"Because," the prosecutor said, "I thought the question was relevant."
"I disagree," the judge said, with finality.
I was not able to say anything to the jury. It was clear that the judge was furious at these antimilitary protesters and was determined to send them to prison. They were facing a felony charge, calling for ten years in prison, and a misdemeanor, calling for one year in prison. The prosecutor, obviously not convinced that these defendants were dangerous criminals, perhaps a bit sympathetic to their cause, dropped the felony charge, telling the defendants, confidentially, that he did that because he was sure the judge would give the defendants the full ten year sentence.
The quality of justice in the United States is strained through the sieve of the power and prejudice of judges. Free speech in the courtroom does not exist, because the judge decides what can and cannot be said. In 1980, a New York City judge dropped a case against fifteen people who protested at a research facility for nuclear weapons on the advice of the prosecutor, who told him, "We want to prevent these defendants from using the Criminal Court as a forum for their views."
Judges are, for the most part, creatures of comfort—that is, they come from the affluent classes and tend to be conservative and hostile toward radicals, demonstrators, protesters, and violators of "law and order." They are also creatures of the American environment, subject to the dominant ideology.
But when the national mood changes, when the political atmosphere becomes differently charged, judges may be affected by that. If they then allow juries to hear the reasons why protesters acted, the common sense of juries comes into play. They may vote to acquit the defendants even if they have broken the law. Given the opportunity, when not bullied by judges, juries may choose justice before law.
By 1967 there was a formidable movement all across the country against the war in Vietnam. In Oakland, California, demonstrations that disrupted the normal operations of the Induction Center resulted in the prosecution of the Oakland Seven, charged with conspiracy to trespass, create a public nuisance and resist arrest. The judge permitted the defendants to tell the jury about their belief in the illegality of the war and told the jury they should take that belief into consideration in determining whether there was criminal intent in the defendants' actions. The jury acquitted all of the Seven. One of the jury members said later, "I'm not a puppet. I'm a free thinker."
Jury Nullification
The Camden jury had exercised a right that judges never tell juries about: the right to come to a verdict following their conscience rather than the strict requirements of the law—to choose justice over law.
That right of "jury nullification" goes back to eighteenth-century Britain, when jurors, despite being fined and jailed, refused to convict two Englishmen for speaking to a street crowd. A plaque in the famous Old Bailey courthouse in London commemorates the courage of these jurors and records the final opinion of the Chief Justice, "which established the Right of Juries to give their Verdict according to their conviction."
In America the principle of jury nullification was affirmed in 1735 when John Peter Zenger, a New York printer who was charged with seditious libel for printing material not authorized by the British mayor, was acquitted by a jury that ignored the instructions of the judge. The jury apparently followed the advice of the defense attorney to "see with their own eyes, to hear with their own ears and to make use of their consciences."
The antislavery preacher Theodore Parker, after the passage of the Fugitive Slave Act of 1850, spoke in New England about what he would do if a slave escaped from South Carolina to Massachusetts and "a Mr. Greatheart" helped her to escape, harbored and concealed her, and was then prosecuted, and he, Parker, was on the jury. He declared:
I may take the juror's oath to give a verdict according to the law and the testimony. The law is plain, let us suppose and the testimony conclusive. ... If I have extinguished my manhood by my juror's oath, then I shall do my official business and find Greatheart guilty, and I shall seem to be a true man; but if I value my manhood, I shall answer after my natural duty to love a man and not hate him, to do him justice, not injustice, to allow him the natural rights he has not alienated, and shall say, "Not guilty."
Around the middle of the nineteenth century, however, the courts began to rule that juries did not have the right to decide the law, only the facts, that they had to obey the judge's instructions as to the law. This does not really settle the matter. The jury may not have the right to rule on questions of law, but they don't have to write legal opinions when they give their verdict; they can vote their consciences, regardless of the law explained to them by the judge. A distinguished legal scholar, Wigmore, wrote in 1929 about the importance of jury nullification to achieve justice.
Law and Justice are from time to time inevitably in conflict. That is because law is a general rule;...The jury, in the privacy of its retirement, adjusts the general rule of law to the justice of the particular case...The jury, and the secrecy of the jury room, are the indispensable elements in popular justice.
Another famous legal scholar, Roscoe Pound, had written back in 1910 that "jury lawlessness is the great corrective in legal proceedings.
In other words, the jury must match the defendants' civil disobedience with its own disobedience of law, if, as a matter of conscience, it believes the defendants did the right thing. When it is submissive before the overbearing authority of a judge, it surrenders its own conscience. In the case of Dr. Spock and his other antiwar defendants who were found guilty by the jury, one of the jury members said later, "I was in full agreement with the defendants until we were charged by the judge. That was the kiss of death!"
Another juror in the Spock case, Frank Tarbi, wrote in the Boston Globe about his anguish:
How and why did I find four men guilty? All men of courage and individuals whom I grew to admire as the trial developed...As the father of three teen-aged sons, two eligible for draft, and a veteran myself, my abhorrence of war is understandable...Was I ready to commit my sons?...Rev. Coffin's thought-provoking argument struck home—"Isn't the Cross higher than the flag? Must we not obey God before we obey man?..." The paradox was that I agreed wholeheartedly with these defendants, but...I felt that technically they did break the law...
I departed to the waiting car and then to home. There I was embraced by my loved ones and I began to think and try to explain.... These four men were trying to save my sons whom I love dearly. Yet I found them guilty. To hell with my ulcer. After four or five stiff hookers (I lost count) I began to cry bitterly.
In the case of the Catonsville Nine draft board invaders, the Circuit Court of Appeals, while affirming their convictions, made a remarkable statement in support of jury nullification:
We recognize...the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence.... If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.
Nevertheless, it is always a struggle in the courtroom to get the judge to agree to admit into evidence those things that will allow the jury to vote its conscience. In the period since the Vietnam War, political protesters against the arms race, or against military intervention in Central America, have tried to introduce the defense of "necessity," or "justification." This defense is based on the idea that while a technical violation of law has taken place, it was necessary to prevent a greater harm to the community.
In 1980, the "Plowshares Eight" invaded a General Electric plant in King of Prussia, Pennsylvania, and did some minor damage to nuclear nose cones, as a protest against the arms race. They were charged with trespassing and destroying property. The judge would not allow a necessity defense, and when the jury was out for eight hours, the judge speeded up their decision b
y threatening to sequester them overnight. The jury then came in with a verdict of guilty. Juror Michael de Rosa said later, "I didn't think they really went to commit a crime. They went to protest... We really didn't want to convict them on anything. But we had to because of the way the judge said the only thing you can use is what you get under the law."
When juries have been allowed to hear the evidence of "necessity," the results may be startling. In Burlington, Vermont, in 1984 "The Winooski Forty-four" were arrested for refusing to leave the hallway outside of a senator's office. They were protesting his votes to give arms to the contras across the Nicaraguan border. The judge accepted the defendants' right to a necessity defense. He allowed them to call various expert witnesses: a refugee from Central America, who told the jury about the terror caused by American military intervention; a former leader of the contras, who explained that he had left their ranks after he realized they were organized and financed by the CIA and were committing atrocities against the people of Nicaragua. I testified about the history of civil disobedience in the United States and its usefulness in bringing about healthy social change.
The prosecuting attorney told the jury to disregard all that testimony. He pointed to a large chart on the stand facing the jury—one of the exhibits, which was a map of the senator's offices where the defendants had crowded into the corridor and refused to leave. He said, "The issue is not Nicaragua, not American foreign policy . This is the issue— trespassing."
When he had finished, a woman lawyer for the defendants rose for her summation. She walked over to the chart of the senator's office and folded it back, to reveal something underneath—a large map of Central America. She pointed and said, "This is the issue." They voted to acquit.
At another trial shortly after, in western Massachusetts, a number of people (including activist Abbie Hoffman and Amy Carter, daughter of an ex-president) were charged with blocking recruiters for the Central Intelligence Agency who had shown up at the University of Massachusetts in Amherst. Witnesses were called, including ex-CIA agents who told the jury that the CIA had engaged in illegal and murderous activities all around the world. The jury listened and voted to acquit.
One juror, a hospital worker named Ann Gaffney, said later, "I was not that familiar with the CIA's activities. I was surprised. I was shocked...I was kind of proud of the students." Another juror, Donna Moody, said, "All the expert testimony against the CIA was alarming. It was very educational." The county district attorney himself, Michael Ryan, had this reaction: "If there is a message, it was that this jury was composed of middle America.... Middle America doesn't want the CIA doing what they are doing."
In this case the judge allowed the defense of necessity and gave the green light to the jury in considering human rights more important than a technical violation of law. But the courts will continue to remain barricades against change, stiff upholders of the prevailing order, unless juries defy conservative judges and vote their consciences, commit their own civil disobedience in the courtroom, and ignore the law to achieve justice.
Or perhaps we should say "ignore man-made law, the law of the politicians" to obey the higher law—what Reverend Coffin and Father Berrigan would call "the law of God" and what others might call the law of human rights, the principles of peace, freedom, and justice. (Daniel Berrigan's elderly mother was asked by a reporter, when Dan went underground, how she felt about her son defying the law; she responded quietly, "It's not God's law.")
The truth is so often the total reverse of what has been told us by our culture that we cannot turn our heads far enough around to see it. Surely, it is obedience to governments, in their appeals to patriotism, their calls for war, that is responsible for the terrible violence of our century. The disobedience of conscientious citizens, for the most part nonviolent, has been directed to stopping the violence of war. The psychologist Erich Fromm, thinking about nuclear war, once referred to the biblical Genesis of the human race and the bite into the forbidden apple: "Human history began with an act of disobedience and it is not unlikely that it will be terminated by an act of obedience."
Does Protest Matter?
It is not easy to prove that protest changes policy. But in the case of the Vietnam War, there is powerful evidence. In the government's own top-secret documents, the "Pentagon Papers," we find anxious government memos about "public opinion...increasing pressure to stop the bombing...the breadth and intensity of public unrest and dissatisfaction with the war...especially with young people, the underprivileged, the intelligentsia and the women...a limit beyond which many Americans and much of the world will not permit the United States to go."
And in the spring of 1968, with over half a million troops in Vietnam and General Westmoreland asking President Johnson for 200,000 more, he was advised by a small study group in the Pentagon not to escalate the war further. There would be more U.S. casualties, the group said, more taxes needed. And
The growing disaffection accompanied as it certainly will be, by increased defiance of the draft and growing unrest in the cities because of the belief that we are neglecting domestic problems, runs great risks of provoking a domestic crisis of unprecedented proportions.
Johnson, right after this report, refused Westmoreland's request, announced a limitation on the bombing of North Vietnam, and agreed to go to the peace table in Paris to negotiate with the North Vietnamese.
Even President Nixon, who had said of the growing antiwar activity that "under no circumstance will I be affected whatever by it," confessed in his memoirs, nine years later,
Although publicly I continued to ignore the raging antiwar controversy,...I knew, however, that after all the protests and the Moratorium [the nationwide protests of October 1969], American public opinion would be seriously divided by any military escalation of the war.
Thoreau, Jefferson, and Tolstoy
The great artists and writers of the world, from Sophocles in the fifth century B.C. to Tolstoy in the modern era, have understood the difference between law and justice. They have known that, just as imagination is necessary to go outside the traditional boundaries to find and to create beauty and to touch human sensibility, so it is necessary to go outside the rules and regulations of the state to achieve happiness for oneself and others.
Henry David Thoreau, in his famous essay "Civil Disobedience," wrote,
A common and natural result of an undue respect for law is, that you may see a file of soldiers, colonels, captains, corporals, privates, powder-monkeys, and all, marching in admirable order over hill and dale to the wars, against their wills, ay, against their common sense and consciences, which makes it very steep marching indeed, and produces a palpitation of the heart.
When farmers rebelled in western Massachusetts in 1786 (Shays' Rebellion), Thomas Jefferson was not sympathetic to their action. But he hoped the government would pardon them. He wrote to Abigail Adams:
The spirit of resistance to government is so valuable on certain occasions that I wish it to be always kept alive. It will often be exercised when wrong, but better so than not to be exercised at all. I like a little rebellion now and then. It is like a storm in the atmosphere.
What kind of person can we admire, can we ask young people of the next generation to emulate—the strict follower of law or the dissident who struggles, sometimes within, sometimes outside, sometimes against the law, but always for justice? What life is best worth living—the life of the proper, obedient, dutiful follower of law and order or the life of the independent thinker, the rebel?
Leo Tolstoy, in his story, "The Death of Ivan Illyich," tells of a proper, successful magistrate, who on his deathbed wonders why he suddenly feels that his life has been horrible and senseless. '"Maybe I did not live as I ought to have done...But how can that be, when I did everything properly?'...and he remembered all the legality, correctitude and propriety of this life."
2
The Problem is Civil Obedience
By the latter part of May, 1970, f
eelings about the war in Vietnam had become almost unbearably intense. In Boston, about a hundred of us decided to sit down at the Boston Army Base and block the road used by buses carrying draftees off to military duty. We were not so daft that we thought we were stopping the flow of soldiers to Vietnam; it was a symbolic act, a statement, a piece of guerrilla theater. We were all arrested and charged, in the quaint language of an old statute, with "sauntering and loitering" in such a way as to obstruct traffic. Eight of us refused to plead guilty, insisting on trial by jury, hoping we could persuade the members of the jury that ours was a justified act of civil disobedience. We did not persuade them. We were found guilty, chose jail instead of paying a fine, but the judge, apparently reluctant to have us in jail, gave us forty-eight hours to change our minds, after which we should show up in court to either pay the fine or be jailed. In the meantime, I had been invited to go to Johns Hopkins University to debate with the philosopher Charles Frankel on the issue of civil disobedience. I decided it would be hypocritical for me, an advocate of civil disobedience, to submit dutifully to the court and thereby skip out on an opportunity to speak to hundreds of students about civil disobedience. So, on the day I was supposed to show up in court in Boston I flew to Baltimore and that evening debated with Charles Frankel. Returning to Boston I decided to meet my morning class, but two detectives were waiting for me, and I was hustled before the court and then spent a couple of days in jail. What follows is the transcript of my opening statement in the debate at Johns Hopkins. It was included in a book published by Johns Hopkins Press in 1972, entitled Violence: The Crisis of American Confidence.