Conspiracy & Due Process
The Trial of Dr. Spock.
by Jessica Mitford.
Knopf. 266 pp. $5.95.
In retrospect—after, that is, the Chicago explosion of 1968, after campus upheavals and ghetto convulsions—the acts which led to the trial and conviction of Dr. Benjamin Spock and his fellow “conspirators” by a Boston Federal District Court, in June of 1968, appear rather tame. One may grant the importance of the principles involved and the sincerity and personal heroism of the defendants; still, one looks back to that time (1967) when their acts were committed as a kind of age of innocence, when radical action took the form of leading (peaceful) demonstrations protesting the Vietnam war, or issuing precisely-worded manifestos in support of draft re-resistance—all very gentlemanlike, low-keyed, soft-spoken. No spilling of cow's blood on draft files; no strong-arming of bewildered professors. Even Miss Mitford admits as much: “The events around which the trial revolved . . . seemed ancient history. . . . By the time of the trial, the Boston courtroom seemed a backwater.” Moreover, subsequent developments have removed the sting from the case altogether. On July 11, 1969 the Federal Court of Appeals in Boston reversed the convictions of Dr. Spock and Harvard graduate student Michael Ferber for conspiring to interfere with the draft law and ordered a new trial for two other defendants, Rev. William Sloane Coffin of Yale and novelist Mitchell Goodman. (The fifth defendant, Marcus Raskin, had been acquitted in the original trial.) In August, the government announced it would not appeal the decisions with regard to Spock and Ferber; and any new retrial of Goodman and Coffin seems unlikely. So—what was l'affaire Spock, Coffin, et al. all about? What indeed ever prompted the government to prosecute in the first place?
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Miss Mitford, whose research here seems every bit as careful and provocative as in her previous book, The American Way of Death, offers the following explanation: Shortly after the October 1967 march on the Pentagon, General Lewis Hershey sent a directive to draft boards across the country advising them to reclassify as 1-A all registrants who took part in “illegal demonstrations” and to induct them immediately. University presidents, civil-liberties groups, even Abe Fortas took loud and public objection to the Hershey order, and the Justice Department then began to look for “a graceful way” to have the new directive revoked. As a quid pro quo, Attorney General Ramsey Clark agreed to set up a special prosecution unit to speed up indictments of draft resisters and those who counseled, aided, or abetted them, to wit, the older group of intellectuals leading the anti-war demonstrations. Hershey, a political pro with enormous influence in Congress, never even pretended to fill his part of the bargain and never rescinded his directive. (A federal court in the District of Columbia recently declared it illegal.) But Clark immediately ordered his people to bring indictments against the Spock group.
How to explain this shabby episode? Perhaps it can be attributed to the general deterioration that affected even the best members of the Johnson administration in its waning days. Clark must certainly be considered one of the most liberal Attorneys General of this century; yet, as a gesture to the Right and in an effort to gain concessions, he was willing to initiate one of the more questionable civil-liberties cases of our time. But justice, of a sort, was served, too, and Clark received no quid for his quo. The right wing continued to attack him for his “softness” on crime and Hershey—up until his recent forced retirement at least—continued to run the Selective Service system in his usual magisterial way. One gratifying postscript: Clark evidently learned his lesson from this experience and refused to bring any indictments against the Chicago demonstrators. It was up to the Nixon administration, and particularly John Mitchell, to start that ball rolling.
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Miss Mitford's account of the trial belongs in that small and select company of lay books about the law (Anthony Lewis's Gideon's Trumpet is another example) which illuminate more about the legal process than the learned tomes of judges and lawyers. For the present work she interviewed all the defendants, their relatives and friends, every lawyer involved, the Justice Department prosecutors, General Hershey, and three of the jurors who heard the case. She attended every court proceeding, sitting in a special chair by the courtroom door reserved for her by considerate U.S. marshals, writing everything down in her notebook, buttonholing lawyers during recess. All this industry has been put to good use. Miss Mitford, as everybody knows, is a witty writer, and her descriptions of the dramatis personae are particularly entertaining. She sizes up, with just the right phrases, Dr. Spock's geniality, Rev. Coffin's bounce, Michael Ferber's idealism, old Judge Ford's harrumphing. And what little overt drama there was in that long, repetitious five-week trial—the verbal sparring between the defendants and prosecutor John Wall, the judge's openly expressed hostility—is brilliantly distilled.
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But the book, of course, deals in more than clever description. It seeks to come to grips with what was, after all, the legal heart of the trial, the tricky issue of conspiracy. For the five defendants were accused of conspiring to counsel registrants under the draft law to evade service and to refuse to keep their draft cards in their possession, and generally to interfere with the administration of the draft. The acts which formed the basis of the prosecution included the preparation and signing of a manifesto protesting the Vietnam war (“A Call to Resist Illegitimate Authority”); the holding of press conferences to publicize opposition to American policy; participation in anti-war demonstrations; and presence at rallies where draft cards were turned in. The defendants were not accused of any substantive crime—actually counseling young men not to register or to be inducted—but of conspiring to do so. Thus under traditional legal rules regarding conspiracy, the government could introduce a wide range of evidence, such as statements by alleged co-conspirators, which would otherwise not be admissible; and the prosecution did not have to show that the defendants succeeded in persuading a single young man to turn in his draft card.
The gravamen of the crime of conspiracy is an agreement to perform an illegal act, whether subsequently accomplished or not, and agreement can be proved by demonstrating parallel conduct toward an illegal goal. Thus the government tried to show that the defendants encouraged each other in voicing opposition to the war and supporting draft resisters. Even applauding their friends' remarks at public rallies became evidence of an illegal conspiracy. Miss Mitford comments: “At the Spock trial, the government's message came over loud and clear: You are not as free as you think you are. Yes, of course you may sign a peace petition, you may have your name on a newspaper advertisement supporting draft resisters. . . . However, if you do these things, you will be ‘kept under surveillance by the FBI’ . . . and should it happen to suit the government's purpose, you will then be prosecuted, and the petition, the advertisement, the mass meeting, and your applause will be solemnly paraded before the jury as evidence against you.” Miss Mitford is not stretching a point. In March 1969, eight of the leaders of the Chicago demonstrations were indicted for conspiring to violate the anti-riot provisions of the Civil Rights Act of 1968. The government charged that “it was a part of said conspiracy that . . . the defendants . . . would organize and attend various meetings, would publish and cause to be published articles, and would make and cause to be made long distance telephone calls for the purpose of encouraging persons to come to Chicago . . . to participate in massive demonstrations. . . .” Not since the worst days of the Palmer raids and the wholesale indictment of opponents to World War I has such activity been the basis of a federal prosecution.
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An appalling state of affairs. And yet . . . though one's liberal sympathies tend automatically to incline toward Miss Mitford's reading of the trial, there is, ultimately, a shade of naiveté about her analysis. Like many others, she was offended by the use of a conspiracy charge against the defendants—the vagueness of the proof and the wide latitude given the prosecution shocked her—but she fails to see the obverse side of the coin. Shortly after Daniel Lang's article on the trial appeared in the New Yorker—it also attacked the conspiracy theory—I had occasion to talk to a Justice Department official in charge of draft cases. “What's the matter with these people?” he said. “They never complain when we indict Ku Klux Klan people for conspiracy under the Civil Rights Act.” So again it is the old matter of whose ox has been gored, and while Miss Mitford's sympathies are as valid as yours and mine, one would have hoped that, good as she is, she might have been better in guiding us through the conspiracy thicket. (In her defense, one might note that the use of a conspiracy charge in political trials, where overt acts may be expressions of free speech, raises problems of special difficulty for expert and informed layman alike.)
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Miss Mitford, furthermore, sees the particular difficulties of the Spock trial as endemic to all political trials—and they are not. In her view, due process is impossible when the government tries to silence its opponents in court. The prosecution, the judge, the jury, the public itself become deaf to the demands of fairness when basic governmental policies are brought before the courts, and justice yields to the requirements of politics. Miss Mitford writes: “. . . does not the demand for fair trial and due process in political cases simply perpetuate the myth—should not the demand rather be, in the public interest, an end to political trials?” But she undercuts her own case when she tells us that even the conservative Boston jury that heard the Spock case showed some sympathy for the defendants and their politics. The acquittal of Raskin, she writes, may have been the result of “a tacit desire of the jury to assert its independence, to vote, in some token way, its conscience.” Perhaps, she suggests, that spark could be “fanned into a flame” if the jury were given greater leeway to acquit no matter how the judge charged or the law required. Thus she seems to conclude that the key problem of a political trial relates only to the judge's charge. But this is hardly sufficient reason for condemning all such proceedings: juries who feel strongly enough about a case will ignore whatever the judge tells them. And, more important, political trials are not always initiated by the government. Often political opponents or oppressed minorities precipitate judicial tests of a governmental policy.
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Dr. Spock and his fellow defendants tried to bring the political issues of the Vietnam war and the draft before the courts and virtually demanded that the government indict them so that a test case on these points might be heard. But the presiding judge, eighty-five-year-old Francis Ford, foiled that attempt and refused to deal with those larger matters. The court only passed on the defendants right to voice their opposition to the war; the sole issue was whether their demonstrations and manifestoes went beyond the permissible limits of free speech. And finally, on appeal, they won the only case that the government would allow them.
By almost any standard the defendants' final victory was significant. Despite the qualifications made by the appeals court, the decision seriously restricts the government in trying to suppress dissent against the war. It is a distinct barrier to the Chicago indictments. Whatever temporary advantage the government gained by bringing the cases originally, whatever chilling effect the indictments may have first brought about, have been more than offset by the appellate decision.
In any political trial the government may find itself on the losing end, and the new legal rules established can open up important avenues for the opposition. The trial of John Lilburne in 1649 established the right against self-incrimination in common-law jurisdictions. John Wilkes's successful defense of his right to a seat in Parliament was a milestone of political freedom. The writs of assistance cases in the American colonies crystallized American opposition to British rule. The Test Oath cases after the Civil War, the Jehovah's Witnesses cases in the 1930's and 1940's, and the sit-in cases of the 1960's were all political trials instigated by minorities challenging a governmental policy of repression. In each instance the defendants won. The Spock trial does not belong to that variety of cases (Sacco-Vanzetti, Alger Hiss, the Rosenbergs) where defendants are accused of non-political crimes and convicted because of the political climate of the times. The Spock victory fits into an older tradition: that in which the courts, the most undemocratic branch of the government, succeed in keeping the democratic channels open.
