Closing Argument for the Defendants by Mr. Kunstler

MR. KUNSTLER: Ladies and Gentlemen of the jury:
    This is the last voice that you will hear from the defense.  We have no rebuttal.  This Government has the last word.
    In an introductory fashion I would just like to state that only you will judge this case as far as the facts go.  This is your solemn responsibility and it is an awesome one.
    After you have heard Mr. Schultz and Mr. Weinglass, there must be lots of questions running in your minds.  You have seen the same scenes described by two different people.  You have heard different interpretations of those scenes by two different people.  But you are the ones that draw the final inference.  You will be the ultimate arbiters of the fate of these seven men.
    In deciding this case we are relying upon your oath of office and that you will decide it only on the facts, not on whether you like the lawyers or don't like the lawyers.  We are really quite unimportant.  Whether you like the judge or don't like the judge, that is unimportant, too.  Whether you like the defendants or don't like the defendants

THE COURT: I am glad you didn't say I was unimportant.

MR. KUNSTLER: No. The likes or dislikes are unimportant.
    And I can say that it is not whether you like the defendants or don't like the defendants.  You may detest all of the defendants, for all I know; you may love all of them, I don't know.  It is unimportant.  It shouldn't interfere with your decision, it shouldn't come into it.  And this is hard to do.
You have seen a long defense here.  There have been harsh things said in this court, and harsh things to look at from your jury box.  You have seen a man bound and gagged.  You have heard lots of things which are probably all not pleasant.  Some of them have been humorous.  Some have been bitter.  Some may have been downright boring, and I imagine many were.  Those things really shouldn't influence your decision.  You have an oath to decide the facts and to decide them divorced of any personal considerations of your own, and I remind you that if you don't do that, you will be living a lie the rest of your life, and only you will be living with that lie.
    Now, I don't think it has been any secret to you that the defendants have some questions as to whether they are receiving a fair trial.  That has been raised many times.

MR. FORAN: Your Honor, I object to this.

THE COURT: I sustain the objection.

MR. KUNSTLER: They stand here indicted under a new statute.  In fact, the conspiracy, which is Count I, starts the day after the President signed the law.

MR. FORAN: Your Honor, I object to that.  The law is for the Court to determine, not for counsel to determine.

THE COURT: I sustain the objection.

MR. KUNSTLER: Your Honor, I am not going into the law.  They have a right to know when it was passed.

THE COURT: I don't want my responsibility usurped by you.

MR. KUNSTLER: I want you to know, first that these defendants had a constitutional right to travel.  They have a constitutional right to dissent and to agitate for dissent.  No one would deny that, not Mr. Foran, and not I, or anyone else.

MR. KUNSTLER: Just some fifty years ago, I think almost exactly, in a criminal court building here in Chicago, Clarence Darrow said this:
    "When a new truth comes upon the earth, or a great idea necessary for mankind is born, where does it come from?  Not from the police force, or the prosecuting attorneys, or the judges, or the lawyers, or the doctors.  Not there.  It comes from the despised and the outcasts, and it comes perhaps from jails and prisons.  It comes from men who have dared to be rebels and think their thoughts, and their faith has been the faith of rebels.
    "What do you suppose would have happened to the working men except for these rebels all the way down through history?  Think of the complacent cowardly people who never raise their voices against the powers that be.  If there had been only these, you gentlemen of the jury would be hewers of wood and drawers of water.  You gentlemen would have been slaves.  You gentlemen owe whatever you have and whatever you hope to these brave rebels who dared to think, and dared to speak, and dared to act."
    This was Clarence Darrow fifty years ago in another case.
    You don't have to look for rebels in other countries.  You can just look at the history of this country.
    You will recall that there was a great demonstration that took place around the Custom House in Boston in 1770.  It was a demonstration of the people of Boston against the people who were enforcing the Sugar Act, the Stamp Act, the Quartering of Troops Act.  And they picketed at one place where it was important to be, at the Custom House where the customs were collected.
    You remember the testimony in this case.  Superintendent Rochford said, "Go up to Lincoln Park, go to the Bandshell, go anywhere you want, but don't go to the Amphitheatre."
    That was like telling the Boston patriots, "Go anywhere You want, but don't go to the Custom House," because it was at the Custom House and it was at the Amphitheatre that the protesters wanted to show that something was terribly and totally wrong.  They wanted to show it at the place it was important, and so the seeming compliance of the City in saying n "Go anywhere you want throughout the city.  Go to Jackson Park.  Go to Lincoln Park," has no meaning.  That is an excuse for preventing a demonstration at the single place that had meaning, which was the Amphitheatre.
    The Custom House in Boston was the scene of evil and so the patriots demonstrated.  They ran into a Chicago.  You know what happened.  The British soldiers shot them down and killed five of them, including one black man, Crispus Attucks, who was the first man to die, by the way, in the American revolution.  They were shot down in the street by the British for demonstrating at the Custom House.
    You will remember that after the Boston Massacre which was the name the Colonies gave to it. all sorts of things happened in the Colonies.  There were all sorts of demonstrations---

MR. FORAN: Your Honor, I have sat here quite a while and I object to this.  This is not a history lecture.  The purpose of summation is to sum up the facts of the case and I object to this.

THE COURT: I do sustain the objection.  Unless you get down to evidence, I will direct you to discontinue this lecture on history.  We are not dealing with history.

MR. KUNSTLER: But to understand the overriding issues as well, your Honor-

THE COURT: I will not permit any more of these historical references and I direct you to discontinue them, sir.

MR. KUNSTLER: I do so under protest, your Honor.  I will get down, because the judge has prevented me from going into material that I wanted to---

MR. FORAN: Your Honor, I object to that comment.

THE COURT: I have not prevented you.  I have ruled properly as a matter of law.  The law prevents you from doing it, sir.

MR. KUNSTLER: I will get down to the evidence in this case.  I am going to confine my remarks to showing you how the Government stoops to conquer in this case.
    The prosecution recognized early that if you were to see thirty-three police officers in uniform take the stand that you would realize how much of the case depends on law enforcement officers.  So they strip the uniforms from those witnesses, and you notice you began to see almost an absence of uniforms.  Even the Deputy Police Chief came without a uniform.
    Mr. Schultz said, "Look at our witnesses.  They don't argue with the judge.  They are bright and alert.  They sit there and they answer clearly."
    They answered like automatons---one after the other, robots took the stand.  "Did you see any missiles?"
    "A barrage."
    Everybody saw a barrage of missiles.
    "What were the demonstrators doing?"
    "Screaming.  Indescribably loud."
    "What were they screaming?"
    "Profanities of all sorts."
    I call your attention to James Murray.  That is the reporter, and this is the one they got caught with.  This is the one that slipped up.  James Murray, who is a friend of the police, who thinks the police are the steadying force in Chicago.  This man came to the stand, and he wanted you to rise up when you heard "Viet Cong flags," this undeclared war we are fighting against an undeclared enemy.  He wanted you to think that the march from Grant Park into the center of Chicago in front of the Conrad Hilton was a march run by the Viet Cong, or have the Viet Cong flags so infuriate you that you would feel against these demonstrators that they were less than human beings.  The only problem is that he never saw any Viet-Cong flags.  First of all, there were none, and I call your attention to the movies, and if you see one Viet Cong flag in those two hours of movies at Michigan and Balbo, you can call me a liar and convict my clients.
    Mr. Murray, under whatever instructions were given to him, or under his own desire to help the Police Department, saw them.  I asked him a simple question: describe them.  Remember what he said?  "They are black." Then he heard laughter in the courtroom because there isn't a person in the room that thinks the Viet Cong flag is a black flag.  He heard a twitter in the courtroom.  He said, "No, they are red."
    Then he heard a little more laughter.
    Then I said, "Are they all red?"
    He said, "No, they have some sort of a symbol on them."
    "What is the symbol?"
    "I can't remember."
    When you look at the pictures, you won't even see any black flags at Michigan and Balbo.  You will see some red flags, two of them, I believe, and I might say to you that a red flag was the flag under which General Washington fought at the Battle of Brandywine, a flag made for him by the nuns of Bethlehem.
    I think after what Murray said you can disregard his testimony.  He was a clear liar on the stand.  He did a lot of things they wanted him to do.  He wanted people to say things that you could hear, that would make you think these demonstrators were violent people.  He had some really rough ones in there.  He had, "The Hump Sucks," "Daley Sucks the Hump"---pretty rough expressions.  He didn't have "Peace Now." He didn't hear that.  He didn't give you any others.  Oh, I think he had "Charge.  The street is ours.  Let's go."
    That is what he wanted you to hear.  He was as accurate about that as he was about the Viet Cong flag, and remember his testimony about the whiffle balls.  One injured his leg.  Others he picked up.  Where were those whiffle balls in this courtroom?
    You know what a whiffle ball is.  It is something you can hardly throw.  Why didn't the Government let you see the whiffle ball?  They didn't let you see it because it can't be thrown.  They didn't let you see it because the nails are shiny.  I got a glimpse of it.  Why didn't you see it?  They want you to see a photograph so you can see that the nails don't drop out on the photograph.  We never saw any of these weapons.  That is enough for Mr. Murray.  I have, I think, wasted more time than he is worth on Mr. Murray.
    Now, I have one witness to discuss with you who is extremely important and gets us into the alleged attack on the Grant Park underground garage.
    This is the most serious plan that you have had.  This is more serious than attacking the pigs, as they tried to pin onto the Yippies and the National Mobe.  This is to bomb.  This is frightening, this concept of bombing an underground garage, probably the most frightening concept that you can imagine.
    By the way, Grant Park garage is impossible to bomb with Molotov cocktails. It is pure concrete garage.  You won't find a stick of wood in it, if you go there.  But, put that aside for the moment.  In a mythical tale. it doesn't matter that buildings won't burn.

February 13, 1970

    In judging the nonexistence of this so-called plot, you must remember the following things.
    Lieutenant Healy in his vigil, supposedly, in the garage, never saw anything in anybody's hands, not in Shimabukuro's, whom he says he saw come into the garage, not in Lee Weiner's hands, whom he said he saw come into the garage, or any of the other four or five people whom he said he saw come into the garage.  These people that he said he saw come into the garage were looking, he said, in two cars.  What were they looking into cars for?  You can ask that question.  Does that testimony make any sense, that they come in empty-handed into a garage, these people who you are supposed to believe were going to fire bomb the underground garage?
    Just keep that in mind when you consider this fairy tale when you are in the jury room.
    Secondly, in considering it you have the testimony of Lieutenant Healy, who never saw Lee Wiener before.  You remember he said "I never saw him before.  I had looked at some pictures they had shown me."
    But he never had seen him and he stands in a stairwell behind a closed door looking through a one-foot-by-one-foot opening in that door with chicken wire across it and a double layer of glass for three to four seconds, he said, and he could identify what he said was Lee Wiener in three to four seconds across what he said was thirty to forty yards away.

MR. FORAN: Your Honor, I object to "three or four seconds." It was five minutes.

MR. KUNSTLER: No, sir.  The testimony reads, your Honor, that he identified him after three or four seconds and if Mr. Foran will look---

MR. FORAN: Then he looked at him for five minutes.

MR. KUNSTLER: He identified him after three or four seconds.

THE COURT: Do you have the transcript there?

MR. FORAN: Your Honor, I would accept that.  He identified him immediately but he was looking at him for five minutes.

MR. KUNSTLER: I just think you ought to consider that in judging, Lieutenant Healy's question.  This officer was not called before the grand jury investigating that very thing.  And I think you can judge the importance of that man's testimony on whether he ever did tell the United States Attorney anything about this in September of 1968.
    I submit he didn't because it didn't happen.  It never happened.  This is a simple fabrication.  The simple truth of the matter is that there never was any such plot and you can prove it to yourselves.  Nothing was ever found, there is no visible proof of this at all.  No bottles.  No rags.  No sand.  No gasoline.  It was supposed to be a diversionary tactic, Mr. Schultz told you in his summation.  This was a diversionary tactic.  Diversionary to what?  This was Thursday night.
    If you will recall, the two marches to the Amphitheatre that got as far as 16th and 18th streets on Michigan had occurred earlier.  The only thing that was left was the Downers Grove picnic.  It was a diversionary operation to divert attention from the picnic at Downers Grove.  It was diversionary to nothing.  The incident lives only in conversations, the two conversations supposedly overheard by Frapolly and Bock, who are the undercover agents who were characterized, I thought, so aptly by Mr. Weinglass.
    Now just a few more remarks.  One, I want to tell you that as jurors, as I have already told you, you have a difficult task.  But you also have the obligation if you believe that these seven men are not guilty to stand on that and it doesn't matter that other jurors feel the other way.  If you honestly and truly believe it, you must stand and you must not compromise on that stand.

MR. FORAN: Your Honor, I object to that.  Your Honor will instruct the jury what their obligations are.

THE COURT: I sustain the objection.  You are getting into my part of the job.

MR. KUNSTLER: What you do in that jury room, no one can question you on.  It is up to you.  You don't have to answer as to it to anybody and you must stand firm if you believe either way and not

MR. FORAN: Your Honor, I object to that.

THE COURT: I sustain the objection.  I told you not to talk about that, Mr. Kunstler.

MR. KUNSTLER: I think I have a right to do it.

THE COURT: You haven't a right when the Court tells you not to and it is a matter of law that is peculiarly my function.  You may not tell the jury what the law is.

MR.  KUNSTLER: Before I come to my final conclusion, I want to thank you both for myself, for Mr. Weinglass, and for our clients for your attention.  It has been an ordeal for you, I know.  We are sorry that it had to be so.  But we are grateful that you have listened.  We know you will weigh, free of any prejudice on any level, because if you didn't, then the jury system would be destroyed and would have no meaning whatsoever.  We are living in extremely troubled times, as Mr. Weinglass pointed out.  An intolerable war abroad has divided and dismayed us all.  Racism at home and poverty at home are both causes of despair and discouragement.  In a so-called affluent society, we have people starving, and people who can't even begin to approximate the decent life.
    These are rough problems, terrible problems, and as has been said bv everybody in this country, they are so enormous that they stagger the imagination.  But they don't go away by destroying their critics.  They don't vanish by sending men to jail.  They never did and they never will.
    To use these problems by attempting to destroy those who protest against them is probably the most indecent thing that we can do.  You can crucify a Jesus, you can poison a Socrates, you can hand John Brown or Nathan Hale, you can kill a Che Guevara, you can jail a Eugene Debs or a Bobby Seale.  You can assassinate John Kennedy or a Martin Luther King, but the problems remain.  The solutions are essentially made by continuing and perpetuating with every breath you have the right of men to think, the right of men to speak boldly and unafraid, the right to be masters of their souls, the right to live free and to die free.  The hangman's rope never solved a single problem except that of one man.
    I think if this case does nothing else, perhaps it will bring into focus that again we are in that moment of history when a courtroom becomes the proving ground of whether we do live free and whether we do die free.  You are in that position now.  Suddenly all importance has shifted to you---shifted to you as I guess in the last analysis it should go, and it is really your responsibility, I think, to see that men remain able to think, to speak boldly and unafraid, to be masters of their souls, and to live and die free.  And perhaps if you do what is right, perhaps Allen Ginsberg will never have to write again as he did in "Howl," "I saw the best minds of my generation destroyed by madness," perhaps Judy Collins will never have to stand in any Courtroom again and say as she did, "When will they ever learn? When will they ever learn?"