The Boston Five and the D.C. Nine

Dr. Benjamin Spock, the Rev. William Sloane Coffin, and the others known as the Boston Five were indicted in 1968 for doing essentially what John Lilburne and John Peter Zenger had done: saying things which might disrupt the military and bring about ill opinion of government.

In 1967, after the Vietnam War had been drastically escalated and the draft became a focal point of protest, a petition made its way around the country, especially on college campuses, gathering 28,000 signatures. “A Call to Resist Illegitimate Authority” was addressed “to the young men of America, to the whole of the American people, and to all men of good will everywhere.” It declared that “an ever growing number of young American men are finding that the American war in Vietnam so outrages their deepest moral and religious sense that they cannot contribute to it in any way.” It cited the Constitution and the United Nations Charter as a treaty to argue that the war was “unconstitutional and illegal.” It maintained that the United States had violated treaties and principles of law in fighting the war, committing crimes against humanity for which the Nuremberg defendants were tried.

Any of the 28,000 who signed the petition, any one of the 200 who were listed in the ads as signers, or, what might be more logical, the four who sent out the covering letter, might have been indicted as part of a conspiracy. Instead of charging a group who met together to plan out the writing and distribution of the petition and the various demonstrations, including draft-card turn-ins at the Justice Department, the government indicted as conspirators a group of five people who, for the most part, did not know each other. They were: Dr. Spock, the famous pediatrician; Rev.

The jury found Ferber, who had not even signed the call, guilty along with Spock, Coffin, and Goodman, but it found Raskin, the author of the call, not guilty. The three judge Circuit Court of Appeals held, two to one, that Ferber and Spock must be acquitted because neither counseled draft resistance; the former might have been part of a small conspiracy which he organized but not the large one, the two judge majority noted, and the latter might have been a drafter of the call which summoned forth the large conspiracy but what he did lacked specific intent.¹⁰⁷ That left Coffin and Goodman, out of the 28,000 possible, who were not entitled to acquittals because they had counseled resistance to the draft, precisely what the call had urged in strong language.

The Appeals Court set the verdicts aside, ordering new trials for Goodman and Coffin and acquitting Spock and Ferber, because of Judge Ford’s prejudicial error in the trial. He had asked the jury not only to come in with a verdict of guilty or not guilty but to fill out a questionnaire. The first of these “special findings” was: “Question No. I. Does the Jury find beyond a reasonable doubt that defendants unlawfully, knowingly and willfully conspired to counsel Selective Service registrants to knowingly and willfully refuse and evade service in the armed forces of the United States in violation of Section 12 of the Military Selective Service Act of 1967?” The second question substituted the word aid for counsel, and the third substituted the word abet. There were ten questions in all, each requiring a “yes” or “no” answer from the jury.¹⁰⁸

Judge Ford, apparently skittish over being reversed because of an unclear indictment and charge, sought to clarify the jury’s verdict with his ten questions.

The jury, all white and all male (thus no mother who had been guided by Dr. Spock), evidently had been influenced, not merely instructed, by Judge Ford. One juror, when asked after the trial why he had voted to convict, replied: “I knew they were guilty when we were charged by the judge. I did not know prior to that time—I was in full agreement with the defendants until we were charged by the judge. That was the kiss of death!” Another juror said: “The biggest discussion was not â€?guilty or not guilty,’ but what the judge meant by conspiracy. You can interpret that in a lot of ways. The judge did outline it very clearly, but it’s not what an ordinary layman would call conspiracy.¹¹¹ Besides, the jurors, like most jurors everywhere, were conscientious, believing that no matter how sympathetic they might be with the defendants, their duty lay in following the judge’s instructions. “You can’t have juries deciding whether laws are right,” as one juror put it, “there are certain laws on the books.”¹¹²

The Boston Five trial and the appellate court opinion touch a matter near the core of what trials of dissenters are about: conscience.

The trial of the Dow Chemical demonstrators in 1970 raised the question of jury nullification, a matter that has been controversial in the law since the trial of John Lilburne. The D. C. Nine, as they were called, broke into the Dow offices in Washington one Saturday in March 1969. In the full view of media cameras, which they had invited, the anti-war activists threw papers out the windows, broke furniture, and spilled something like blood all about the Dow offices in protests of Dow’s manufacture of napalm. After they were convicted, one of the issues of their appeal was whether Judge John Pratt had acted properly in refusing to instruct the jury that they could acquit the defendants without regard either to the law or the evidence.

Although the Appeals Court reversed the convictions and ordered a new trial of the Dow Chemical protesters, it was not on the jury nullification issue but on Judge Pratt’s refusal to allow the defendants to represent themselves. Nevertheless, the difference of opinion between two Appeals Court judges on the question of jury nullification crystallized not only the controversy over that issue but the wider issue on the nature of political trials. Judge Harold Leventhal acknowledged that in the American experience jury nullification has a distinguished history. Judge Leventhal referred to the Zenger trial as a leading example. Zenger’s sympathetic jury refused to find him guilty of seditious libel.

But, as Judge Leventhal read American history, what was a “youth-ful passion for independence” settled down and “accommodated itself to the reality that the former rebels were now in control of their own destiny.” Soon Justice Story’s 1835 ruling against jury nullification carried the day. Story’s opinion was that the jury’s function was to accept the law as given by the judge and to apply it to the facts. As for jury nullification, according to Leventhal, “the old rule survives today only as a singular relic.¹¹⁴

Chief Judge David Bazelon disagreed with Judge Leventhal. “The sticking point,” Bazelon argued, “is whether or not the jury should be told of its power to nullify the law in a particular case.… I see no justification for, and considerable harm in, this deliberate lack of candor.”¹¹⁵ Since Judge Pratt “emphatically denied the existence of a â€?legal defense’ based on â€?sincere religious motives’ or a belief that action was justified by â€?some higher law.”’ The trial judge in his instructions to the jury was not neutral on the matter of jury nullification.¹¹⁶ He discouraged the jury from “measuring the defendants’ action against community concepts of blameworthiness.” This Bazelon called a “sleight-of-hand” which was based on a fear that “an occasionally noble doctrine will, if acknowledged, often be put to ignoble and abusive purposes—or, to borrow the Court’s phrase, will â€?run the risk of anarchy.’”¹¹⁷ Bazelon suggested, by contrast, that a juror who is motivated by prejudice is more likely to ignore spontaneously the judge’s instructions than is a conscientious juror who considers the case in the light of prevailing community values. Bazelon would prefer nullification arising out of knowledge rather than out of ignorance: “I simply do not understand the justification for relying on a haphazard process of informal communication.”¹¹⁸

At the heart of the difference between judges Leventhal and Bazelon are contrasting views of juries and of the law. For Judge Leventhal the matter boils down to pluralism. If each jury is going to be assigned the role of a mini-legislature, criminal law will be paralyzed. “It is one thing for a juror to know that the law condemns, but he has a factual power of lenity. To tell him expressly of a nullification prerogative, however, is to inform him, in effect, that it is he who fashions the rule that condemns. This is an overwhelming responsibility, an extreme burden for the jurors’ psyche.” Facing an unpopular verdict, a juror can tell his friends and neighbors that he was merely following the judge’s instructions. But, to Leventhal, “an explicit instruction to a jury conveys an implied approval that runs the risk of degrading the legal structure requisite for true freedom, for an ordered liberty that protects against anarchy as well as tyranny.”¹¹⁹

Judge Bazelon’s position, by contrast, is that the jury is the “spokes man for the community conscience in determining whether or not blame can be imposed.” Abuse is possible, Bazelon admitted, but the underlying problem is not the nullification doctrine but the prejudice which prompts it. A clear example would be the acquittal by a bigoted jury of a white who committed a crime such as lynching against a black. The solution, Bazelon suggested, “is not to condemn the nullification power, but to spotlight the prejudice.” The “revulsion and sense of shame fostered by that practice fueled the civil rights movement, which in turn made possible the enactment of major civil rights legislation.¹²⁰

Judges Leventhal and Bazelon agree that jury nullification is legitimate. But they differ on whether or not the judge would inform the jury of their power. Like parents uncertain about what to tell their child about sex, judges Leventhal and Bazelon disagree on how much a judge should tell the jury. If Leventhal is correct, instruction from the judge is not necessary because the culture provides it and juries will assume their power when the occasion presents itself. The formal instruction from the judge is only part of it. The informal education of a jury comes from, as Judge Leventhal listed them, many sources: novel, drama, film, television, newspapers, magazines, conversation, history, and tradition. “Law is a system, and it is also a language, with secondary meanings that may be unrecorded yet are part of its life.”¹²¹ The same, of course, can be said of sex education. Judge Bazelon is of the opposite school, and if he is correct, responsible use of the jury’s power is better than ignorant use. If Leventhal would argue that to inform juries would encourage irresponsible use of nullification, Bazelon makes the point that abuse will arise from misinformation. For Leventhal, to tell them would threaten the rule of law, while for Bazelon to tell them will strengthen it.

To turn back to the Boston Five trial, the defendants in that case did not accomplish the goal of persuading the jury and enlightening the public about their civil disobedience. The jury got from the attorneys a series of conflicting messages. James St. Clair, who in Boston defended Coffin and a few years later defended Richard Nixon before the Supreme Court in the Watergate tape case, developed the theme, that “we are not trying the war. We are not even trying the constitutionality of the draft act.”¹²² Instead, he suggested, consider Coffin’s character: “Is it likely that a clergyman, chaplain of one of the major universities in the world, with a distinguished military record, who was a trusted employee of the CIA for a number of years, would enter into a criminal conspiracy?” St. Clair argued to the jury that Coffin did not participate in a particular demonstration of burning draft cards because he was opposed to that form of demonstration.

Likewise, Raskin’s lawyer, Calvin Bartlett, listed the activities of the others, ten “lurid activities,” with which Raskin had nothing to do— no demonstrations, no press interviews, no obstructing induction centers, no picketing, no draft card burning. Raskin, he observed, did not listen to the speeches of the others because “they were boring.”¹²³

From the lawyers for Goodman and Spock, by contrast, the jury heard an appeal to conscience. Ed Barshak for Goodman argued that it was against the background of the Vietnam War tearing apart the American people that the jury had to make its judgment.

It is one thing for the Court to tell you what is the law of this, that and the other thing.… But what in fact is left over for free speech, what in fact is left over for the rights of us Americans depends upon how you find the facts.… There is a danger that juries could find facts in such a way that this tool of the law called conspiracy will eat up the area that you and I and everyone has considered to be our right to associate with each other, to sign things, to go to meetings.… After you hear the rules, the question is whether or not you are going to characterize the defendants’ actions factually as a criminal conspiracy or as allowed American conduct, allowed American association, allowed sitting down on the sidewalk for the purpose of violating a local ordinance, you are going to decide that, and nobody else can.¹²⁴

Leonard Boudin on behalf of Spock challenged the concept of conspiracy as used in the trial. The call had been signed by thousands, including Robert McAfee Brown and Robert Lowell. “Either the document is meaningless, or it contains an implication of criminal intent on behalf of all of these distinguished men.” Perhaps the call should be seen, Boudin continued, as a political platform, “a public manifest or tract, the kind that were so familiar in the days of Tom Paine, a campaign document, a statement of beliefs.” Instead of emphasizing how his client was not involved, as the other lawyers had, Boudin stressed how the government had documented only a fraction of Spock’s antiwar activities.¹²⁵

If the jury heard an uncertain defense, they had no trouble picking up the prosecution’s message. Assistant U.S. attorney John Wall told them that the issue in the trial was law and order versus anarchy. “If there is disagreement on policy, even on mortality,” he stressed, “as long as we can go to the polling booth and vote, I submit that is the proper way to do things, if we are not going to have anarchy. A sincerity can’t be a defense. It can’t be. Beliefs cannot be accepted as justification for conduct in violation of the duly passed law of the land. To permit that justification would be to say that whatever a person says his beliefs are is superior to the law of the land and would permit an objector to be a law unto himself. Anarchy!”¹²⁶ This too is an appeal to conscience.

At a rally following the sentencing of the four of the Boston Five who had been convicted, Coffin denounced the trial as “dismal, dreary, and above all demeaning.” It was demeaning because it was unworthy of the best of America. “I had little quarrel with being indicted; in a way I had invited it. But the invitation read clearly: to test out in court the legality of an undeclared war, the constitutionality of the draft law, and finally to test in court what is always and eminently worth testing—the limits of dissent guaranteed under the First Amendment. But what did the government do? It skirted the uncomfortable, it ducked the difficult, it refused the invitation.” It was also demeaning to the defendants who faced the frustration of “having to argue a big case in a small way.”¹²⁷