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IN RE DELLINGER

December 6, 1973

IN THE MATTER OF DAVID T. DELLINGER ET AL.


The opinion of the court was delivered by: Gignoux, District Judge.

  OPINION AND ORDER OF THE COURT

This case arose from the 1969 trial of the so-called "Chicago 7," five of whom were found guilty of violations of the 1968 Federal Anti-Riot Act (18 U.S.C. § 2101) after a four and a half month jury trial.*fn1 At the conclusion of the trial, the trial judge, acting under Fed.R.Crim.P. 42(a), summarily convicted the defendants and their two trial attorneys (the nine original defendants herein) on 159 specifications of contempt of court, in violation of 18 U.S.C. § 401(1).*fn2 The contempt sentences ranged from two months and 18 days for defendant Weiner to four years and 13 days for attorney Kunstler. On May 11, 1972, the Court of Appeals reversed all the contempt convictions and remanded 141 of the specifications for trial before another judge. In re Dellinger, 461 F.2d 389 (17th Cir. 1972).*fn3

Fifty-two of the remanded contempt charges against the present defendants came on for trial before the undersigned,*fn4 sitting without a jury,*fn5 on October 29, 1973. At the conclusion of the government's case, which consisted solely of the official transcript of the Anti-Riot Act trial, the Court dismissed two of the specifications and acquitted the defendants of 24 others. This removed from the trial defendants Lee T. Weiner and John R. Froines.

After a four and one-half week trial, the Court has now received the evidence and heard argument on the issues of culpability, extenuation and mitigation (see Seale, 461 F.2d at 372; Dellinger, 461 F.2d at 397) with respect to the 26 remaining specifications against defendants David T. Dellinger, Rennard C. Davis, Thomas E. Hayden, Abbott H. Hoffman, Jerry C. Rubin, and their two trial counsel, defendants William M. Kunstler and Leonard I. Weinglass.*fn6 The presently relevant evidence consists in main part of the official transcript of the Anti-Riot Act trial (some 23,000 pages), supplemented by selected portions of the court reporter's tape recordings of the trial and the testimony of the defendants, lawyers, witnesses, deputy marshals, members of the press and other spectators who were present at various times during the trial.

The Court's findings of fact and conclusions of law are included in the following opinion. Fed.R.Crim.P. 23(c).

I

CULPABILITY

With respect to each of the 26 contempt specifications presently before the Court, the Court is called upon to determine whether the evidence establishes beyond a reasonable doubt all elements of the crime of contempt charged to the defendant in that specification. Seale, 461 F.2d at 372. In making that determination, the Court is governed by the legal standards set forth in the two opinions of the Court of Appeals for the Seventh Circuit remanding the contempt proceedings against the present defendants and those against their former codefendant Seale, In re Dellinger, supra (hereinafter Dellinger); United States v. Seale, supra (hereinafter Seale), as those standards have been further developed in two subsequent opinions in which that court has tested the sufficiency of criminal contempt convictions. In re Chase, 468 F.2d 128 (7th Cir. 1972) (hereinafter Chase); Robson v. Oliver, 470 F.2d 10 (7th Cir. 1972) (hereinafter Oliver). See also Robson v. Malone, 412 F.2d 848 (7th Cir. 1969).

A. Non-Lawyer Defendants. With respect to the non-lawyer defendants, the Court of Appeals has made clear in Seale that four elements are required to support a criminal contempt conviction under 18 U.S.C. § 401(1).*fn7 See generally Seale, 461 F.2d at 366-371.

(1) First, the conduct in question must be "in the court's presence or so proximate that it obstructs the administration of justice." Id. at 367.

Here, it is undisputed that the conduct charged took place in the court's presence.

(2) Second, the conduct at issue must constitute "misbehavior."

The Court of Appeals has defined "misbehavior" as "conduct inappropriate to the particular role of the actor, be he judge, juror, party, witness, counsel or spectator," the role of each having been "molded to insure that a judicial proceeding is orderly, dignified, and confined to a rational search for truth in the context of defined legal issues." Id. at 366-367. The fundamental principle is that "there must be silence except as the orderly conduct of business calls for speech." Id. at 367 (quoting from Robson v. Malone, supra, 412 F.2d at 850).

(3) Third, the alleged contemnor must have acted with the requisite intent.

The Court of Appeals has defined the minimum required intent as "a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful." Seale, 461 F.2d at 368. Thus, proof of a specific intent to obstruct justice is unnecessary to establish the requisite intent. Id. at 368-369. A defendant cannot be cited for contempt for borderline conduct, unless he has been first warned that such conduct will be regarded as contumacious. Id. at 366.*fn8 Conduct depicted in the trial transcript, without more, may itself sufficiently indicate intent to satisfy the government's burden of proof on this issue. Id. at 369. And finally, the defendant's motivation will not justify his misbehavior; "if his misbehavior was contemptuous within the meaning of the statute, I agree that it could not be excused by a religious or other conscientious motivation." Chase, 468 F.2d at 140 (Stevens, J., dissenting).

(4) Fourth, the conduct in question must amount to an "actual and material" obstruction of the administration of justice. Seale, 461 F.2d at 369.

The Court of Appeals has rejected a standard which would make punishable "any interruption" which "diverts the judge's attention from the orderly dispatch of the trial." Idem. It has stated, however, that "the seriousness of the misbehavior bears on what conduct may be found materially obstructive." Idem. Recognizing that "obstruction is an elusive concept which does not lend itself to general statements," Idem., the Court of Appeals has nevertheless delineated certain types of conduct which do and do not rise to the level of obstruction:

  (i) "Mere disrespect or affront to the judge's
  sense of dignity" is not alone sufficient;
  however, "at some point disrespect and insult
  become actual and material obstruction."
  Id. at 369-370. "A showing of imminent prejudice to
  a fair and dispassionate proceeding is, therefore,
  necessary to support a contempt based upon mere
  disrespect or insult." Id. at 370. In determining
  whether the disrespectful remarks so imperil the
  proceeding, the reasonably to be expected reactions
  of those in the courtroom to the words or acts
  under scrutiny are relevant," and "the test of
  cotumaciousness of words spoken during a court
  proceeding is their effect as contemporaneously
  understood by those who heard the words spoken in
  the courtroom. This includes the judge as well as
  other persons present." Idem. (quoting from
  Parmelee Transp. Co. v. Keeshin, 292 F.2d 806, 810
  (7th Cir. 1961)).
  (ii) The manner in which insulting remarks are
  spoken may raise otherwise non-obstructive
  remarks to the level of an obstruction.
  Seale, 461 F.2d at 370. Furthermore, the delays
  caused by such remarks or other misbehavior may be
  sufficient to constitute a material obstruction,
  and thus "if a not insubstantial delay is entirely
  unnecessary and the misconduct serves, for
  instance, solely to vent the speaker's spleen, the
  requisite obstruction would be present." Idem.
  Differences in language patterns between different
  social, ethnic, political groups are, of course,
  relevant to the issue of intent. Idem.
  (iii) "Failure to heed the directive of the Court
  to desist from arguing, to sit down, or to remain
  quiet may indeed constitute an actual material
  obstruction to the administration of justice."
  Id., 461 F.2d at 371. "A certain amount of leeway
  must be allowed. But where the directive is clear,
  the judge's insistence on obedience is not undercut
  by his further rejoinder, and the party directed
  understands what is being asked of him, he must
  obey." Idem.
  (iv) "Where there is legally adequate
  representation and no pressing need for the
  litigant to interject himself into the
  proceedings, this Court is hesitant to find as a
  matter of law that any such interjection did not
  rise to the level of an obstruction."
  Dellinger, 461 F.2d at 401.

Finally, of particular importance to the present case are two points which the Court of Appeals has repeatedly emphasized:

    (1) The Court of Appeals has made clear that
  "impropriety on the part of the trial judge
  cannot justify or excuse contemptuous conduct";
  judicial error, judicial or prosecutorial
  misconduct, and judicial or prosecutorial
  provocation are to be considered only as
  extenuating and mitigating circumstances.
  Dellinger at 401; Seale, 461 F.2d at 361-363.
    (2) The Court of Appeals has further made clear
  that "[t]he standards of proper courtroom decorum
  are not altered and should not be applied
  differently because a trial may be characterized
  as political or because improprieties may be said
  to spring forth as if a `natural human
  response.'" Seale at 367. "[T]he court

  is not a public hall for the expression of views,
  nor is it a political arena or a street. It is a
  place for trial of defined issues in accordance
  with law and rules of evidence, with standards of
  demeanor for court, jurors, parties, witnesses
  and counsel." Dellinger at 461 F.2d 401 (quoting
  from Katz v. Murtagh, 28 N.Y.2d 234, 240, 321
  N.Y.S.2d 104, 269 N.E.2d 816, 820 (1971)).

Applying the foregoing standards to the contempt specifications against the non-lawyer defendants, the Court finds that, for the reasons to be stated, these defendants are not guilty of the following charges:

Davis II, Hayden III, Hoffman II (October 30)

On the afternoon of October 29, after five weeks of trial, the trial judge ordered Seale bound and gagged. This authorized but drastic step was brought on by Seale's persistent efforts to represent himself in the absence of trial counsel of his choice.*fn9

On the morning of October 30, the marshals carried Seale into the courtroom in a chair with a massive gag covering most of his face and with his arms and legs strapped to the chair. Mr. Weinglass was cross-examining the witness Frappoly and interrupted his cross-examination to call the judge's attention to Seale, who was groaning, attempting to communicate through his gag, and apparently in considerable pain. The judge excused the jury and directed the marshals to determine whether Seale needed assistance. Several marshals approached Seale's chair. A scuffle ensued in which the chair tipped over, apparently into the first row of temporary press seats in the well of the courtroom.*fn10 Pandemonium broke out, with counsel, defendants, reporters and spectators on their feet. At this point, Mr. Kunstler approached the lectern and addressed the judge in the language charged in Kunstler I. The court then recessed. When the jury returned to the courtroom, Mr. Weinglass stated it would be impossible for him to continue his cross-examination, with Seale bound and gagged in the courtroom. He requested that the jury be polled as to whether they felt the trial could proceed. The jury was again excused. After extended argument and angry colloquy between the judge and prosecutors, on the one hand, and defense counsel on the other, the motion was denied,*fn11 and the jury returned to the courtroom. Seale was still trying to be heard through his gag, and the judge ordered him to refrain from making any noise. At this point, Davis rose from his seat at the defense table and made the remarks set forth in Davis II. The jury was again excused. Seale had apparently loosened his gag sufficiently so that he was able to speak, the marshals moved in to adjust his bindings, and there ensued the colloquy set forth in Hayden III and Hoffman II. Shortly after these events, the court recessed the morning session.*fn12

The essence of the charge against the defendants in these specifications is that their comments "fanned the flames" of disorder in the courtroom and caused such a disruption of the proceedings as materially to obstruct the administration of justice. But the official transcript, the tapes and the testimony of eyewitnesses demonstrate that the trial proceedings had so disintegrated on the morning of October 30 that no judicial proceeding could fairly be said to be in progress.*fn13 The record further shows that the principal cause of this disintegration was the appalling spectacle of a bound and gagged defendant and the marshals' efforts to subdue him. The evidence does not establish beyond a reasonable doubt that the conduct charged to these defendants in these specifications was the cause of the breakdown of the proceedings or occasioned an actual and material obstruction of the administration of justice.

Dellinger III, Hoffman IV (November 26)

On the morning of November 26, before the jury was called into the courtroom, Mr. Weinglass argued in support of a motion for a writ of habeas corpus ad testificandum for the production of one John Sinclair, in prison in Michigan, to testify on behalf of the defendants. After extended argument, the judge read into the record his opinion denying the motion. Mr. Kunstler, stating that the defendants regarded Sinclair as a key witness and were extremely disturbed by the denial of the motion, requested a recess so that they might consult. The court denied the request for a recess, and Dellinger made the remarks attributed to him in Dellinger III. Shortly thereafter, the jury was brought into the courtroom. The judge directed the government attorneys to call their next witness, but a short delay ensued as the witness was not immediately available. While the court was waiting for the witness, Mr. Kunstler renewed his request for a recess, which was again denied by the judge. At this point, Hoffman interjected the comments set forth in Hoffman IV. Once again, Mr. Kunstler renewed his request for a recess and the request was denied. The government witness then arrived in the courtroom, and the examination proceeded.

The record does not show that the conduct charged to these defendants in these specifications, while clearly misbehavior, caused any such delay or other disruption of the proceedings as to constitute an actual and material obstruction of the administration of justice.

Davis V, Hoffman V, Rubin IV (February 4)

At the end of the afternoon session on February 4, the judge excused the jury, but asked the parties and counsel to remain. He then read a brief ruling into the record and announced that he was terminating Dellinger's bail because of his use in the courtroom of "vile and insulting language." (See Dellinger X). Mr. Kunstler requested an opportunity to argue the question. The judge denied argument. This event prompted an outburst from the spectators.*fn14 The marshals started to remove people from the courtroom, and pandemonium broke out. At this point, Mr. Kunstler interrupted his attempt to argue the revocation of Dellinger's bail, and there ensued the colloquy, participated in by Davis, Hoffman and Rubin, which forms the substance of Davis V, Hoffman V and Rubin IV. (See also Kunstler VIII). The marshals eventually cleared the courtroom, and the judge proceeded to another case.

Applying the standards which have been set forth above to the contempt specifications against the non-lawyer defendants, the Court finds that, for the reasons to be stated, these defendants are guilty of the following charges:

Dellinger IV (December 9)

On the afternoon of December 9, in the absence of the jury, the judge interrupted a colloquy with counsel to note that certain of the defendants, particularly Dellinger, were making noises. Dellinger denied that he had made a single noise. When the judge persisted in the accusation, Dellinger responded with the remarks attributed to him in Dellinger IV, calling the judge "a liar," "a facist court," "absolutely irresponsible" and "dishonest." At the conclusion of Dellinger's remarks, Mr. Kunstler asserted Dellinger's right to deny a false accusation. A brief colloquy ensued and the jury was recalled to the courtroom.

The record does not permit the Court to find beyond a reasonable doubt that Dellinger had made noises as charged by the judge.*fn15 But, even if the judge was mistaken and the false accusation justified Dellinger's denial, his vilification of the judge was an excessive and wholly unwarranted response, which could only have served "to vent the speaker's spleen." In light of the extent of his comments and their offensive character, it is clear that he knew or should reasonably have been aware that his conduct was wrongful. The record further shows that this interruption of the legal argument in which the judge and counsel were engrossed so disrupted the course of the proceedings that an unnecessary and not insubstantial delay ensued. The Court is compelled to conclude that the conduct charged to Dellinger in this specification constituted misbehavior in the presence of the court demonstrating the requisite intent and arising to the level of an actual and material obstruction of the administration of justice.

Dellinger V (December 15), Dellinger VI (December 30),
    Dellinger VII (January 12), Dellinger VIII (January 14),
    Dellinger IX (January 23), Dellinger X (February 4)

Dellinger V. On the afternoon of December 15, with the jury present in court, Mr. Weinglass was examining the witness MacKenzie. The judge interrupted an argument on the admissibility of an exhibit to ask the marshals to remove from the courtroom Mr. Stuart Ball, Jr. for laughing at the judge. Ball was a young lawyer who, although not formally appearing as counsel, was assisting in the defense effort.*fn16 Mr. Weinglass stated that Ball did not laugh, and Hoffman and Davis both indicated that they had laughed. The judge again directed the marshals to remove Ball. There then ensued the colloquy set forth in Dellinger V, in which Dellinger termed the removal of Ball "an injustice," accused the judge of lying and of being "very prejudiced and unfair," and called the judge "the assistant prosecutor or maybe the chief prosecutor." Disorder, punctuated with cheers of "Right on" resulted from the spectators.

Dellinger VI. On the morning of December 30, during the direct examination of defendant Hoffman, the jury being present in court, the judge sustained a government objection to a question asked by Mr. Weinglass. Dellinger reacted with a loud groan and sigh, which attracted the attention of a marshal. There ensued a colloquy between the court, counsel and Dellinger, in which Dellinger repeatedly expressed his disgust with the court's ruling and his contempt for the "dishonesty" of the court's process. This colloquy is the subject matter of Dellinger VI.

Dellinger VII. On the afternoon of January 12, the jury not being present, the judge sustained a government objection to a defense exhibit, and Dellinger commented, "Oh, ridiculous." Although apparently made to Froines at the defense table, the remark was overheard by the judge and precipitated the colloquy set forth in Dellinger VII, in which Dellinger called the judge "a hypocrite," again accused the judge of unfairness and of discrediting the whole system of justice, and continued speaking after the judge ordered him to remain quiet.

Dellinger VIII. On January 14, during the redirect examination of the witness Edmundson, the jury being present, the judge sustained government's objection to a question asked of the witness by Mr. Weinglass. Apparently someone at the defense table laughed, and there ensued the colloquy set forth in Dellinger VIII, during the course of which Dellinger repeatedly called the judge a liar and refused to be quiet after the judge directed him to sit down. At the conclusion of Dellinger's remarks, spectators and others applauded, and there was further colloquy between the judge, the defendants and their counsel before Mr. Weinglass resumed his questioning of the witness.

Dellinger IX. On the morning of January 23, during the direct examination of defendant Davis, the jury being present, the judge sustained the government's objection to a defense exhibit. Argument over the judge's ruling precipitated a motion by Mr. Kunstler for a mistrial.*fn17 The judge's denial of the motion resulted in the colloquy set forth in Dellinger IX, during the course of which Dellinger accused the court of "force and violence," of "inciting a riot" and of "hypocrisy"; again called the judge "the chief prosecutor"; stated there was "no pretense of fairness" in the court; and refused to be quiet after the judge repeatedly ordered him to sit down. Disorder broke out in the courtroom. The marshals removed several spectators, and there was substantial further colloquy between the judge, the defendants and their counsel before the examination of the witness was resumed.

Dellinger X. On the morning of February 4, during the direct examination of the government's rebuttal witness Riordan, the jury being present, the witness testified to alleged activity of Dellinger. This prompted the barnyard epithet from Dellinger and the further colloquy set forth in Dellinger X. During the course of the colloquy, Dellinger stated that the witness' testimony was "an absolute lie," called the prosecuting attorney "a snake" and a liar, and accused the judge of prejudice. Shouts of "Damn right" and "Right on" ensued from the spectators. All comments attributed to this defendant in this specification, other than the last one, were made before the jury had departed the courtroom.

On each of the occasions which are the subject of the foregoing specifications, Dellinger was adequately represented by counsel and had no reason to interject himself into the proceedings. He admits that the judge had repeatedly warned the defendants to speak only through their lawyers and that he was speaking in direct violation of the court's directives.*fn18 Thus, his unwarranted participation constituted misbehavior, which, by his own admission, he knew was wrongful. The evidence further establishes that on each occasion his comments occasioned an entirely unnecessary and not insubstantial delay in the proceedings and that his vilification of the judge could only have served "to vent the speaker's spleen." The record clearly shows that the conduct charged to Dellinger in each of these specifications constituted misbehavior in the presence of the court with the requisite intent and rose to the level of an actual and material obstruction of the administration of justice.

Hoffman VI, Rubin V (February 5)

The morning session on February 5 opened with an extended argument by Mr. Weinglass, in the absence of the jury, in support of a motion to reinstate Dellinger's bail. The judge's statement that he had been very patient with defendants and their counsel during the nearly five and one-half months of the trial prompted the remarks attributed to Rubin in Part I of Rubin V. Shortly thereafter, the judge terminated the argument before Mr. Weinglass had concluded and denied the motion. Following a brief colloquy, in which Mr. Kunstler joined, Hoffman and Rubin interjected the comments attributed to them in Part I of Hoffman VI and Part II of Rubin V. The jury was then returned, and government counsel completed the direct examination of the rebuttal witness Lawyer. Prior to cross-examination of the witness the jury was excused so that defense counsel might examine Jencks Act material. While this was being done, Mr. Weinglass attempted to renew his argument for Dellinger's reinstatement to bail. The judge refused to hear further argument from either Mr. Weinglass or Mr. Kunstler and ordered both to sit down. At this juncture, Hoffman and Rubin made the remarks attributed to them in Part II of Hoffman VI and Part III of Rubin V. Shortly thereafter, when the judge refused to sign the written order revoking Dellinger's bail, Rubin made the further comment charged to him in Part IV of Rubin V. The morning session closed with the comments attributed to these defendants in Part III of Hoffman VI and Part V of Rubin V.

Hoffman and Rubin were adequately represented by counsel, and they had no reason to interject themselves into the proceedings. The judge had repeatedly warned both that they were to speak only through counsel. In light of the unwarranted and vilifying character of their remarks, these defendants clearly knew or should reasonably have been aware that their conduct was wrongful, and the record plainly discloses that their persistent interjections occasioned a substantial delay in the progress of the proceedings. The conclusion is inescapable that the conduct charged to Hoffman and Rubin in these specifications constituted outrageous misbehavior in the presence of the court, that the defendants acted with the requisite intent, and that their conduct rose to the level of an actual and material obstruction of the administration of justice.

Hoffman VII, Rubin VI (February 6)

On February 6, shortly after the morning session of court was called to order, the jury not being present, Hoffman and Rubin entered the courtroom wearing judicial robes to which were attached six-pointed Jewish stars. Shortly thereafter, while leaving the courtroom during a recess, Hoffman removed his robes, dropped them to the floor and walked over them. Underneath the robes he was wearing a Chicago policeman's shirt. Both defendants testified that their conduct was "guerrilla theater" and "symbolic communication" of their contempt for the judge and the judicial process, as well as their view that judicial robes were simply a cloak for police brutality.

Concededly, the record does not disclose that the conduct charged to these defendants in these specifications caused any substantial disruption of the proceedings. However, as the Court of Appeals has stated, "the seriousness of the misbehavior bears on what conduct may be found materially obstructive." Seale, 461 F.2d at 369. The conduct charged here was so flagrant, so outrageous, and so subversive of both respect for the court and the integrity of the judicial process as to rise to the level of an actual and material obstruction of the administration of justice. The transcript further discloses that the conduct occasioned an entirely unnecessary and not insignificant delay in the proceedings. From the entire record, the conclusion is inescapable that the conduct charged to Hoffman and Rubin in these specifications constituted clear misbehavior in the presence of the court, that these defendants knew or should reasonably have been aware that their conduct was wrongful, and that their conduct constituted an actual and material obstruction of the administration of justice.

B. Lawyer Defendants. With respect to each of the contempt specifications against the lawyer defendants, the Court must determine whether the evidence establishes beyond a reasonable doubt that the defendant's conduct constituted misbehavior with the requisite intent in the presence of the court which rose to the level of an actual and material obstruction of the administration of justice. The essential elements of the crime of contempt as they have been defined by the Court of Appeals in Seale apply. Dellinger, 461 F.2d at 397; Oliver, 470 F.2d at 12. It must "`clearly be shown' from the record that . . . [the attorney's] conduct rose to the level of contemptuous 'misbehavior' which 'obstructed' the judge in performance of judicial duty." Oliver at 12; Dellinger, 461 F.2d at 397. See also In re McConnell, 370 U.S. 230, 234, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1961). In addition,

  where, as here, the conduct complained of is that
  of an attorney engaged in the representation of a
  litigant, the search for these essential elements
  of the crime of contempt must be made with full
  appreciation of the contentious role of trial
  counsel and his duty of zealous representation of
  his client's interests. Dellinger, 461 F.2d at 397;
  Oliver, 470 F.2d at 12.

In dealing with the conduct of attorneys, in both Dellinger and Oliver, the court also quoted with approval the language of the Supreme Court in McConnell, supra, 370 U.S. at 236, 82 S.Ct. 1288, 8 L.Ed.2d 434:

  [W]hile we appreciate the necessity for a judge
  to have the power to protect himself from actual
  obstruction in the courtroom . . . it is also
  essential to a fair administration of justice
  that lawyers be able to make honest good-faith
  efforts to present their clients' cases. An
  independent judiciary and a vigorous, independent
  bar are both indispensable parts of our system of
  justice. To preserve the kind of trials that our
  system envisages, Congress has limited the
  summary

  contempt power vested in courts to the least
  possible power adequate to prevent actual
  obstruction of justice. Dellinger, 461 F.2d at 397;
  Oliver, 470 F.2d at 13.

With respect to the requisite intent, the Court of Appeals has further stated that attorneys may be ". . . persistent, vociferous, contentious, and imposing, even to the point of appearing obnoxious, when acting in their client's behalf," Dellinger, 461 F.2d at 400, and that ". . . an attorney possesses the requisite intent only if he knows or reasonably should be aware in view of all the circumstances, especially in the heat of controversy, that he is exceeding the outermost limits of his proper role and hindering rather than facilitating the search for truth." Idem.

In sum, attorneys must be given "great latitude" and "extreme liberality" in the area of vigorous advocacy, and doubts in delineating the line between vigorous advocacy and obstruction are to be resolved in favor of advocacy.

Dellinger at 398; Oliver, 470 F.2d at 13. As the Supreme Court stated in McConnell,

  The arguments of a lawyer in presenting his
  client's case strenuously and persistently cannot
  amount to a contempt of court so long as the
  lawyer does not in some way create an obstruction
  which blocks the judge in the performance of his
  judicial duty. 370 U.S. at 236, 82 S.Ct. at 1292.

In Dellinger and Oliver, the Court of Appeals has set forth certain types of conduct by attorneys which do and do not rise to the level of contemptuous misbehavior constituting an actual and material obstruction. See generally Dellinger, 461 F.2d at 397-401; Oliver, 470 F.2d at 13-14:

    (1) Attorneys may not persist in continuing
  argument after express orders by the trial judge
  to cease. Dellinger, 461 F.2d at 398. "[T]he
  necessity for orderly administration of justice
  compels the view that the judge must have the power
  to set limits on argument." Id. at 399. Nor is good
  faith an absolute defense to a contempt citation
  for persistent argument, even though the attorney
  has not been given a reasonable opportunity to be
  heard. Dellinger at 398. On the other hand, ". . .
  without an actual obstruction, there can be no
  contempt." Idem. "And where the judge is arbitrary
  or affords counsel inadequate opportunity to argue
  his position, counsel must be given substantial
  leeway in pressing his contention. . . ." Id. at
  399.
    (2) When, despite a court directive to cease
  argument, the trial judge adds a rejoinder or a
  statement which calls for a response by the
  attorney," an invited, additional response cannot
  subsequently be viewed as a contemptuous
  violation of the order." Idem.
    (3) An attorney is permitted to reply when the
  judge has charged him with professional
  misconduct; he ". . . may insist upon being heard
  in his own defense so long as his response is
  respectful." Idem. But, while the attorney may
  respond to such an attack, "[e]ven if the judge's
  accusation be unfounded, or ill-tempered, it does
  not protect counter-misbehavior. . . . " Idem.
    (4) An attorney has no affirmative obligation
  to restrain his client from disruptive conduct;
  he commits contempt, however, if he encourages
  disruptive behavior by a client or ". . . fans
  the flames of existing frictions. . . ."
  Id. at 399-400. Unless the attorney's conduct is
  the occasion for disruptive conduct by others in
  the courtroom, the attorney cannot be held
  responsible for that conduct. Oliver, 470 F.2d at
  13.

Finally, it must be reiterated that, as the Court of Appeals made clear in both Seale and Dellinger, ". . . impropriety on the part of the trial judge cannot justify or excuse contemptuous conduct. However, judicial (or prosecutorial) provocation is to be considered . . . in extenuation of the offense and in mitigation of any penalty to be imposed." Dellinger, 461 F.2d at 401. See Seale, 461 F.2d at 361-364.

Bearing in mind the "great latitude" and "extreme liberality" afforded trial counsel when acting in their client's behalf, and resolving any doubts in favor of vigorous advocacy, the Court finds that, for the reasons to be stated, the defendants Weinglass and Kunstler are not guilty of the following charges:

Kunstler I (October 30)

This specification charges Mr. Kunstler with failing to assist the court in maintaining order and with encouraging further disorder in the courtroom on the second day when Seale was bound and gagged. An attorney has no obligation to restrain others in the courtroom from disruptive conduct. See Dellinger, 461 F.2d at 399. Nor does the record disclose that Mr. Kunstler's comments caused disorder or aggravated the existing disorder in the courtroom. For these reasons, as well as for the reasons stated by the Court in its discussion of Davis II, Hayden III and Hoffman II, supra, the Court cannot say that the evidence establishes beyond a reasonable doubt that the conduct charged to Mr. Kunstler in this specification occasioned an actual and material obstruction of the administration of justice. Nor does the evidence establish beyond a reasonable doubt that such conduct constituted misbehavior with the requisite intent.

Kunstler IV (January 6)

On January 6, the defendants called Mayor Richard J. Daley of Chicago to the stand as their witness. After the court had sustained objections to a series of leading questions asked of Mayor Daley by Mr. Kunstler, Mr. Kunstler moved to have the mayor declared a hostile witness. The motion was made in the presence of the jury despite the court's direction to counsel, in an earlier colloquy in the absence of the jury, that any motion to have the mayor declared a hostile witness be made outside the presence of the jury (Tr. 13,890). This specification charges Mr. Kunstler with a direct violation of the court's order.

After a careful review of the record, the Court cannot say that it is satisfied beyond a reasonable doubt that Mr. Kunstler deliberately and intentionally acted in violation of the court's order or that the incident occasioned an actual and material obstruction of the administration of justice. Mr. Kunstler testified that he understood the court's order to prohibit arguing a hostile witness motion in the presence of the jury. The order was somewhat ambiguous, and the transcript discloses that, as soon as government counsel called the court's attention to the alleged violation, Mr. Kunstler requested several times unsuccessfully that the jury be excused. A substantial amount of time had elapsed since the court's direction to counsel, and, most significantly, the motion could not conceivably have prejudiced the jury, inasmuch as the hostility existing between Mayor Daley and the defendants was obvious to everyone in the courtroom. See United States v. Dellinger, supra at 388, n. 86.

Kunstler V (January 23)

On the morning of January 23, during the direct examination of defendant Davis, with the jury present in court, the judge sustained the government's objection to a defense exhibit. Argument over the judge's ruling precipitated a motion by Mr. Kunstler for a mistrial.*fn19 The judge's denial of the motion resulted in the colloquy set forth in Dellinger IX. Disorder broke out in the courtroom, and the marshals moved to the rear of the courtroom and started ejecting a number of spectators who had applauded Dellinger's remarks and were otherwise disrupting the proceedings. At this point, Mr. Kunstler, who was at the lectern attempting to argue the admissibility of the exhibit, made the comments charged to him in Kunstler V.

The charge against Mr. Kunstler in this specification is that his commentary from the lectern "had the effect of encouraging disorder among the spectators." However, the transcript, the tapes and the testimony of eyewitnesses show that the disorder among the spectators had resulted from the immediately preceding remarks of Mr. Dellinger and from the efforts of the marshals to remove the spectators who had applauded. The evidence does not establish beyond a reasonable doubt that Mr. Kunstler's comments from the lectern caused the disruptive conduct of others in the courtroom or occasioned an actual and material obstruction of the administration of justice.

Weinglass III (January 24)

On the afternoon of January 24, during the direct examination of defendant Davis, with the jury present in court, the judge sustained a government objection to testimony by the witness concerning a speech of the Reverend Ralph Abernathy given at one of the National Mobilization Committee (MOBE) rallies which had been held on August 29, 1968.*fn20 After the court's initial ruling, Mr. Weinglass and Mr. Kunstler continued to argue that the speech given by Dr. Abernathy, who at the time was national co-chairman with Mr. Dellinger of MOBE, was directly relevant to demonstrate the non-violent intent of the defendants.*fn21 Government counsel responded, and the judge announced that his ruling would stand. Despite repeated directions from the judge to continue his examination of the witness, Mr. Weinglass continued to argue as set forth in Weinglass III.

The essence of the charge against Mr. Weinglass in this specification is that he persisted in continuing argument after repeated orders by the judge to cease. But it is clear from the relevant transcript and tapes that Mr. Weinglass sincerely believed that the judge had not given him a reasonable opportunity to be heard and did not fully understand his position. See Dellinger at 399. Mr. Weinglass' remarks were confined to argument and he did not personally insult or otherwise show disrespect for the judge. There is no indication in the transcript or the tapes that his statements were made in an offensive manner or in any way disrupted the proceedings. See In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972). As the Court of Appeals has stated, attorneys may be ". . . persistent, vociferous, contentious, and imposing, even to the point of appearing obnoxious, when acting in their client's behalf," Dellinger, 461 F.2d at 400, but, "an attorney possesses the requisite intent only if he knows or reasonably should be aware in view of all the circumstances, especially in the heat of controversy, that he is exceeding the outermost limits of his proper role and hindering rather than facilitating the search for truth." Idem. The Court cannot say that the record "clearly shows" that the conduct charged to Mr. Weinglass in this specification was conduct "so inappropriate to . . . [his] role as trial counsel" as to exceed the "outermost limits" of vigorous advocacy, or that such conduct rose to the level of contemptuous "misbehavior" which "obstructed" the judge in "the performance of judicial duty." In the view of this Court, while Mr. Weinglass approached the brink, he did not cross the line between advocacy and obstruction.

Kunstler VIII (February 4)

This specification charges Mr. Kunstler with "fanning the flames of the disorder" which had broken out in the courtroom at the end of the afternoon session on February 4 when the judge revoked Dellinger's bail. The record does not show, however, that Mr. Kunstler's comments either caused or aggravated the existing disorder in the courtroom. For this reason, as well as for the reasons stated by the Court in its discussion of Davis V, Hoffman V and Rubin IV, supra, the Court cannot say that the evidence establishes beyond a reasonable doubt that the conduct charged to Mr. Kunstler in this specification occasioned an actual and material obstruction of the administration of justice.

Applying the standards which have been set forth above to the contempt specifications against the lawyer-defendants, the Court finds that, for the reasons to be stated, defendant Kunstler is guilty of the following charges:

Kunstler VI (February 2)

On Friday, January 30, Mr. Kunstler represented to the court that the defendants had completed the presentation of their "live" witnesses. He requested and obtained a weekend recess so that the defense might locate a cameraman necessary to authenticate a film, the admission of which, together with certain documents, would conclude the defense case. On Monday morning, February 2, Mr. Kunstler informed the judge that over the weekend the defendants had learned that the Reverend Ralph Abernathy had returned to the United States from Europe and would be available to testify later that morning. Mr. Kunstler asked to be relieved of his prior commitment in view of this unforeseen development. The government objected, and the judge denied Mr. Kunstler's motion. At this point, Mr. Kunstler made the extended remarks set forth in Kunstler VI. In the course of these comments, he termed the judge's ruling "about the most outrageous statement I have ever heard from a bench," violating "every principle of fair play;" stated that he felt "disgraced to be here" and that the judge could hold him in contempt if he wished to do so; accused the judge of extreme bias; documented his accusations with a quotation from The New York Times which had characterized a prior ruling of the judge as "the ultimate outrage in American justice"; called the trial "a legal lynching"; and concluded with the following observation:

  — and that, your Honor, is wholly responsible for
  that, and if this is what your career is going to
  end on, if this is what your pride is going to be
  built on, I can only say to your Honor, "Good luck
  to you."

Shouts of "Right on" and applause followed.

Mr. Kunstler testified that his remarks constituted "forceful and vigorous" argument. However, the extent and violence of the diatribe and the bitterness and anger expressed demonstrate that his comments constituted a vicious personal attack on the judge which could only have served to vent his spleen. His remarks plainly created an "imminent prejudice to a fair and dispassionate proceeding." See Dellinger, 461 F.2d at 396. Unquestionably, the line "beyond which disrespect becomes obstruction" was crossed. The record clearly shows that the conduct charged to Mr. Kunstler in this specification constituted outrageous misbehavior in the presence of the court; that, as the speech itself indicates, Mr. Kunstler knew his conduct was wrongful; and that the conduct, which resulted in an entirely unnecessary and not insignificant delay and disruption of the proceedings, exceeded the "outermost limits" of advocacy and rose to the level of an actual and material obstruction of the administration of justice.

Kunstler VII (February 2)

On the morning of February 2, following the judge's denial of Mr. Kunstler's motion for leave to present the Reverend Ralph Abernathy as a defense witness (see Kunstler VI), the judge called on the defendants either to present further evidence or to rest. Mr. Kunstler stated that the defendants were not going to rest, as Dr. Abernathy was on his way from the airport and prepared to testify. Over Mr. Kunstler's objection, the judge rested for the defendants. At the request of government counsel, the judge ordered the defendants and their counsel to make no reference before the jury to the fact that they wanted Dr. Abernathy to testify. There ensued the colloquy set forth in Part I of Kunstler VII, in which Mr. Kunstler stated that he was not going to abide by the court's order; that he was going to repeat his motion before the jury; and that the judge would have to send him to jail. The jury then returned to the courtroom, and the judge informed the jury that since the defendants were not ready to proceed, he had rested for them. Mr. Kunstler objected and informed the jury that the defendants were prepared to go ahead with Dr. Abernathy. Shortly thereafter, Mr. Kunstler interrupted the examination of the government's first rebuttal witness to inform the court that Dr. Abernathy had just arrived. There then ensued, in the presence of the jury, the colloquy set forth in Part II of Kunstler VII, during which Mr. Kunstler renewed his motion to call Dr. Abernathy as a defense witness and persisted in arguing the motion after it had been denied by the judge and after the judge had repeatedly ordered him to sit down.

The record clearly shows that Mr. Kunstler flagrantly and defiantly violated the court's order not to renew his motion in the presence of the jury and persisted in continuing argument after the judge's repeated directions to stop. His conduct exceeded the "outermost limits" of vigorous advocacy and constituted contemptuous misbehavior which he assuredly knew or reasonably should have been aware was wrongful. His actions plainly caused a substantial delay in the proceedings and obstructed the judge in the performance of his judicial duty.

II

EXTENUATION AND MITIGATION

The Court of Appeals made clear in Seale and Dellinger that impropriety on the part of the trial judge cannot justify or excuse contemptuous conduct. However, the Court of Appeals made equally clear in those cases that judicial error, judicial or prosecutorial misconduct, and judicial or prosecutorial provocation are to be considered in extenuation of the offense and in mitigation of any penalty to be imposed. Dellinger, 461 F.2d at 401; Seale, 461 F.2d at 361-364. See Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 69 L.Ed. 767 (1925); Offutt v. United States, 93 U.S.App.D.C. 148, 208 F.2d 842, 843 (1953). Therefore, this Court must now consider the extent to which the conduct of the trial judge and prosecuting attorneys in the Anti-Riot Act trial, although it cannot vitiate the contempt convictions, may reduce the degree of the defendants' culpability and lessen the severity of the penalties which might otherwise be imposed.

Although the Court of Appeals made no attempt to assign responsibility for the deficiencies in the trial, id. at 385, it held that "the demeanor of the judge and prosecutors would require reversal if other errors did not." Id. 461 F.2d at 391. Among other improprieties, the Court of Appeals noted several hundred comments and actions of the trial judge, more than 150 in the presence of the jury, which, from the very beginning, displayed the judge's "deprecatory and often antagonistic attitude" toward the defendants, their counsel and their case, and which "must have telegraphed to the jury the judge's contempt for the defense." Id. at 386-389, and nn. 80, 83, 84 and 86. In addition, the Court of Appeals catalogued numerous instances in which the judge's manifest hostility toward the defense was disclosed by unwarranted restrictions on the activities of defense counsel and the conduct of the defense, id. at 386-387 and nn. 81 and 82; inconsistent evidentiary rulings, id. at 387 and nn. 86 and 88; and the harassment of defense witnesses, id. at 388 and n. 85. Finally, the Court of Appeals observed that the conduct of the prosecutors, which included numerous disparaging personal attacks on defense counsel made before the jury, "fell below the standards applicable to a representative of the United States." Id. at 389 and n. 87. The official transcript, the tapes and the eyewitness testimony presented before this Court amply support these findings of the Court of Appeals.

From the foregoing, it is apparent that the contumacious conduct of the defendants and their lawyers cannot be considered apart from the conduct of the trial judge and prosecutors. Each reacted to provocation by the other, and the tensions generated during four and a half months of so acrimonious a trial cannot be ignored. Indeed, with the exception of the two specifications relating to the "robe" incident (Hoffman VII and Rubin VI), the contumacious conduct of the four remaining defendants can, in each instance, reasonably be said to have been in response, albeit an excessive response, to peremptory action of the judge.

Present government counsel urge that substantial jail sentences for these defendants are necessary to vindicate the judicial process and to deter other defendants and defense counsel from similar misbehavior.*fn22 After a careful evaluation of the record, however, this Court is convinced that, in the particular circumstances here present, the affirmation of the integrity of trial proceedings and the goal of deterrence have both been achieved by the findings of guilt. The Court is further persuaded that, at this late date, four years after the events which gave rise to these charges, no warrant exists for the imposition of jail sentences additional to the periods of imprisonment which have already been served by the non-lawyer defendants.*fn23 While Mr. Kunstler was never incarcerated, in the considered judgment of the Court, no purpose, other than the impermissible purpose of vindictiveness, would be served by sentencing him to prison at this time. The condemnation of his conduct and the potentially grave consequences of a criminal contempt conviction to a member of the bar should serve as adequate deterrents to other lawyers who may be disposed to similar misbehavior.

In light of the unique character and long history of this case, and the defendants' attack on the integrity and fairness of the American judicial process, a concluding observation is appropriate. Throughout these proceedings, the defense has asserted that both the 1969 Anti-Riot Act prosecution and the present contempt proceedings have been "political trials" designed to suppress dissent. This position, they claim, gives them license unilaterally to dispense with the standards of civility to which American lawyers and litigants customarily adhere in criminal, as well as civil, trials. It is precisely to preserve the opportunity for the fair and dispassionate resolution of strenuously contested disputes by an impartial tribunal that rules governing the behavior of all the actors in a trial exist. The fallacy which this Court perceives in the defendants' reasoning was exposed by the Court of Appeals in Seale in the following language, drawn in large part from opinions of the Supreme Court:

  "It is essential to the proper administration of
  criminal justice that dignity, order, and decorum
  be the hallmarks of all court proceedings in our
  country." Illinois v. Allen, supra, 397 U.S. 337 at
  343, 90 S.Ct. 1057, 25 L.Ed. 353. "Preservation of
  the liberties of citizens, when on trial for crimes
  charged against them, demands order in the
  courtroom. Absent such order, no trial can be fair.
  More important, if criminal trials cannot go on in
  orderly fashion, then the defendants, if unpopular
  or if members of minority groups, may become the
  victims of that monstrous substitute for trials —
  mob violence." United States v. Sacher,
  supra, 182 F.2d 416 at 454 (concurring opinion of
  Judge Frank). It is precisely because appellate
  courts sit to vindicate error that this principle
  is viable. Thus it is that he who would make
  himself the "judge in his own case, however exalted
  his station, however righteous his motives, and
  irrespective of his race, color, politics, or
  religion," (Walker v. City of Birmingham, supra,
  388 U.S. 307 at 320-321, 87 S.Ct. 1824 at 1832, 18
  L.Ed.2d 1210), and who would resort to appeal by
  disruption in the courtroom commits "the most
  grievous of offenses — a crime against
  intelligence." Freund, supra at 9. Seale at
  362-363.

In sum, a courtroom ". . . is a place for trial of defined issues in accordance with law and rules of evidence, with standards of demeanor for court, jurors, parties, witnesses and counsel." Dellinger, 461 F.2d at 401 (quoting from Katz v. Murtagh, 28 N.Y.2d 234, 240, 321 N.Y.S.2d 104, 269 N.E.2d 816, 820 (1971)).

Trials which proceed in accordance with the law, the rules of evidence and the standards of demeanor not only reaffirm the integrity and viability of the judicial process, but also serve to insure the ability of each one of us to protect the rights and liberties we enjoy as citizens. The point is well made by the following dialogue which comes, not from a judicial opinion or a legal treatise, but from Robert Bolt's play, "A Man For All Seasons." The dialogue is between Sir Thomas More and his son-in-law, William Roper, a young lawyer:

  Roper: So now you'd give the Devil benefit of
    law!
  More: Yes. What would you do? Cut a great road
    through the law to get after the Devil?
  Roper: I'd cut down every law in England to do
    that!
  More: Oh? And when the last law was down, and the
    Devil turned round on you — where would you hide,
    Roper, the laws all being flat? This country's
    planted thick with laws from coast to coast —
    man's laws, not God's — and if you cut them down
    — and you're just the man to do it — d'you really
    think you could stand upright in the winds that
    would blow then? Yes, I'd give the Devil benefit
    of law, for my own safety's sake.
  Robert Bolt, "A Man For All Seasons," pp. 37-38
  (Vintage Books: New York, 1962).

III

DIRECTION FOR ENTRY OF JUDGMENTS

In accordance with the foregoing, judgments will be entered as follows:

  (1)   Finding defendant Rennard C. Davis not
        guilty of the charges against him in
        Specifications II and V against said
        defendant and acquitting said defendant of
        said charges; and further directing that
        said defendant be discharged.
  (2)   Finding defendant Thomas E. Hayden not
        guilty of the charge against him in
        Specification III against said defendant
        and acquitting said defendant of said
        charge; and further directing that said
        defendant be discharged.
  (3)   Finding defendant Leonard I. Weinglass not
        guilty of the charge against him in
        Specification III against said defendant
        and acquitting said defendant of said
        charge; and further directing that said
        defendant be discharged.
  (4)   Finding defendant David T. Dellinger not
        guilty of the charge against him in
        Specification III against said defendant
        and acquitting said defendant of said
        charge.
  (5)   Finding defendant Abbott H. Hoffman not
        guilty of the charges against in
        Specifications II, IV and V against said
        defendant and acquitting said defendant of
        said charges.
  (6)   Finding defendant Jerry C. Rubin not guilty
        of the charge against him in Specification
        IV against said defendant and acquitting
        said defendant of said charge.
  (7)   Finding defendant William M. Kunstler not
        guilty of the charges against him in
        Specifications I, IV, V and VIII against
        said defendant and acquitting said
        defendant of said charges.
  (8)   Finding defendant Abbott H. Hoffman guilty
        of the charges against him in
        Specifications VI and VII against said
        defendant and convicting said defendant of
        the crime of contempt of court as charged
        in said specifications; but directing that
        no sentence be imposed and that said
        defendant be discharged.
  (9)   Finding defendant Jerry C. Rubin guilty of
        the charges against him in Specifications V
        and VI against said defendant and
        convicting said defendant of the crime of
        contempt of court as charged in said
        specifications; but directing that no
        sentence be

        imposed and that said defendant be
        discharged.
  (10)  Finding defendant David T. Dellinger guilty
        of the charges against him in
        Specifications IV, V, VI, VII, VIII, IX and
        X against said defendant and convicting
        said defendant of the crime of contempt of
        court as charged in said specifications;
        but directing that no sentence be imposed
        and that said defendant be discharged.
  (11)  Finding defendant William M. Kunstler
        guilty of the charges against him in
        Specifications VI and VII against said
        defendant and convicting said defendant of
        the crime of contempt of court as charged
        in said specifications; but directing that
        no sentence be imposed and that said
        defendant be discharged.

It is so ordered.

APPENDIX

Revised Contempt Specifications and Relevant Excerpts From the
  Official Transcript not Included in the Specifications

October 30, 1969

WILLIAM M. KUNSTLER

I

On October 30th, as the Court was attempting to maintain order by restraining the defendant Bobby Seale, Mr. Kunstler not only made no attempt to aid the Court in maintaining order, but engaged in the following colloquy as well:

  Mr. Kunstler: Your Honor, are we going to stop this medieval
  torture that is going on in this courtroom? I think this is
  a disgrace.*fn1

Mr. Rubin: This guy is putting his elbow in Bobby's mouth and it wasn't necessary at all.

Mr. Kunstler: This is no longer a court of order, your Honor; this is a medieval torture chamber. It is a disgrace. They are assaulting the other defendants also.[fn1a]

Mr. Rubin: Don't hit me in the balls, motherfucker.[fn2a]

Mr. Seale: This motherfucker is tight and it is stopping my blood.

Mr. Kunstler: Your Honor, this is an unholy disgrace to the law that is going on in this courtroom and I as an American lawyer feel a disgrace.

Mr. Foran: Created by Mr. Kunstler.

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

Mr. Hoffman: . . . " — being a defendant — " [sic, not in Transcript]. You come down here and watch it, Judge.

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

Mr. Seale: You fascist dogs, you rotton, low-life son of a bitch. I am glad I said it about Washington used to have slaves, the first President.

Mr. Dellinger: Somebody protect him [sic, Transcript reads, "Somebody go to protect him."].

Mr. Foran: Your Honor, may the record show that it is Mr. Dellinger saying "Someone go to protect him" and the other comment is by Mr. Rubin.

Mr. Rubin: And my statement, too.

The Court: Everything you say will be taken down.

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

The Court: You ask for anything [that] you want. When you begin to keep your word around here that you gave the Court, perhaps things can be done.

Mr. Kunstler: If we are going to talk about words, I am prepared to give you back your word about Mr. Ball yesterday and what he said you said to him. We have the transcript now.

The Court: Don't point at me, sir, in that manner.

Mr. Kunstler: If we are going to talk about words, I'd like to exchange some.

The Court: Don't point at me in that manner.

Mr. Kunstler: I just feel utterly ashamed to be an American lawyer at this time.

The Court: You should be ashamed of your conduct in this case, sir.

Mr. Kunstler: What conduct, when a client is treated in this manner.

The Court: We will take a brief recess.

Mr. Kunstler: Can we have somebody with Mr. Seale? We don't trust — (Tr. 4,815-17).

RENNARD C. DAVIS

II

On October 30, when the jury returned to the courtroom, the defendant Davis rose from his seat at the defense table and made the following speech to the jury:

    Ladies and gentlemen of the jury, I am trying
  to say he was being tortured while you were out
  of this room by these marshals. They came and
  tortured [sic, Transcript reads, "come and
  torture"] him while you are out of the room. It is
  terrible what is happening. It is terrible what is
  happening. (Tr. 4,845).

THOMAS E. HAYDEN

III

On October 30, when the Court was compelled to direct the marshals to restrain Mr. Seale, the following incident occurred:

    Mr. Seale: The Judge is not — he is not trying to
  give you no fair trial. That's what you are. You
  are lying. You know exactly what you are.
    Mr. Hayden: Now they are going to beat him,
  they are going to beat him.
    Mr. Hoffman: You may as well kill him if you
  are going to gag him. It seems that way, doesn't
  it?
    The Court: You are not permitted to address the
  court, Mr. Hoffman. You have a lawyer.
    Mr. Hoffman: This isn't a court. This is a neon
  oven.
    Mr. Foran: That was the defendant Hoffman who
  spoke.
    The Court: Let the record show that the
  defendant Hoffman spoke.
    Mr. Schultz: Prior to that it was Mr. Hayden
  who was addressing the jury while they were
  walking out of here.
    Mr. Hayden: I was not addressing the jury. I
  was trying to protect Ms. [sic, Mr.] Seale. The man
  is supposed to be silent when he sees another man's
  nose being smashed?
    Mr. Hoffman: The disruption started when these
  guys got into over-kill. It is the same exact
  [sic, not in Transcript] thing as last year in
  Chicago, the same exact thing.
    The Court: Mr. Hoffman, you are directed to
  refrain from speaking you are ordered to refrain
  from speaking. It is clear that [sic, not in
  Transcript] after this morning that I think we
  cannot go ahead. I would be glad to entertain first
  suggestions from the government and then from the
  defense as to whether or not this trial shouldn't
  be recessed until two o'clock. I am perfectly
  willing to try to continue and do my best to
  discharge the obligations of my office.
    Mr. Foran: Your Honor, I would like to see if
  we couldn't continue.

The Court: What do you say?

    Mr. Foran: I would like to see if we could
  continue.
    The Court: All right. It will take some time to
  — then we will take a brief recess.
    Mr. Hayden: I thought you were going to ask the
  defendants.
    Mr. Weinglass: Are we part — weren't we being
  invited to participate in the dialogue between then
  [sic, Transcript reads, "the"] —
    Mr. Schultz: It is they who are disrupting this
  trial and now they want to make the decision as
  to whether or not we should proceed. It is
  incredible. It is they who are fostering this and
  they want to advise the court —

The Court: I have ordered a recess.

Mr. Weinglass: The court invited it.

    The Court: Let the record show that.
  [sic " — " appears in Transcript].
    Mr. Hayden: Stand up. Stand up. Don't let them
  have any pretext.
    The Court: Let the record show that Mr. Hayden
  asked [the] people —
    Mr. Hayden: I ask the people there to do what
  they were told and they did it.
    The Court: Mr. Hayden, do not try to fill my
  sentences out for me and you are not permitted to
  speak except as you may come to be a witness in
  this case. You are not permitted to speak out
  loud. You may, of course, consult with your
  lawyer. (Tr. 4846-49).

ABBOTT H. HOFFMAN

II

On October 30, when the Court was compelled to deal appropriately with Mr. Seale, Mr. Hoffman engaged in the following:

    Mr. Seale: The Judge is not — he is not trying to
  give you no fair trial. That's what you are. You
  are lying. You know exactly what you are.
    Mr. Hayden: Now they are going to beat him,
  they are going to beat him.
    Mr. Hoffman: You may as well kill him if you
  are going to gag him. It seems that way, doesn't
  it?
    The Court: You are not permitted to address the
  Court, Mr. Hoffman. You have a lawyer.
    Mr. (sic.) Mr. Hoffman: This isn't a court. This
  is a neon oven.
    Mr. Foran: That was the defendant Hoffman who
  spoke.
    The Court: Let the record show that the
  defendant Hoffman spoke. (Tr. 4,846).

And very shortly thereafter he continued in the following interchange:

      [The omitted portion of the transcript reads
    as follows:
      Mr. Schultz: Prior to that it was Mr. Hayden
    who was addressing the jury while they were
    walking out of here.] (Tr. 4,846).
    Mr. Hayden: I was not addressing the jury. I
  was trying to protect Mr. Seale. The man is
  supposed to be silent when he sees another man's
  nose being smashed?
    Mr. Hoffman: The disruption started when these
  guys got into over-kill. It is the same thing as
  last year in Chicago, the same exact thing.
    The Court: Mr. Hoffman, you are directed to
  refrain from speaking. You are ordered to refrain
  from speaking. (Tr. 4,847).

After this interchange the Court determined that a recess would be appropriate. When the Court left the bench the defendant Hoffman refused to rise in the customary manner. (Tr. 4,849).[fn3a]

November 26, 1969

DAVID T. DELLINGER

III

On November 26, after the Court had made a ruling refusing to grant a writ of habeas corpus ad testificandum, the following colloquy took place:

Mr. Dellinger: Aw Jesus — fascist —

    The Court: Who is that man talking, Mr.
  Marshal?
    Mr. Dellinger: That is Mr. David Dellinger and
  he is saying that that is an arbitrary denial
  when you say who is key to our defense. We know
  who is key to our defense and we want to put on
  our key defense witness.
    The Court: Mr. Marshal, ask that man to sit
  down.

The Marshal: Sit down, Mr. Dellinger.

    Mr. Dellinger: I think that is acting like a
  fascist court like Mr. Seale said when you make
  decisions of that kind and deprive us of our
  witnesses. Because he has already been persecuted
  in one court, now you are persecuting him and us
  in another court [sic, one]. (Tr. 8,078).

ABBOTT H. HOFFMAN

IV

On November 26, after the Court made a ruling the following colloquy occurred:

    The Court: I decide each motion on its own
  papers, sir, and I am not aware of any witnesses
  that the Government has srought (sic.) to bring
  here. I don't know whether —
    Mr. Hoffman: We are very confused about this.
  Is the Government going to present our defense as
  well as our prosecution?
    The Court: Have you gotten that — what is the
  name of that defendant speaking?
    Mr. Hoffman: Just Abbie. I don't have a last
  name, Judge. I lost it. We can't respect the law
  when it's tyranny.
    The Court: Are you able to hear the defendant
  Hoffman speaking?

Mr. Hoffman: Abbie.

The Reporter: Yes, sir. (Tr. 8,081).

December 9, 1969

DAVID T. DELLINGER

IV

During the testimony of the witness Meyerding, the following occurred:

    The Court: I note for the record that certain
  of the defendants, Dellinger particularly —

Mr. Dellinger: I did not.

The Court: — made noises.

    Mr. Dellinger: I beg your pardon, I did not
  utter a single noise. When I have noises,
  [sic] ["sic" does not appear in Transcript] I stand
  up and say so.

The Court: I heard you, sir.

    Mr. Dellinger: I did not sigh; I did not utter
  a single noise, absolutely not.
    The Court: And the man sitting next to you did
  also.
    Mr. Dellinger: You mean to say ["to say" does
  not appear in Transcript] you are calling me a
  liar? If so, you are a liar. I did not utter a
  single noise.
    The Court: And make a note of that last
  statement.
    Mr. Dellinger: I have called this a fascist
  court before and I think he is trying to prove
  it. It is absolutely irresponsible on your part.

The Court: Make a note of that last statement.

Mr. Dellinger: Absolutely irresponsible.

The Marshal: Sit down, please.

Mr. Dellinger: And dishonest.

    The Court: Make a note of that last statement.
  Miss Reporter, have you all of Mr. Dellinger's
  comments? Have you? [sic, Transcript reads, "Miss
  Reporter, you have all of Mr. Dellinger's comments,
  have you?"]

The Reporter: Yes. (Tr. 10,086-87).

  December 15, 1969

DAVID T. DELLINGER

V

On December 15, when the Court was compelled to request the marshal to remove Mr. Stuart Ball, Jr., the following occurred:

The Court: Mr. Marshal, take Mr. Ball out.

Mr. Dellinger: That is an injustice.

Mr. Kunstler: That is a lawyer who is part of our defense team.

The Court: He is not a lawyer admitted to practice in this court.

Mr. Kunstler: You are removing a lawyer from the defense table.

The Court: No, he is not a lawyer admitted to practice here.

Mr. Kunstler: That doesn't matter, your Honor. He is —

Mr. Dellinger: He wasn't laughing. (Tr. 11,179-80).

A few moments later, the following colloquy occurred:

    [The omitted portion of the transcript reads as
  follows:
    Mr. Kunstler: You have given him permission to
  sit here.

The Court: I withdraw the permission.

Mr. Kunstler: Your Honor, he —

    The Court: I won't conduct this trial in a
  disorderly manner. That will be all.
    Mr. Kunstler: Your Honor, this is the second
  time you have picked the wrong man.

Mr. Dellinger: Your Honor —

    Mr. Kunstler: Mr. Davis has admitted he
  laughed.
    The Court: That will be all, sir. Now I am
  making a ruling.

Mr. Hoffman: I was laughing.

    Mr. Kunstler: I know, but you are depriving us
  of a lawyer at our defense table.
    The Court: That is just too bad. You will have
  to suffer through without him. He is not a lawyer
  admitted to practice here.
    Mr. Kunstler: He is a member of the bar of the
  District of Columbia. He has been assisting us
  for three months through this trial.
    The Court: Let him go back to the District of
  Columbia. I will not have him here laughing at me
  while I am trying to rule —] (Tr. 11,180-81).

Mr. Kunstler: But he didn't laugh, your Honor. If he laughed, that is one thing, perhaps, but two defendants have admitted laughing.

The Court: My eyesight is good and my hearing is good.

Mr. Kunstler: You were wrong about Mr. Dellinger. You thought he made a noise. We have submitted an affidavit as to that.

The Court: I suppose I didn't hear him call me a liar in open court.

Mr. Kunstler: That is a different matter, your Honor.

The Court: Oh —

Mr. Dellinger: I said if you said I was talking that that was a lie, that you were calling me a liar.

The Court: You didn't — you said "You are a liar."

Mr. Kunstler: No. Read the transcript.

Mr. Dellinger: You accused me of being a liar and I said that was a lie.

The Court: Will you sit down?

Mr. Dellinger: And you are very prejudiced and unfair and I state that in open court. It is not a fair trial and you have [sic, had] no intention of giving us a fair trial and when I speak throughout the country, I say that you are the assistant prosecutor [sic, Assistant Prosecutor] or maybe the chief prosecutor [sic, Chief Prosecutor] and it is true and the people of this country will come to learn that about you and about some other judges in this court.

A Spectator: Right on.

    [The omitted portion of the transcript reads as
  follows:
    Mr. Dellinger: That's why I called it a fascist
  court before.

A Spectator: Right on.] (Tr. 11,183).

Mr. Davis: That's why we were laughing.

(There was disorder in the courtroom.) [sic, not in Transcript].

A Spectator: Right on, boys [sic, does not appear ...


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