The Chicago Conspiracy Circus

"Screw the war, screw racism. The big issue now is prison reform,"Abbie Hoffman said shortly before he and his six codefendants were sentenced to jail. Later, when a higher court let them out of prison, pending appeal, he and his buddy, Jerry Rubin, resurfaced in a fury of complaints about roaches, the plumbing and the food served in Cook County Jail. But he was wrong. The big issue for millions of people was how these men had come to be indicted and what had happened at their trial.

They were indicted for violating and conspiring to violate Title I, section 2101, of the 1968 Civil Rights Act, a constitutionally dubious piece of Federal law generally known as the Rap Brown Amendment, in honor of the man who inspired Congress to write it. Section 2101 makes it a Federal crime to cross a state line or to send a message across a state line with the intention of inciting or encouraging a riot. The specific riot blamed on the men who have come to be known as the Conspiracy Eight--later Seven--is what happened on Chicago's streets during August of 1968 while the Democratic National Convention was nominating Hubert Humphrey in exhaustion, despair and disillusion.

In the contentious aftermath, the National Commission on the Causes and Prevention of Violence asked Daniel Walker, a Chicago corporation lawyer, to head a study team that would fix the blame for the fighting on whoever was responsible. The Walker Report, the most detailed and objective account we have of what happened, concluded that "The vast majority of the demonstrators were intent on expressing by peaceful means their dissent either from society generally or from the Administration's policies in Vietnam...On the part of the police, there was enough wild club swinging, enough cries of hatred, enough gratuitous beating to make the conclusion inescapable that individual policemen, and lots of them, committed violent acts far in excess of the requisite force for crowd dispersal or arrest. To read dispassionately the hundreds of statements describing at firsthand the events...is to become convinced of the presence of what can only be called a police riot."

Nevertheless, eight civilian protesters were prosecuted by the Justice Department for conspiring to incite the police to riot. The mere fact of this indictment raises the possibility that anybody who publicly manifests his approval or disapproval of anything--be it rat control, peace, clean lakes or better police protection--not only risks getting his head split open by a cop but also risks being tried for conspiring to provoke a cop to do it. This could have a chilling effect on free speech, and it is one reason, simple justice aside, that many people who are irritated by the defendants' personalities, courtroom antics and politics are sticking up for them.

One of the defendants, Tom Hayden, has provided evidence that the decision to prosecute him was made before any kind of riot took place in Chicago. Hayden says that on the very first day of the convention, he was told by the police assigned to tail him that he would be indicted under the Rap Brown Amendment. Rennie Davis agrees that it was a "Government that increasingly is controlled by a police mentality" that indicted him and the seven others and brought them into a trial that has claimed more attention than Sirhan Sirhan's, more than the Rosenbergs', more than any American criminal proceeding since Sacco and Vanzetti's. "This trial," said Davis, "has been controlled by the police and the FBI and undercover agents from the beginning, from the first witnesses that have been paraded with their lies to that witness stand to the last sentence."

That's what Davis told Judge Julius Hoffman before that last sentence was given the five who were convicted. The FBI agent who sat at the prosecution table said nothing. He'd sat there for the trial's four-and-a-half-month duration and said nothing. Maybe he was there to make sure the job was done and that Davis, Hayden, Dave Dellinger, Abbie Hoffman and Jerry Rubin were sent up for five years. United States District Attorney Thomas Foran claimed otherwise. He maintained that the decision to prosecute came from Washington and Nixon's Attorney General, John Mitchell, in a routine way.

The gossip around Mies van der Rohe's 30-story steel courthouse provided a different explanation. They do gossip there; but instead of sitting in rockers under porticoes, the old-timers pass their retirement hours in shiny metal and Naugahyde chairs lining brightly lit corridors. The courthouse talk was that Foran had been told to do the job by Mayor Daley. It's impossible to say. Foran was the most puzzling of all the principals.

The judge was easy to figure. Seventy-four years old, a legal technician who had married rich and then donated enough money to the Republican Party for Eisenhower to appoint him to the bench, he was an ordinary status-quo man with a pedantic theatricality about him and a touch of British affectation in his speech. Supposedly, the judges get their assignment by lot, but his choice suggested premeditation. He is Jewish, and so were three of the defendants. Of a different political party than Daley's, he is more intelligent than the loud, quick-tempered patronage hacks whom years of Democratic control had permitted to accumulate on the Federal bench in the Northern District of Illinois, Eastern Division.

From the beginning, it was obvious that Hoffman thought he was doing the Lord's work; but Foran was different. True, he had earned a lot of money around Chicago representing clients in urban-renewal work, which you don't do if City Hall disapproves of you; but coming into this trial--which has destroyed his reputation with moderate liberals--he was considered the best U. S. District Attorney Chicago had had in years. He'd broken his back trying to get a jury to convict a policeman for depriving a black man of his civil rights by killing him. Throughout the conspiracy trial, there were rumors that he thought being involved in it was the worst mistake he'd ever made and that he was spending every day after court with the judge, trying to get him to hold back and make it look fairer.

If nobody can say who ordered the eight tried for breaking and conspiring to break the Rap Brown Amendment, why these eight were picked is also unknown. They were, as Norman Mailer tried to say from the witness stand before he was silenced by the prosecution, "not political allies but practically enemies." Hayden and Davis, with their common SDS background, shared the same ideas and values, and they did work closely on an operational though not an ideological level with Dave Dellinger, the 54-year-old communitarian, Christian pacifist disciple of the late A. J. Muste. These three, with their reasoned radicalism, their position papers and their memoranda, had nothing in common with the two super-hippie-Yippies, Abbie Hoffman and Jerry Rubin.

During the spring and early summer of 1968, when the Chicago convention was in preparation, relations between the National Mobe office (Davis, Dellinger and Hayden) and the street-theater contingent, with their Festival of Life and Pigasus, their porcine Presidential candidate, were at the level of open animosity. Davis would sit around the first-floor coffee shop in the building where the Mobe was located and damn Abbie Hoffman, calling him reckless and saying his cart wheels and handstands would get people hurt. In his turn, Abbie Hoffman, when you could get him to be serious, would shrug off Hayden with an expletive: "Political freak!" At a preconvention planning meeting where the Mobe tried to get the dozens of diverse and disagreeing anti-war groups to decide what they were going to do in Chicago, Abbie spoke at a workshop on anti-capitalism. He said that he "offered a plank that we ought to abolish pay toilets, that they were an insult to a system that was as affluent as this. They didn't like that. They were very straight, that workshop."

Davis, Dellinger and Hayden had played important parts in protest politics for years. It may not have been wise or right to indict them, but it made a kind of sense. Rubin and Hoffman, however, appeared to have been brought to the prisoners' dock for kidnaping and seduction. Foran put it this way: "Evil is exciting and evil is interesting and plenty of kids have a fascination for it. It is knowledge of kids that these sophisticated, educated psychology majors know about [Abbie Hoffman did graduate work in psychology]. They know how to draw kids together and maneuver them to accomplish their purposes. They take advantage personally, intentionally, evilly to corrupt those kids." Later, he would say, "We can't let people use our kids like that.... Hoffman said, 'There was no violence, but the young kids were fucking in the grass and smoking dope.' That's what he said. I don't like to use language like that, but...that's what you're dealing with.... We've lost our kids to the freaking fag revolution and we've got to get them back."

Bobby Seale seems to have been made a defendant because 1968 and 1969 were two years when it was fashionable to involve a black in any activity. If the trial were to happen now, the same kind of requirement (continued on page 94)Chicago Conspiracy(continued from page 88) would demand the inclusion of a women's-liberation type. There was no other reason for indicting Seale, the Black Panther, who was a last-minute speaking replacement for Eldridge Cleaver; no evidence was ever introduced to show that he did more than fly into town for two days, give a couple of speeches and fly out.

The last two defendants were the most perplexing. They were small shots. One of them, John Froines, an assistant chemistry professor, was so unimportant in the trial that, after reading the instances of contempt committed by the other defendants, the judge forgot to sentence him. "It's part of being a media unknown," said Froines by way of selfcondolence. Judge Hoffman recollected himself and sentenced Froines to six months and 15 days in jail and, as an afterthought, gave Lee Weiner, a graduate student in sociology, two months and 18 days.

This is a lot of time to pull when, like Weiner and Froines, you're found not guilty on all counts; it would be a lot of time even if you were found guilty of what they were accused of: conspiring to put a stink bomb in the lobby of the Conrad Hilton Hotel and fire-bombing an underground garage. Since almost no evidence was introduced against them, the question of why they were indicted remains. The only explanation came from Tom Hayden: "Pick Weiner and Froines, innocent young men, so if they are found guilty, that will scare every innocent young person who might associate with leaders, who might go to a demonstration because they are average people in a movement of millions of average people and when they saw them indicted, they said to themselves, 'Well, that could have been me.' Also, it gives you plenty of room to negotiate if the jury doesn't want to feel it's putting everybody away."

Hayden was right. The jury did negotiate. After it had rendered its verdict, Kay Richards, a 23-year-old computer operator and the only young juror, recounted what happened during the four days it took them to decide: "There were two groups and each felt they had their own point of view, and they wouldn't change it. At first I was a hard-liner for finding all seven of them guilty and then I went soft. I felt as a responsible juror I had to come up with a solution, so I became the negotiator.... I sat down with the three women who were really hard-liners for finding the seven [Seale had been mistrialed out of the case] innocent. The three thought the law was unconstitutional. I pointed out it was our job to decide whether these men had broken the law, and it was the job of an appeals court to decide if the law was constitutional...at the hotel, the others agreed to the compromise. They didn't feel it was right, they said, but they would consent and do it."

But by then, the jury's action was anti-climactic. All eight and their two lawyers had already been sentenced to unprecedented prison terms for contempt. All over the country, people--even liberals who thought the trial was insane--were accusing the eight and their attorneys of what the judge repeatedly called "a deliberate and willful attack upon the administration of justice in an attempt to sabotage the functioning of the Federal judicial system." From reading some of the editorials, you might be forced to conclude that the eight had cleverly tricked the United States Government into indicting them so they could lay waste to the Federal courts.

The defendants denied they ever regarded the trial as a God-sent target of opportunity. On the last day of the trial, Abbie Hoffman remarked that Judge Hoffman's court, a place he had once called a "neon oven," was "probably the least best forum to hear what is called the truth." He went on to say in the morbid way of one who doesn't have the energy to fight an ineluctable fate, "Right from the beginning of the indictment up until the end of the trial, I always wanted to change my plea. I had, like, a great urge to confess; say, 'I am guilty,' because I felt what the state was calling me was an enemy of the state...I recognize that I am an outlaw."

During most of the trial, Abbie Hoffman's behavior reflected just this state of mind. Some days he would joke and do handstands on the defense table, the blue neon lights from the grill in the Government oven making him look bad and tired; some days he would sit blowing his nose and taking pills--he was sick and fluish a lot--and some days the proceedings would catch him up in anger and he'd fight back. There was no pattern to it, nothing to indicate a studied deliberation.

Rennie Davis declared, "You may not believe this, but we came here to have a trial with a law that we regarded as unconstitutional and unfair and a jury that was inadequately selected. We came here, nevertheless, to present our full case to this jury so that it might decide on whether or not our movement was just in coming to Chicago or whether or not we came here to incite a riot." Jerry Rubin, the old hell raiser from Berkeley, said the same thing: "I was ready for a trial with lawyers, a full defense."

It may seem contradictory that men who had damned the system should claim that they came like ordinary defendants with a hope that the machinery would work equitably and that they would be acquitted. But they probably did. They're too American not to believe--with some part of themselves--in the formal institutions of the country. In one sense, it was this very belief that got them in trouble--their shrill, braying, insulting, militant, obnoxious, whacked-out, indomitable demand that the nation live up to itself. A chilled, analytical piece of themselves said the system would act to destroy them; the believing part, the part that caused them to keep quoting Thomas Jefferson to the judge, said that justice would be done, that the forms meant something.

This wasn't true of Tom Hayden. After the convention, before he was returned to Chicago for the trial, he had gone off to Berkeley and let his hair grow long, so that when he reappeared, his ear-length locks, his acne-scarred skin and his red nose made him look like a bankrupt, alcoholic pilgrim--or an English-village lout. In the Berkeley Soviet, he had fallen in love, listened to music and seemed to be in the process of becoming more humane and less of a logical ideologue. He even talked about "the post-Calvinist society," but his writings remained Leninist in tone, not in content but in the feeling of wanting to turn sloppy human imponderables into predictable patterns of behavior.

Months before the trial, in June of 1969, he wrote, "We need to expand our struggle to include a total attack on the courts. The court system is just another part of this rigged apparatus that is passed off as 'open and impartial.'...There is no reason for us to become submissive at the courtroom door." Later, he made it clear that the Chicago trial was going to be nothing like the Spock conspiracy trial: "We do not intend a defense like that of Dr. Benjamin Spock.... The goal in that trial was to challenge the legality of the war inside a Government courtroom.... The defendants eventually were freed probably more because of their respectability than their legal strategy. Their failure was political. Their courtroom testimony went unheard.

"We are attempting to create a political trial this time with wide international repercussions.... We were not a pressure group which went beyond the permissible limits of dissent in liberal society and we are not interested in having this trial define those limits.... The give and take in the courtroom brings out latent hopes that capitalism can be tolerated.... We do not intend a defense which leaves this ritual renewed...the courts are no longer co-optive and tantalizing, but more nearly the assembly points on the road to detention camps."

That's what Tom Hayden said; what he did in the courtroom was quite different. He was the least noisy and most polite of the defendants, even managing to charm Judge Hoffman into arranging (continued on page 177)Chicago Conspiracy(continued from page 94) that fascinating, elastic mouth of his into an expression close to a smile, while telling Hayden, "Fellows as smart as you could do awfully well under this system," and then adding, in a second sally of judicial humor, "I'm not trying to convert you, mind you." Of all the defendants, Hayden ended this awful, draining trial with the most respect and affection from the steady spectators. He seemed more like the friend of Robert Kennedy (which he was) than whatever kind of radical he is; his speeches in the courtroom were so measured and reasonable that it seemed like the chairman of the A. D. A. was on trial.

When Judge Hoffman gave him 14 months and 14 days for contempt and asked him why he shouldn't pack him off to the penitentiary, Hayden's reply was totally nonpolitical. "I was trying to think about what I regretted about punishment. I can only state one thing that affected my feelings, my own feelings, and that is that I would like to have a child." The judge answered him, "There is where the Federal system can do you no good." Hayden was near tears, many people in the courtroom were crying and, until Judge Hoffman made his cruel wisecrack, there was some hope that at the very end, a few of these men might relent and do a kindness to one another. Instead, Hayden responded sharply, "Because the Federal system can do you no good in trying to prevent the birth of a new world."

Looking back on the trial record, it didn't matter whether or not Tom Hayden and the others intended to assault the judicial system. The system assaulted itself as though it were recapitulating the events of the convention week, when the simple presence of Hayden and the hippie-Yippies was enough to set off a police riot. Their appearance in the courtroom set off a legal riot.

At first, things were nasty but not out of control. The eight were unhappy with the picking of the jury, but they left it to their lawyers, Leonard Weinglass, a young man from Newark making his first appearance in a Federal court, and William Kunstler, a widely respected attorney who had defended all kinds of people in the movement, from Martin Luther King, Jr., to Rap Brown. Both of them were straight legal types coming at the case as if they assumed they could win it in the usual way lawyers win cases. This caused Abbie Hoffman to laugh one day in the elevator during the lunch break. "Poor Kunstler," he said, "the guy thinks he's back in the good old South with those good old civil rights cases. He's gonna put everybody to sleep and lose, too."

Judge Hoffman asked both sides to suggest questions he should put to the jury in order to determine if they were biased, and Kunstler submitted a long list of them. They included such pertinent inquiries as: "Would you let your son or daughter marry a Yippie? Do you consider marijuana habit-forming? Do you have hostile feelings toward persons whose life styles differ considerably from your own? Do you know who the Fugs are? Do you believe that young men who refuse to participate in the Armed Forces because of their opposition to the war are cowards, slackers or unpatriotic?" Virtually none were asked.

The jury of ten women and two men was predictably old, lower middle class and, judging from what little was revealed about them, unable to understand somebody like an Abbie Hoffman or a Rennie Davis, who worked for an organization that paid its staff by trying to institutionalize the loaves and the fishes. "We had an icebox," Davis told the court, "and a newsman would come into the office and we'd ask him if he had ten dollars, and then we'd take the ten dollars and go down and buy baloney and put it in the icebox and get some bread and jam and peanut butter. People who had a need were given money when it existed."

As soon as this jury of the defendants' "peers" was chosen, and before the first prosecution witness was sworn in, Bobby Seale gave the court his own handwritten motion, asking that the trial be postponed until his lawyer, Charles R. Garry, could get out of a San Francisco hospital and come to represent him. Or, if that were denied, he wanted to represent himself. Judge Hoffman paid no attention. The trouble began immediately. Seale, a thin man wasted from months in jail in connection with a murder charge that he maintains is as political as what he faced in Chicago, was not going to be put aside. He persistently got to his feet to say such things as, "If I am consistently denied this right of legal defense counsel of my choice, then I can only see the judge as a blatant racist."

Judge Hoffman was called Judge Magoo by the defendants, because the little five-foot, four-inch man looks like the cartoon character or like some harsh reckoner of helpless spirits in a Dickensian countinghouse. He's tough enough to stifle his anger when his temper grows short. Then he works his jaw muscles and grinds out sandpaper words through locked molars. "Mr. Seale," he would say, "I must admonish you that any outburst such as you have just indulged in will be appropriately dealt with at the right time during this trial, and I must order you not to do it again. If you do, you do it at your own risk, sir.... Will you be quiet? That is all. You have a lawyer to speak for you."

"They don't speak for me," Seale would reply in varying pitches of anger. "I want to represent myself. Charles R. Garry is not here in my service.... I will speak for myself. I want to defend myself. I just want to let him know. That racist, that fascist! The black man tries to get a fair trial in this country! The United States Government, huh! Nixon and the rest of them!"

The judge's position was that Seale had a lawyer: William Kunstler. This was true, but only in a limited sense. Kunstler had filed as Seale's counsel after the Black Panther had been taken from his California prison and driven by a crazy zigzag route to Chicago, where he was held incommunicado in Cook County's dilapidated jail. His friends and codefendants were worried about his health and Kunstler filed an appearance solely to get into the jail to visit Seale. From what an outsider could judge, at no time did Seale contemplate using Kunstler as his lawyer. He had always used Garry, who is a great favorite of the California Panthers. Actually, Garry was supposed to be chief counsel for all the defendants. His absence may have been a serious loss to the defense, because he's supposed to be much better at examining witnesses than Kunstler, who is regarded more as an appellate man.

Since there are almost no clear-cut, unambiguous rules in law, there's no way of saying if Judge Hoffman was technically right in doing what he did on the Garry matter. In other cases, Judge Hoffman has been known to grant a trial postponement for such reasons as a lawyer's preplanned Caribbean vacation. This, like almost everything else a judge does, is up to his discretion. Regardless of the technicalities, what Judge Hoffman did was to ignore the appearances of justice. Most Americans believe they have an absolute right to defend themselves, to call their own witnesses and to present their own evidence to prove their innocence. Judge Hoffman, who ought to have known better--since he is ultrasensitive to publicity--forgot this and made rulings that scandalized lay opinion. He compounded his errors by failing to explain his reasons, so a sensitive spectator got the idea that the law and the workings of the law courts were nobody's business but the judge's.

But Judge Hoffman may have felt that he was on shaky legal ground in refusing Seale's demands. After Seale began his rumpus, the judge issued bench warrants for the arrest of four lawyers, who had been retained only to prepare pretrial motions concerning FBI wire taps, in order to show that Seale was adequately represented. The lawyers were never meant to argue the case in court. The judge's attempt to demonstrate to an appeals court that Seale had representation was botched; one of the four, Mike Tigar, a young UCLA law professor, was dragged out of bed, put on an airplane to Chicago, where he was photographed, fingerprinted and thrown into jail. Immediately, there was an uproar. Lawyers came flying into the city to picket the courthouse. Even the staid members of the bar got fidgety about this sort of treatment for one of their brothers. Judge Hoffman might do it to them sometime. The resulting stink made the judge back off, but he still wouldn't let Seale defend himself.

The Government's case was never very coherent--being a collage of testimony by police spies, double agents, creeping Toms, provocateurs, snatches of TV film and dull recitals of incidental material by lower-level political bureaucrats. And during October, the first full month of the trial, what shape it did have was shattered by Bobby Seale, who wanted to cross-examine witnesses and have the same privileges as the two defense lawyers. He would not give up trying to defend himself. Day after day, the judge would stretch his mouth and say, "I admonish you, sir, that you have a lot of contemptuous conduct against you," and the tall black man who wore a longsleeved striped T-shirt would come back saying, "I admonish you. You are in contempt of people's constitutional rights. You are the one who is in contempt. I am not in contempt of nothing."

It got rougher and rougher, with the marshals forcibly pushing Seale down into his seat and Dave Dellinger interposing himself in his nonviolent way to prevent them. The defendants couldn't take what was happening to Seale without doing something. They were all active, articulate political men, and they began fighting back in a dozen ways. To show their contempt, they would pass out jelly beans in the courtroom or try, as they did one day, to get a birthday cake inside for Seale. The marshals, sporting miniature handcuff tie tacks, stopped them, thus prompting Rennie Davis to blurt out in open court--at the cost of a two-day jail sentence--"They arrested your cake, Bobby. They arrested it."

Dellinger seemed to be the most profoundly outraged at what was happening to Seale. This lifelong pacifist, a shorthaired, old-school Christian socialist, who must have worn the same fagged-out olive-green sports coat every day of the trial, could not contain himself. He was the most aggressively abusive of the remaining seven throughout the trial, constantly calling Judge Hoffman a fascist, a racist and a liar. He got over two years for contempt because of it, but he showed no fear.

The others sometimes did. There would be days when Rubin would come into the courtroon with a spooked, frightened dullness in his eyes. Dellinger had already served three years in jail during World War Two for resisting the draft, so perhaps he knew what the others couldn't--that he was strong enough and together enough as a personality to take years in prison. Some days he'd leave off trying to defend Seale and go on the attack, as he did on October 15, when he said to the judge, "Mr. Hoffman, we are observing the Moratorium."

"I am Judge Hoffman, sir," the judge replied.

"I believe in equality, sir," Dellinger gave back, "so I prefer to call people mister or by their first name."

"Sit down."

"I wanted to explain we are reading the names of the war dead from both sides."

By October's end, with Seale uncowed and the rest of the defendants in a daily rising fury, the judge ordered the marshals to chain the black man to his chair and gag his mouth. That didn't stop Seale, who was able to talk through the gag, which was then tightened with an elastic bandage. The bandage began to choke Seale and, in a courtroom of widening chaos, Weinglass asked that it be loosened, while Kunstler asked, "Your Honor, are we going to stop this medieval torture that is going on in this courtroom?"

Then the dialog went as follows:

Rubin: This guy (a very big, black marshal) is putting his elbow in Bobby's mouth....

Kunstler: This is no longer a court of order, your Honor. It is a disgrace. They're assaulting the other defendants, also.

Rubin: Don't hit me in the balls, motherfucker.

Seale: This motherfucker (referring to the gag, not the marshal) is tight and it's stopping my blood.

Kunstler: Your Honor, this is an unholy disgrace to the law. I, as an American lawyer, feel a disgrace.

Foran: Created by Mr. Kunstler.

Kunstler: Created by nothing other than what you have done to this man.

Abbie Hoffman: You come down here and watch this, Judge.

Foran: May the record show that the outbursts are by the defendant Rubin.

Seale: You fascist dogs, you rotten, low-life son of a bitch.

Dellinger: Somebody go protect him.

Kunstler: Your Honor, we would like the names of the marshals. We are going to ask for a judicial investigation of the entire condition and the entire treatment of Bobby Seale.

Judge Hoffman: You may ask for anything that you want. When you begin keeping your word around here that you gave the court, perhaps things can be done.

Kunstler: I feel so ashamed.

Judge Hoffman: You should be ashamed.

At the end of the trial, this episode cost Kunstler three months of his four years and 13 days in contempt sentences. That put him ahead of Seale, who got a flat four years when Judge Hoffman mis-trialed him out of the case. It was then, just before sentencing him and evicting him, that the judge finally said, "Mr. Seale, you have a right to speak now. I will hear you."

The incredulous Seale asked, "For myself? How come I couldn't speak before?"

"This," the judge answered him in his clipped way, "is a special occasion."

Then the fact that he was about to go to jail--without even a trial--for exercising what he thought were his rights clicked inside Bobby Seale's head and the astonished man replied, "Wait a minute. You are going to attempt to punish me for attempting to speak out for myself? What kind of jive is that? What am I supposed to speak about? I still haven't got the right to defend myself.... Wait a minute, I got a right--what's the can't trying to pull now? I'm leaving? I can't stay...? I still want an immediate trial. You can't call it a mistrial. I'm put in jail for four years for nothing? I want my coat."

That was the end of it, with the defense sympathizers in the courtroom shouting, "Free Bobby! Free Bobby!"

From then on, the trial was never the same; it had become a disaster for everyone. Humane people would remember Julius Hoffman as the judge who refused Seale his most basic rights; Foran would be remembered as the prosecutor who tried to convict a bound-and-gagged black man; the worst fears of the defense had become a courtroom reality.

Still the Government slogged on with its side of the case, a side that was profuse in details that proved nothing much. Only one of its witnesses testified that any of the defendants had been seen breaking a law, and that was Froines, who was supposed to have thrown a couple of rocks. Hayden was alleged to have let the air out of a tire, but this accusation was so trivial that it became a source of embarrassment.

The Chicago convention was relived on the witness stand--complete with the stories of bags of urine and spiked whiffle balls--but there was little evidence that any of the eight, now seven, had crossed a state line with the intention of inciting anybody to toss these execrable objects. Much evidence, however, was introduced to prove that in the midst of the Chicago battling, some of the seven had said inciteful things. Hayden was quoted as telling a crowd, "If blood is going to flow, let it flow all over the city; if gas is going to be used, let that gas come down all over Chicago, not just all over us in this park; if the police are going to run wild, let 'em run wild all over the city of Chicago; if we're going to get disrupted and violated, let this whole stinking city be disrupted and violated.... Don't get trapped in some kind of large organized march which can be surrounded. Begin to find your way out of here. I'll see you in the streets."

Rubin was cited as giving some "fight-the-pigs" talks, and there were examples of Davis saying things that might be construed as incitement to riot. With Dellinger, the Government lacked not only deeds but even words and was driven to argue that their absence was the proof of his guilt: This "architect of the conspiracy," this rough old pacifist was too shrewd to say or do anything overtly incriminating. "He won't say what they planned. He is very careful," assistant prosecution counsel Richard Schultz told the jury.

Had it been a state or a municipal court and an ordinary incitement-to-riot charge, the Government might have had a pretty good case against three or four of the seven. The charge, however, was a Federal one of crossing a state line with the intent to start a riot, and the out-of-state evidence was almost nonexistent. What the Government was really doing was trying them for the street fighting, for what they might have done in Chicago, not what they might have had in mind before they got to Illinois. The Government's case said simply that the defendants were revolutionaries, insurrectionists who wanted to overthrow every institution. And to prove it, much evidence was introduced--including speeches made after the convention, when they were, if not more radical, certainly more angry.

During the proceedings and in the months afterward, many people attacked the trial as a threat to free speech, but this isn't so. Over and over, Foran emphasized that what the seven said was constitutionally protected; it was coupling their words with political actions that made what they did felonious. The Government's position appeared to be that only orthodox, two-party, Democratic/Republican politics is legal; creative politics outside the two-party structure, politics that can bait the standardbrand politicians into making fools of themselves or bloodying people's heads, is illegal. The price for having psyched out Mayor Daley and President Johnson, the price for having baited them into losing their tempers and using force against the nonparty political extemporizers was jail.

Understanding the evidence and the legal arguments doesn't help understand the trial. To do that, you must also know the little nastinesses.

In his opening statement to the jury, Kunstler received a bitter foretaste of the hostility to come:

Kunstler: We hope to prove before you that the evidence submitted by the defendants will show that this prosecution which you are hearing is the result of two motives on the part of the Government----

Schultz: Objection as to any motives of the prosecution, if the court please.

Kunstler: Your Honor, it is a proper defense to show motive.

Judge Hoffman: I sustain the objection. You may speak to the guilt or innocence of your clients, not to the motive of the Government.

Kunstler: Your Honor, I always thought that----

Schultz: Objection to any colloquies and arguments, your Honor.

Judge Hoffman: I sustain the objection, regardless of what you have always thought, Mr.Kunstler.

The lawyers for both sides were always having at one another, calling one another names--unprofessional, mouthpieces, hypocritical. Foran and Schultz were especially maddened by Kunstler's talking to the press, in violation of an Illinois district court ruling that attorneys may not comment on pending cases--a rule that many legal experts believe to be unconstitutional. There were interminable objections when Kunstler referred to the defendants by their first names. Anything that might suggest to the jury that the defendants were young and therefore forgivable irked Foran, who said, "They are not kids. Davis, the youngest one, is 29. These are highly sophisticated, educated men and they are evil men."

The judge was full of tricks that added to the conviction that he'd replaced his symbolic scales with a noose. After the prosecution had completed its presentation, he extended the court day, so that the jury had to hear much of the defense case when it was tired from hours of wrangling. He appeared to make it a denigarating specialty to mispronounce the defense's names, particularly Weinglass', who finally called him on it and got this response: "I have got a very close friend named Weinruss and I know nobody by the name of Weinrob and somehow or other the name of Weinruss stuck in my mind and it is your first appearance here."

There were long, self-justifying, self-pitying excursions of recrimination and rationalization addressed by the judge to the defendants and their counsel. Almost any request by Kunstler or Weinglass would elicit snappish, peeved responses from the bench, even the observation that it was half past noon and time for lunch: "I know, I am watching the clock. What does the man say on the TV or the radio? Leave the driving, leave the time watching to me. Mr. Kunstler, I will watch the clock for you. I will determine the time when we recess, sir. I don't need your help on that. There are some things I might need your help on, not that."

And always he worried about what the drama critics would say: "I don't try cases in the newspapers. I don't send letters to newspapers when they praise me, and they have; and I don't send letters of criticism when they criticize me adversely.... I have literally thousands of editorials back there in my chambers...that are complimentary about decisions I have made over the years.... It would have been so much easier to rise, wouldn't it? [Hoffman found the lawyers guilty of contempt for failing to sit down and the defendants guilty for failing to get up].... I am an informal person. I may sound a little starchy up here, but I don't insist on deference that some other judges do off the bench.... You know, the Solicitor General of the United States, when he argues before the Supreme Court--this is rather a humorous observation, in the light of the tailoring in this case--he is obligated under the rule of court to wear a cutaway, a morning coat and striped trousers."

Although the defense called over 100 witnesses, it wasn't able to present its case. Partly, this was because people inside the courtroon and out considered the use of such witnesses as Judy Collins, William Styron, Norman Mailer and Phil Ochs dilatory theatricality, part of the plan to subvert the judiciary. But once something may have gotten through, when Allen Ginsberg was on the stand reciting the damnation of his famous poem Howl: "I saw the best minds of my generation destroyed by madness, starving, hysterical, naked, dragging themselves through the Negro streets at dawn looking for an angry fix.... Moloch! Solitude! Filth! Ugliness! Ash cans and unobtainable dollars! Boys sobbing in armies! Children screaming under stairways! Old men weeping in the parks! Moloch! Moloch! Nightmare of Moloch! Moloch! the loveless! Moloch the heavy judger of men!" The little judge bounced in his chair and put a hand to his face; it was said in the courtroom that in New York, exorcists chanted prayers to drive the dibbuk out of him.

The poet, however, wasn't taken seriously when he explained what was working on the minds of the people camping out in Lincoln Park during the convention: "The planet...was endangered by violence, overpopulation, pollution, ecological destruction brought about by our own greed; the younger children in America...might not survive the next 30 years; it was a planetary crisis not recognized by any government...nor the politicians who were preparing for the elections.... We were going to gather together to manifest our presence over and above the more selfish elder politicians.... The desire for preservation of the...planet's form...was manifested to my mind by the great mantra from India to the preserver-god Vishnu, whose mantra is Hare Krishna, Hare Krishna, Krishna, Krishna, Hare, Hare, Rama, Hare Rama, Rama, Rama, Hare Hare."

As Ginsberg's voice filled the courtroom--which Abbie Hoffman had called "wall-to-wall bourgeois"--one of the marshals jumped to his feet and went into his jacket, as if going for his gun; and the prosecution plunged into altercations about Sanskrit and relevance until Ginsberg uttered two long, universal O-O-M-M-M-M-Ms, which brought Foran to his feet, saying, "All right, we have had a demonstration. From here on, I object."

"You haven't said that you objected," Judge Hoffman commented.

"I do after the second one," Foran replied. "I have no objection to the two OMs that we have had. However, I [don't] want it to go on all morning."

Judge Hoffman, feeling equally playful, added, "The two OMs may remain of record and he may not continue to answer in the same vein." But Ginsberg did OM a little later on--to calm the judge and the lawyers after the judge had gotten into another snit because he wasn't getting enough respect from the defense.

The use of people like Ginsberg to establish the state of mind and therefore the intent of the seven was a complete failure. The cross-examination was mostly given over to a refined form of fag baiting. Kunstler put Abbie Hoffman and Rennie Davis on the witness stand, so that they might explain their state of mind and intent. But the judge interpreted the rules of admissible evidence in the narrowest possible way. Davis' struggle to be allowed to answer the question the way he wanted resulted in 43 warnings from Judge Hoffman--and, ultimately, six months in jail.

Although the Chicago seven's political opponents use the contempt citations to show they were trying to clown and wisecrack the court into ruin, the preponderate number of citations arose out of Bobby Seale's treatment and their losing attempt to get their case on the record. Here is one example of what put Davis in jail:

Foran: The whole activities of your planning with these defendants were designed to cause the President of the United States to call out the troops to protect the convention, isn't that correct, sir?

Davis: No. The objective was to try to get rid of the troops.

Foran: I object, your Honor, to anything but no.

Davis (persisting): To try to stop the use of troops.

Judge Hoffman: I sustain the objection.... I again order the witness to answer the question and don't go beyond the question. You do hear well, don't you? You hear me?

Davis: Yes. It is just when a man destroys my meaning, I feel obligated to----

Judge Hoffman: You must conform to the rules, to the law.

Davis: I took an oath here to tell the whole truth and that's what I'm trying to do.

Judge Hoffman: And you will conform to the rules of evidence.

Davis: Are the rules of evidence in conflict with the truth?

Foran: Five hundred years of the law, your Honor, says that they help find the truth, and this is why we have them.

Kunstler: Two hundred years of the law said slavery was valid in this country.

These wrestling matches piled up time in jail for Davis--while showing the hopelessness of judicial proceedings that try to convict men for their state of mind, their opinions, their beliefs.

Having been unable to get much evidence as to intent on the record through direct testimony, the defense tried documents. Many were admitted, but the judge refused to allow into evidence the application for a permit to use Soldiers Field as a meeting place. More seriously, he disallowed a 21-page memorandum that Davis and Hayden had written before the convention. This memo spelled out various kinds of thinking about what the demonstrators might do when they got to Chicago. It said, for instance, that "A coalition of poverty-rights organizations in one region might surround the Conrad Hilton, a downtown Chicago hotel, on the morning of the 26th to greet the delegates with leaflets demanding 15 billion dollars to end poverty.... The final funeral march on the convention, beginning as the first ballot is taken, should bring 500,000 people demanding a choice on the issues of peace and justice, citizens who have to 'make the democratic process work' by pinning the delegates in the International Amphitheater until a choice is presented to the American people." As documentary evidence of intent, the memo was important, but the judge threw it out. This was too much for Davis, who blurted out, "You never read it. I was watching you. You read two pages...he didn't read the document. I watched him. He never looked at it." This cost him two more months in jail.

In ruling the way he did, the judge may have been legally correct. Lay people think of law as a clear set of rules that can be evenly applied, when, in reality, it's a large mass of technical notions and exceptions that can be used as rationalizations for decisions that are politically or socially motivated. This is what killed the defense's last line of approach, an attempt to prove an alternate theory of what happened in Chicago. As Kunstler said, "One way you can get your client off is not by proving that he's innocent but that somebody else is guilty."

Kunstler proposed to do that with Mayor Daley. "The person responsible for what happened in Chicago, whether acting alone or in concert with other people, is Mayor Richard J. Daley," he told the court."We have attempted in every way possible to state our fundamental defensive position that it was the mayor who caused the trouble, the bloodshed, the police riot and every other aspect which brings these defendants into court." So he brought Daley into court as a defense witness; but the rules prevented Kunstler from asking the hard questions that might have brought out the truth. In such circumstances, it's customary for a lawyer to have the witness declared hostile by the judge. This permits the asking of otherwise forbidden questions. Judge Hoffman wasn't buying that. He even ordered Kunstler not to tell the jury that the motion to declare Daley hostile had been refused. Kunstler did anyway, and 83 times, he asked Daley questions that Judge Hoffman ruled objectionable. That got him six more months in the lockup.

There was still one road open to Kunstler. If he could find some friendly public officials who might know what Daley had been up to and would testify to it, he could prove his theory that it was the mayor and not his clients who did the conspiring and the intending. There were three such men: Ramsey Clark, the former Attorney General; Roger Wilkins, a former Assistant Attorney General; and Wesley Pomeroy, who'd been special assistant for law-enforcement coordination under Clark. These three had dealt with Daley and his police chiefs in preparation for the convention. But Judge Hoffman refused to allow Clark to appear before the jury. Wilkins and Pomeroy he let on the witness stand but forbade any testimony about the mayor. Pomeroy's off-the-witness-stand recital of what went on might well have destroyed the prosecution's case. "The entire fiasco in Chicago," he declared, "was almost solely the responsibility of a stubborn, unwise Mayor Daley, who emasculated his police command. I went there twice before the convention as a messenger from the Attorney General, asking Daley to let somebody from the Government negotiate with somebody from the mobilization. He didn't hear the message. The one thing Mayor Daley said was that if the Justice Department really wanted to help, it could let him know when those out-of-town agitators were coming into Chicago so he could take care of them."

More contempt citations--and more time in jail--were issued as a consequence of the Ramsey Clark decision but the defense was lost, its best case never put to the jury. Nothing remained for the seven but to make their gallows speeches. Jerry Rubin called Judge Hoffman a sadist. Rennie Davis said, "We are going to turn the sons and daughters of the ruling class in this country into Viet Cong." Tom Hayden asked: "If you didn't want to make us martyrs, why did you do it? If you wanted to keep it cool, why didn't you give us a permit? You know, if you had given us a permit? You know, if you had given us a permit, very little would have happened in Chicago.... We would hardly be notorious characters if they had left us alone in the streets of Chicago. It would have been testimony to our failure as organizers." Abbie Hoffman told the court, "It's only fitting that if you went to the South and fought for voter registration and got arrested and beaten 11 or 12 times on those dusty roads for no bread; it's fitting that you be arrested and tried under a civil rights act.... I am not made to be a martyr. I tried to sign up a few years ago when I went down South. They ran out of nails. What was I going to do? So I ended up being funny."

But the end of the end came when Dellinger was being sentenced for contempt. His sports coat was smeared with some kind of white goo he'd picked up in the jailhouse where the judge had sent him after revoking his bail. "You want us to be like good Germans, supporting the evils of our decade," he was saying, while the loquacious old judge commanded, "Mr. Marshal, I will ask you to have Mr. Dellinger sit down."

Dellinger wouldn't. "You want us to stay in our place like black people were supposed to stay in their place, like poor people--"

"I will ask you to sit down," the judge said.

"Like children, like lawyers," he continued, while the judge said, "Mr. Marshal, will you please ask him to keep quiet?"

"People no longer will be quiet. People are going to speak up. I am an old man and I am just speaking feebly, but I reflect the spirit that will echo--" Dellinger persisted, now encircled by marshals, who kept glancing up at the judge for their next cue.

"Take him out," they were ordered, but the room had come apart. Natasha, Dellinger's oldest daughter, had her arms hooked onto the back of a bench and she was about to kick a marshal in the stomach. Michelle, her 13-year-old sister, was weeping, and Dellinger was crying out, "Leave my daughters alone!" There were voices screaming, "Tyrants! Tyrants!"

Kunstler, aged and radicalized by the months in this room, walked up to the lectern in front of the judge's raised bench and asked, "What are you doing to us, your Honor?"

The little judge was rigid in the leather chair that was too big for him. Across the courtroom, down on his left, he could see six or seven people fighting; and directly behind Kunstler, he could look at Rubin shouting and making the Nazi salute as he hollered, "Heil Hitler! Heil Hitler! Heil Hitler! I hope you're satisfied."

Another voice in the crowd shouted, "You mocky Hitler"; but Kunstler spoke softly, leaning forward, one hand half raised in the beckoning gesture of supplication. "My life has come to nothing," he told the judge, who pushed himself back against his chair's high back, as though he'd like to disappear through it. "You destroy me and everybody else. Put me in jail now, for God's sake, and get me out of this place." The lawyer wept as he talked. "Come to mine now. Come to mine now, Judge, please. Please. I beg you. Come to mine. Do me, too."

The marshals threw people out and calmed the room down; one on each arm, they took Dellinger and led him toward the exit. He stopped and called out, "Right on, beautiful people, black people, Vietnamese, poor people, young people, everybody fighting for liberty and justice. Right on." They took him through the doorway, but he reappeared to say, "Not to mention Latin Americans," and then he was gone.