This is a political trial that was already decided for us. Ignoring that reality is just weird to me.
William M. Kunstler:
There are civil trials and there are criminal trials. There is no such thing as a political trial.
In Aaron Sorkin’s The Trial of the Chicago 7, we see legendary civil rights lawyer William M. Kunstler slowly come to the realization that he is in a political trial, requiring a whole different approach to defending the eight (later seven) defendants in one of the most colorful, if not significant, trials in modern American history.
The above exchange in the film between Hoffman and Kunstler comes after opening statements. Kunstler’s epiphany comes well into the trial.
Screenwriters (Sorkin wrote the script) and directors are known for taking artistic liberties, but this exchange seemed odd and did not square with what I had read and heard about Kunstler – the indefatigable champion of causes whose courtroom tactics and antics were out of Jacque Vergès’ rupture strategy playbook (putting the system on trial through disruptive means when necessary). How could this be? Were Sorkin’s embellishments beyond the pale? The strange, and at times surreal, events leading up to and during the trial are well documented. So why make Kunstler (a hero to many of us when we were starting out as defense lawyers) to be so out-of-tune, so slow on the uptake that he did not realize that the charges against his clients were trumped up and politically motivated – that he was in a political trial?
Sorkin takes artistic license in some of the courtroom scenes, but, as it turns out, this exchange is not too far off the mark.
I was unsettled by Kunstler’s supposed late awakening in the film – counterintuitive that Kunstler would not have had a fine-tuned theory of the case before stepping into the courtroom – so I decided to consult Kunstler’s entertaining and shamelessly revealing memoir: My Life as a Radical Lawyer. I had read it when it hit the bookstores, and serendipitously, it was happily within reach on my bookshelf. Fittingly to the title of his memoir, the trial of the Chicago 81 No spoilers, but when you watch the movie, you will understand that my use of “8” here is not a typo. (Unites States v. Dellinger et al.), is the first chapter – Turning Point: Chicago.
Kunstler had been involved in civil rights cases since the early 1960s and was East Coast counsel for the Black Panther Party (which espoused the attainment of civil and social justice through any means necessary, including violence) up until the trial of the Chicago 8. Despite the controversial nature of the cases he defended, he did so in what would be considered the traditional way – seeking justice by invoking the Constitution, challenging the means by which evidence was collected, poking holes in witnesses’ testimony and the prosecution’s case – raising reasonable doubt.
The tripwire here was the dressing-down he got from his clients after making his opening statement where he focused on violations of the defendants’ First Amendment rights to freedom of speech and assembly, as opposed to attacking, indeed prosecuting, the US government’s actions in Vietnam.
It was just after the summer of love, 1968. Chicago was hosting the National Democratic Convention. American involvement in the Vietnam war was at an all-time high, as was the anti-war movement and social unrest across America. Abbie Hoffman and Jerry Rubin, Leaders of the Youth International Party (YIP or Yippie!), went to Chicago to stage the Festival of Life and a Theater of Distribution. Tom Hayden and Rennie Davis, leaders of the Students for a Democratic Society (SDS), went to participate in a protest march against the Vietnam war. Dave Dellinger, leader of the Chicago office of the National Mobilization Committee to End the War in Vietnam (MOBE) also went to march in the protest, as did student activist Lee Weiner and teacher John Froines. Bobby Seale, National Chairman of the Black Panther Party went to Chicago to give a speech; he neither joined the festivities at the Festival of Life nor attended the protest march.
When things got out of hand during the march (later proved to have been staged and provoked by local and federal law enforcement authorities) the eight defendants were charged by the Nixon Administration’s Justice Department with being involved in a conspiracy and crossing state lines with the intent to “incite, organize, promote and encourage” riots. Kunstler’s theory of the case based on First Amendment rights violations was sound, except:
The defendants were furious with me for this opening. They wanted me to talk about Vietnam rather than what was happening to their rights. Innocent men, women, and children were being napalmed while I wasted time yakking about free speech. …
It became clear to me after I blew it with my opening statement that these defendants wanted to decide for themselves what happened during their trial. They wanted our legal strategies to reflect their political philosophies. After a time, I began to understand their point of view and act on it. Chicago became a proving ground for the political-legal defense.
I soon found that proving the main charge unconstitutional was far less important to the defendants than adhering to their political goals. Their intent was to demonstrate – by their actions and by their words – that the government of the United States acted illegally to repress opposition to its policies. Thus the trial would become a readily comprehensible political event that would make everyone aware of the government’s repression and oppression of minorities, people who opposed the war in Vietnam, and members of the counterculture. 2 William M. Kunstler and Sheila Isenberg, My Life as a Radical Lawyer 19-21 (Birch Lane Press 1994).
Kunstler crossed his Rubicon. Seeing the light, there was no turning back. Kunstler – the radical lawyer – was born. For the remainder of his illustrious career, Kunstler would rely heavily on political-legal defense strategies.
I will refrain from spoiling by revealing more of the film. But as with any legal drama, I am looking for vignettes to draw from – especially on ethics or trial advocacy. This film offers a few.
For starters, Kunstler seems to have begun the trial unprepared. His theory of the case was not fully baked. Aside from not appreciating the need to contextualize his theory of the case (how can you ascribe motive for protesting without highlighting the human atrocities of the war), he began the trial without knowing the needs and wants of his clients. There was an obvious disconnect. Aside from failing to consult with his clients and take their instructions on what they wanted as a defense (one that was well within the acceptable bounds of law, procedure, and ethical constraints), he simply was not as diligent in preparing for trial as he should have been.
In his memoir we learn that he had intended to sit second chair along with another brilliant lawyer and First Amendment specialist, Leonard (Len) Weinglass. The lead lawyer was supposed to be the pugnacious, street-fighting, courtroom brawling Charles Garry, who was expected to defend the case per his usual aggressive advocacy style and disruptive tactics. Garry could not attend because of a gallbladder operation. He was Seale’s retained lawyer. Kunstler and Weinglass represented the others. During the trial, Judge Julius J. Hoffman maintained that Seale was represented by Kunstler. What we do not see in the film is that in visiting Seale in jail prior to the start of the trial, Kunstler had to file an entry of appearance for Seale, thus, de jure, making him Seale’s lawyer.
In the US, once a lawyer has entered an appearance in a criminal case, s/he cannot withdraw for the case without permission from the presiding judge. Kunstler seemingly overlooked the consequences or potential consequences that would flow from his filing an entry of appearance – even if it was merely done as a formality in order to consult with him in the holding facility. Kunstler should have known better. Maybe he expected Judge Hoffman to be reasonable and allow him to withdraw once Seale remained adamant that his lawyer was Garry and no one else. But by then Kunstler would have known that Judge Hoffman was, if anything, unfair, unreasonable, and unsuitable. This oversight significantly added to the in-court drama and to Judge Hoffman’s overreach during the trial, as Seale and Kunstler repeatedly tried to no avail to convince him that Seale was being tried without legal representation.
Perhaps thinking that Garry would carry the ball in court, perhaps because of his busy practice, and perhaps relying on his courtroom skills, Kunstler thought he could waltz into the courtroom without much preparation. Kunstler admits in his memoir that he was also scheduled about the same time to defend the Panther 21 – a group of Black Panther members charged with conspiracy to blow up several sites in New York City. He flipped a coin with the then young but brilliant defense lawyer Gerald B. Lefcourt. Kunstler ended up with the Chicago 8. Other pre-trial lawyers – Michael Tiger, Michael Kennedy, Dennis Roberts and Lefcourt, all members of what I consider the US criminal defense pantheon – would handle much of the motion practice. They too would run afoul of Judge Hoffman, who demanded that they be present in court throughout the trial. Pity this episode, as absurd as it was entertaining, was not included in the script. Imagine a scene where US federal marshals grab Michael Tiger “lounging on deck of the Smothers Brothers’ [popular TV comedians] boat docked in Sausalito, California,” and ending up in a Chicago jail cell where Lefcourt awaits as his cell-mate.3 William M. Kunstler with Sheila Isenberg, My Life as a Radical Lawyer 18 (Birch Lane Press 1994).
In any event, there is little excuse to start a trial unprepared. Luckily, or I should say expectedly (after all we are talking about Kunstler), with the trial being long and considering his sharp intellect, Kunstler was able to make up lost ground once he figured out the preferred theory of the case. Suffice it to say, few cases lend themselves to bridging a divide of changing theories in defending a case in the middle of the trial. To paraphrase, you dance with the one you brought. Fortunately, the two theories were not mutually exclusive. Complementing each other they could be run simultaneously without contradiction.
Another ethics point I want to make is that during this long trial, Kunstler was found in contempt of court 24 times and was sentenced to four years and thirteen days. He never served any of his sentence; all contempt charges against him and Weinglass were overturned on appeal. Faced with an obviously prejudicial and capricious judge, Kunstler stood his ground, and when necessary, challenged the judge for his unfair and injudicious rulings. He makes his record. He forces the judge to make errors on the record. Being held in contempt when necessary to protect a client’s rights is, in my view, a trifling price to pay. In fact, it’s a badge of honor. If you have not at least been threatened with contempt while trying a case – especially where the stakes are high and the road taken by the prosecution is low, or when judges are acting unfairly – then you have not vigorously defended your case. Sometimes you need to push for the contempt to show just how unfair the process is, to delegitimize the process, and to call into question a decision and even the final result. One can always seek to purge the contempt with a mea culpa. Standing up to the judge or bench and speaking truth to power – when there is obvious unfairness – may ameliorate the offending judicial behavior. Caveat: these are exceptional tactics reserved for exceptional occasions.
As for trial advocacy, there are two scenes that illustrate excellent cross-examination techniques. One is in court, the other is out of court – a mock cross in testing one of the defendants whether he should testify. I do not want to give away too much. All I will say is that it is worth reviewing these scenes a couple of times to catch the techniques employed. The mock cross-examination also illustrates the importance of preparing with the client to determine if it advisable to take the stand.
The Trial of the Chicago 7 – which can be viewed on Netflix – is a fine film as legal dramas go. For those who grew up in the late sixties, with the protests, the music, the fragrances from the summer of love, the ubiquitous images of the ravages of the Vietnam war, the tragedies of 1968 (the assassination of Dr. Martin Luther King and Bobby Kennedy), the protests, this film serves a slice of Americana. Much like our present times with the social unrest over racial inequality and senseless police excesses, the social fabric of the US was tested to its limits.
Nonetheless, I was left wanting. Knowing what I know about the case and considering the rich material and wacky, unethical, and unconstitutional behavior of the presiding judge, the government attorneys, and the FBI and others, the film could have been much more contextual and much longer (Spike and Scorsese don’t let time get in the way of a compelling story). At times we are teased with whiff and tastes of the government’s misbehavior. Omitting what I think are eye-popping events, even to the already action-packed courtroom drama brilliantly captured by seasoned cinematographer Phedon Papamichael, disappoints and deprives the viewer of important historical facts. Kunstler recounts:
The government took no chances at this trial, we learned later when we obtained documents through a Freedom of Information Act request. Prior to and during the trial, judge, prosecutors, and FBI agents had colluded and conspired. They conferred daily, infiltrated the defense by taping some of our key legal meetings, and had secret communications with some of the jurors.4 William M. Kunstler with Sheila Isenberg, My Life as a Radical Lawyer 13 (Birch Lane Press 1994).
I would have preferred fewer courtroom artistic liberties. The ending, for instance is a montage; it took place, but during the trial and by another defendant. Why not depict the end to the trial as it happened? I found the ending over-the-top and the prosecutor’s actions hokey – well out of character.
Also disappointing is the failure to cover some sentencing scenes, especially Kunstler’s brilliant remarks in defense of his conduct for which he was held in contempt 24 times. It bears quoting from it.
I have tried with all my heart faithfully to represent my clients in the face of what I consider – and still consider – repressive and unjust conduct toward them. If I have to pay with my liberty for such representation, then that is the price of my beliefs and my sensibilities….
I have the utmost faith that my beloved brethren at the bar, young and old alike, will not allow themselves to be frightened out of defending the poor, the persecuted, the radicals and the militant, the black people, the pacifists, and the political pariahs of this, our common land….
[Other lawyers must] stand firm, remain true to those ideals of the law which, even if openly violated here and in other places, are true and glorious goals…. Never desert those principles of equality, justice, and freedom without which life has little if any meaning.
I may not be the greatest lawyer in the world … but I think that I am at this moment, along with Len Weinglass … the most privileged. We are being sentenced for what we believe in.5 William M. Kunstler with Sheila Isenberg, My Life as a Radical Lawyer 39 (Birch Lane Press 1994).
The Trial of the Chicago 7 is worth watching. And for those who enjoy reading legal and extralegal adventures of old war horses going against the system and against the odds, I highly recommend William M. Kunstler’s My Life as a Radical Lawyer. He was an amazing lawyer with a remarkable career.
|↑1||No spoilers, but when you watch the movie, you will understand that my use of “8” here is not a typo.|
|↑2||William M. Kunstler and Sheila Isenberg, My Life as a Radical Lawyer 19-21 (Birch Lane Press 1994).|
|↑3||William M. Kunstler with Sheila Isenberg, My Life as a Radical Lawyer 18 (Birch Lane Press 1994).|
|↑4||William M. Kunstler with Sheila Isenberg, My Life as a Radical Lawyer 13 (Birch Lane Press 1994).|
|↑5||William M. Kunstler with Sheila Isenberg, My Life as a Radical Lawyer 39 (Birch Lane Press 1994).|