head I wil do so."
Justice in the Courts
Those who run the legal system in the United States do not want the public to accept the
idea of civil disobedience—even though it rests on the Declaration of Independence, even
though it has the approval of some of the great minds of human history, even though some
of the great achievements for equality and liberty in the United States have been the result
of movements outside of and against the law. They are afraid that the idea wil take hold,
and they are right, because the commonsense belief of most people, I think, is that justice
is more important than law.
During the Vietnam War, not long after I got back from Hanoi, where I had visited vil ages
devastated by American bombs, I was asked to testify at a trial in Milwaukee. Fourteen
people, many of them Catholic priests and nuns, had invaded a draft board and destroyed
documents to protest the war.
I was to testify as a so-cal ed expert witness, to tel the judge and jury about the history of
civil disobedience in the United States, to show its honorable roots in the American
Revolution, and its achievements for economic justice and for racial equality.
I started out talking about the Declaration of Independence and then about Thoreau's civil
disobedience, and then gave a brief history of civil disobedience in the United States. The
judge pounded his gavel and said, "Stop. You can't discuss that. This is getting to the heart
of the matter."
The defense attorney asked me, "What is the difference between law and justice?" The
prosecution objected, and the judge said, "Sustained." More questions about civil
disobedience. More objections, al sustained. I turned to the judge (something a witness is
not supposed to do) and asked, in a voice loud enough for the courtroom to hear, "Why
can't I say something important? Why can't the jury hear something important?"
The judge was angry. He replied, "You are not permitted to speak out like that. If you do
that once more I wil have you put in jail for contempt of court." Later I felt I should have
been more courageous and joined my act of civil disobedience to that of the defendants.
107
What the judge wanted to hear about in his courtroom was merely the technical violations of law committed by the defendants—breaking and entering, destroying government
documents, and trespassing. "This is a case about arson and theft." He did not want to hear why these usual y upright and law-abiding citizens were breaking the law. He did not want
to hear about the war in Vietnam. He did not want to hear about the tradition of civil
disobedience.
To have the mechanical requirements of "due process"—a trial, contending arguments, and
decision by a jury of citizens—is insufficient if the arguments are not ful y made, if the jury
does not know what is at stake, and if it cannot make a decision on the justice of the
defendants' action, regardless of legality. Supposedly, it is the judge who sees to it that the
law is made clear to the jury, but then it is up to the jury to see that justice is done.
However, if the judge prevents the jury from hearing testimony about the issues, the jury is
being compel ed to stay within the narrow, technical confines of the law, and the democratic
purpose of a jury trial is extinguished.
The courtroom, one of the supposed bastions of democracy, is essential y a tyranny. The
judge is monarch. He is in control of the evidence, the witnesses, the questions, and the
interpretation of law. In the mid-1980s I was cal ed as a witness by some people in
Providence, Rhode Island, who had done some smal symbolic damage at the launching of a
nuclear-armed submarine, in protest against the huge expenditure of money for deadly
weapons and the escalation of the arms race. I was to tel the jury about the importance of
civil disobedience for American democracy.
The judge would not let me speak. From the very first question—"Can you tel us about the
history of civil disobedience in the United States?"—as I began to answer, the judge stopped
me. "Objection sustained," he said loudly. I had not heard any objection from the
prosecuting attorney.
Indeed, at this point the prosecuting attorney, a young man, spoke up, "Your honor, I did
not object."
"Wel ," said the judge, "why didn't you?"
"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, cal ing for ten years in prison, and a misdemeanor, cal ing 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, tel ing the
defendants, confidential y, that he did that because he was sure the judge would give the
defendants the ful 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."41
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.
108
But when the national mood changes, when the political atmosphere becomes differently charged, judges may be affected by that. If they then al ow 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 bul ied by
judges, juries may choose justice before law.
By 1967 there was a formidable movement al 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 tel the jury about their belief in the il egality 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 al of the Seven. One of the jury members said later,
"I'm not a puppet. I'm a free thinker."42
I was in Camden, New Jersey, in 1973, having been asked to testify in the trial of "The
Camden Twenty-eight." The twenty-eight men and women, mostly young and from the
Philadelphia area, had broken into a draft board in the night for the purpose of doing away
with some of the files as their protest against the Vietnam War. There was a police informer
in their midst and they were caught
before they got to the files, so here they were in federal
court, charged with various counts of trespassing, breaking, and entering and there was no
question about the fact that they had violated several laws.
Similar cases of draft board protests had resulted, again and again, in verdicts of guilty. Six
years earlier (1967) the "Baltimore Four" were convicted and Philip Berrigan had been
sentenced to six years in prison.
But by 1973 public opinion had shifted sharply against the war, and the United States had
reached an agreement with North Vietnam to withdraw American troops. The judge in
Camden, a conservative man, treated the defendants with respect. They were representing
themselves in court, with the advice of several "movement lawyers" from Philadelphia. The judge al owed them to bring whatever witnesses they wanted, to tel the jury whatever they
wanted to say about the war.
I had recently returned from testifying in the Pentagon Papers case on the West Coast,
where I had told the jury what was in the Pentagon Papers—in effect, giving them a two-
hour lecture on the history of American intervention in Vietnam. The judge in Camden
al owed me to go into that history. He also al owed the defendants to speak from their
hearts to the jury about what had impel ed them to do what they did.
The jury returned a verdict of acquittal. The woman who headed the jury then threw a party
for the defendants. Juror Samuel Braithwaite, a fifty-three-year-old black taxi driver from
Atlantic City who had spent eleven years in the army, wrote a letter to the defendants after
the verdict was in:
To you, the clerical physicians with your God-given talent, I say, wel done.
Wel done for trying to heal the sick irresponsible men, men who were chosen
by the people to govern and lead them. These men, who failed the people, by
raining death and destruction on a hapless country … . You went out to do
your part while your brothers remained in their ivory towers watching … and
hopeful y some day in the near future, peace and harmony may reign to
people of al nations.43
109
Jury Nullification
The Camden jury had exercised a right that judges never tel juries about: the right to come
to a verdict fol owing their conscience rather than the strict requirements of the law—to
choose justice over law.
That right of "jury nul ification" 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."44
In America the principle of jury nul ification 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 fol owed 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 shal do my
official business and find Greatheart guilty, and I shal seem to be a true
man; but if I value my manhood, I shal answer after my natural duty to love
a man and not hate him, to do him justice, not injustice, to al ow him the
natural rights he has not alienated, and shal say, "Not guilty."45
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 real y 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 nul ification to achieve justice.
Law and Justice are from time to time inevitably in conflict. That is because
law is a general rule; … while justice is the fairness of this precise case under
al its circumstances… . 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.46
Another famous legal scholar, Roscoe Pound, had written back in 1910 that "jury
lawlessness is the great corrective" in legal proceedings.47
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 ful agreement with the
defendants until we were charged by the judge. That was the kiss of death!"48
Another juror in the Spock case, Frank Tarbi, wrote in the Boston Globe about his anguish: 110
How and why did I find four men guilty? Al men of courage and individuals
whom I grew to admire as the trial developed … . As the father of three
teenaged 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 technical y
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 hel
with my ulcer. After four or five stiff hookers (I lost count) I began to cry
bitterly.49
In the case of the Catonsvil e Nine draft board invaders, the Circuit Court of Appeals, while
affirming their convictions, made a remarkable statement in support of jury nul ification:
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.50
Nevertheless, it is always a struggle in the courtroom to get the judge to agree to admit into
evidence those things that wil al ow 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 al ow a necessity defense, and when the jury was out for eight hours, the judge speeded
up their decision by 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 real y went to commit a crime. They went to protest… . We real y 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 al owed 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 hal way 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 al owed them to cal 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; and I testified about the history of civil disobedience in the
United States and its usefulness in bringing about healthy social change.
111
The prosecuting attorney told the jury to disregard al that testimony. He pointed to a large chart on a stand facing the jury—one of the exhibits, which was a map of the senator's