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?"