and obscene haters,”“profligate extremists,” and “violent anarchists.” He suggested one defendant was doing well as it got dark because “predators always operate better when it gets close to dark.”

He yielded to the temptation to exploit the courtroom conduct of various defendants which formed the basis of the contempt citations in In re Dellinger. He told the jurors they need not ignore “how those people look and act,” “outbursts in the courtroom,” “the sudden respect, the sudden decency” occurring “in the last few days as we reach the end of the case,” the suggested similarity between the technique the jurors had seen used in the courtroom with the marshals and that allegedly used at the time of the convention with the police.

Dress, personal appearance, and conduct at trial were not probative of guilt. The district judge properly instructed the jurors that they “must not in any way be influenced by any possible antagonism you may have toward the defendants or any of them, their dress, hair styles, speech, reputation, courtroom demeanor or quality, personal philosophy or life style.” The United States Attorney should not have urged the jury to consider those things.

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