The Trial of the Chicago 7: A Question of Allegiance

The Disrupted Trials

The problem of disruptive defendants who make orderly trials impossible demands a more philosophical jurisprudence than it has been getting. Obviously the acceptance of a court’s jurisdiction depends on one’s social allegiance altogether, and this can be taken into account. Consider first the case of the New York Panthers. Given their prohibitively high bail, the judge cannot exercise his ordinary power to impose short terms for contempt, since the defendants are in prison anyway. And psychologically, there can be no doubt that imprisonment during the crisis of a trial creates a pent-up frustration and sense of being trapped and railroaded that naturally will burst forth at any occasion to be heard. If the defendants were free on bail, at least some of this would explode outside, not in the court.

The theory of their high bail has two overt reasons and perhaps one hidden one. (1) It is said the defendants are dangerous and might carry out the conspiracy they are charged with, bombing public places. I do not know any evidence that such acts by similar defendants on bail have occurred; but it ought not to be difficult to keep such marked persons effectively under surveillance and disarmed, especially since criminal association with them would spell almost certain arrest for any accomplices.

(2) More plausibly, it is feared that the defendants might forfeit lower bail and leave the country, as Williams, Cleaver, and others have done. Why is this bad? The claim by the defendants that the court itself is political part of an oppressive System, means that they have no allegiance to its justice. Allegiance cannot be compelled. If a person feels he is not a citizen, he may reasonably choose physical exile, and it is probably political wisdom for the sovereign to allow it, with penalties — as Castro has sometimes done in Cuba, though not in the (to me) interesting cases of anarchists and “moral” offenders. Needless to say, those who opt for exile, e. g. Williams or Cleaver, might not find themselves happy outside the United States either. Implicit in the idea of bail is that the defendant has a choice, to accept the jurisdiction or pay a penalty, of property and citizenship, for leaving it. There may be exceptions when a society cannot allow this choice, but then it has given up the idea of the social contract altogether. If one cannot refuse jurisdiction, there is no longer a question of identifying with the sentence, and a jail becomes equivalent to a dungeon or cage for animals. (To be sure, all penal systems degenerate to this any way. Prisons are not a workable idea.)

(3) But the hidden motive for prohibitive bail, or trigger-happy use of the contempt power, may be to keep the defendants from political, not criminal, action on the streets. This motive actually surfaced in the trial of the Chicago Seven when Judge Hoffman threatened Dellinger with contempt for having made a political speech outside the court! And political defendants claim, justifiably or not, that a chief reason for these recent trials is to put them out of circulation and tie up their time and money. In the pretentions of the American constitution, of course, this motive has no warrant whatever; and if there is the slightest trace of it, the court with its subpoenas becomes simply a place of violent politics and the defendants are right to try to disrupt it.

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All of the above should have no connection with the concept of a “political trial” that people like Dellinger, Spock, or the Berrigans have asked for. Traditionally, a Political Trial is one where the defendants try to show that political issues of the times are relevant to the meaning of their acts, and the legal guilt or innocence of the acts depends, at least in part, on their political justification. Often, indeed, it is impossible to separate the legal and political questions even formally, as when a ”law” may be unconstitutional, against the Nuremberg judgments, or so forth.

In my opinion, the meaning of all adjudicable acts is at least partly extra-legal. During a trial, acts are always interpreted in their real social and moral contexts, otherwise there would be no point in pleading extenuating circumstances or bringing in social and psychological factors or the current state of science and art, as in M’Naghten, Leopold and Loeb, Brown, Scopes, or all censorship cases. Rather, it is implicit in the very idea of trial by a jury or peers that the indictment will be interpreted and judged, at least partly, according to substantive social and moral, and not merely formal and legal, justice. The jury is supposed to bring in its own life experience and values; and it must consist of peers in order that the defendant’s acts may be understood in the sense that they were performed. (Thus the Panthers claim that white jurors are not adequate peers.)

But if all trials, and especially trials with novel issues, depend on the social, moral, and political interpretation of the community, it is unacceptable for judges to run them as if the meaning of acts could be defined in cut-and-dried courtroom terms; but this is what happened with Spock, the Chicago Seven, and others. In any State legal system, with abstract statutes and penalties imposed from above, it is inevitable, and perhaps useful, that there is a distinction between legal justice and moral or political justice — as an anarchist, I am not so sure that it is useful — but it is monstrous to try to make this distinction absolute, to direct a  jury not to consult its life experience and values, and to prevent a jury from hearing evidence in that direction.

Political, moral, and civil libertarian defendants have always used Political Trials to address the public outside the courtroom. This is in itself a good thing, it is part of the democratic process. A man willing to risk his liberty for his beliefs has a claim to air them in. court, and the public can only profit by hearing deeply held convictions. The one disadvantage to it could be that the stump speeches may take so long as to be obstructive to the court procedure, but any judge has enough power to prevent this kind of filibuster. It is quite another matter for a judge to keep defendants from explaining themselves to the jury, including the jury’s political judgment, as part of the judicial process. The result of trying to prevent a trial from being political in this reasonable sense is to drive lively and intelligent defendants to make the court itself a place of confrontation, physical force, or tricks, not a judicial forum at all. The defendants can no longer give allegiance to the court, and we must go back to the problem of disruptive defendants that we started from.

Finally, in the midst of the courtroom uproar there is increasingly appearing a strain that is not political at all, but existentialist and religious: the middle-class young people, the witness-bearing of priests, the noise of the sons of uprooted urban poverty. This is a response of life in over-structured and dehumanized institutions; it is not aimed at the courts as such but at all authority. Naturally it ought not to shout demands for “constitutional rights” or “Power to the People” or “Socialism”­ — any constituted society would have statutes and courts — but it really makes no difference what the words are, though Abbie is unusually boring.

My own intuition, as a conservative anarchist, is that we ought to affirm Magna Carta and the Bill of Rights as among our great victories, that we have to preserve and extend, at the same time as we increasingly try to get away from States and Courts altogether. ❖