The Conspiracy Weapon

“A conspiracy is a partnership in criminal purposes.”

—Justice Holmes

“The modern crime of conspiracy is so vague that it almost defies definition.”

—Justice Jackson

“For every conspiracy is by its very nature secret; a case can hardly be supposed where men concert together for crime and advertise their purpose to the world.”

—Justice Harlan

Of the Boston Five, Marcus Raskin was acquitted by the jury. Benjamin Spock and Michael Ferber were ordered acquitted by the court that reviewed their convictions. William Sloane Coffin and Mitchell Goodman had their convictions reversed and will have to submit to a second trial on their conspiracy indictment, unless the Government decides to drop its case against them. As the case sputters out, the prediction of the editorial writers, summarized with justifiable derision by Miss Mitford, also sputters out:

[The case] would provide…the forum for a court challenge to the legality of the Vietnam war and hence define the permissible limits of dissent guaranteed under the First Amendment. [p. 5]

Had Miss Mitford waited for a few months she might have been equally derisive about the note which opens the book:

As this book goes to press, the four defendants found guilty (Spock, Coffin, Ferber, and Goodman) are at liberty on their own recognizance pending the outcome of their appeal, which was argued in the United States Court of Appeals for the First Circuit in January 1969.

The likelihood is that no matter what the decision of the First Circuit Court, there will be further appeals and the fate of the defendants will eventually be decided by the United States Supreme Court

We now know better: the Supreme Court will never review the convictions of the four defendants. The Solicitor General’s time to file a petition for review of the Court of Appeals’ decision has now expired. The attorneys for Messrs. Coffin and Goodman have announced that they will not seek review. One can only guess the reasons that have motivated both sides to settle for a “Mexican standoff.” Whatever they may be, they are surely linked to the unsatisfactory (to both sides) decision of the US Court of Appeals for the First Circuit.

It is too bad that Miss Mitford did not finish the story which she began so well: this story, as she makes clear, turns on the Government’s decision to use the weapon of a conspiracy indictment. This “scatter gun to bring down the defendant[s],” this “elastic, sprawling and pervasive offense,”¹ is the binding theme of Miss Mitford’s admirable narrative of the trial of the Boston Five.

Part I of the book is a sprightly series of characterizations of the five defendants and of their varied roles as opponents of the Vietnam war, which led to their troubles with the Government. The indictment charged the five defendants with having conspired with one another to counsel, aid, and abet violations of the Selective Service law and to hinder administration of the draft. It cited a number of overt acts committed in furtherance of the conspiracy, including the publication in August, 1967, of “A Call to Resist Illegitimate Authority,” a press conference at the New York Hilton Hotel, speeches at the Arlington Street Church by Ferber and Coffin, the episode at the Justice Department in which the conspirators (except for Ferber) and others abandoned a briefcase containing draft cards collected at various demonstrations.

How did these five wind up as accused conspirators? They hardly knew each other. Dr. Spock and Mr Coffin had met glancingly on speakers’ platforms, Michael Ferber had once exchanged a few words with Coffin in a church but had never spoken to any of the others. Four of them (Spock, Coffin, Raskin, and Goodman) had some months before participated in an eleven-man delegation to the Department of Justice; but in their busy lives this brief encounter hardly constituted acquaintance. When for the first time all five met together—after the indictment, in attorney Leonard Boudin’s living room, to discuss their common plight—Boudin says the first thing he felt he could do for these conspirators was to introduce them to each other. [p. 5]

Why these five, and not others? As Miss Mitford makes clear, the road to the dock might just as easily have been traversed by Noam Chomsky, prime mover in framing the Call (to say nothing of its several hundred signers), as well as by Paul Goodman, Ashley Montagu, and Robert Lowell, who also took part in the press conference, or by Seymour Melman, R.W.B. Lewis, or Arthur Waskow, who took part in the confrontation at the Justice Department, where, as we shall see, Waskow was irretrievably confused with Raskin by the Government’s witnesses. This confusion underscores the arbitrariness of indicting these particular defendants.

Part II is the core of the book. It begins with a reconstruction of how the Justice Department came to initiate the prosecution. Miss Mitford’s account seems to be based largely if not entirely on an interview with John Van de Kamp, head of a special unit of the Justice Department formed to speed up investigations and prosecutions of violations of the draft laws, with “special attention to violations of the ‘counsel, aid or abet’ provisions and the ‘obstruction of recruiting’ provisions.” Mr. Van de Kamp (who later ran unsuccessfully as a Democratic candidate in a Congressional election against Barry Goldwater, Jr. in—where else?—Los Angeles) was immediately responsible for framing the indictment.

Why weren’t these defendants or others indicted for the offenses of “counseling, aiding, and abetting” resistance to the draft, rather than for “conspiracy”? Miss Mitford gives an admirably clear answer to the question:

Had the government charged the defendants with “counseling, aiding, and abetting,” there could have been a fighting chance of the confrontation sought by the defendants on the issue of the legality of the war and hence of the draft law. Instead, the government reached for the shabbiest weapon in the prosecutor’s arsenal: the conspiracy charge.

Why is conspiracy “the shabbiest weapon in the prosecutor’s arsenal”? To begin with, it is what is referred to as an “inchoate crime.” It does not require proof that anyone did anything illegal, but only that he intended to commit a crime, or, as the cliché has it, that he “agreed” to commit a crime. No proof that anything illegal happened is required. No proof is required that the defendants actually helped anyone to evade the draft. If Spock, Coffin, et al had met and signed a contract agreeing to “counsel, aid, and abet” draft registrants not to perform their obligations they would indeed have been guilty of conspiracy and there would have been no real free speech issue in the case. For this meeting and signing, which of course did not take place, the Government merely tried to establish the metaphor of agreement. The proof of agreement is, as it was in this case, entirely a matter of inference from what the defendants individually said and did to encourage resistance to the draft.

Another so-called “inchoate crime” is “attempt.” Did any of these defendants attempt to aid and abet draft resistance? Probably not, for the reason that what each defendant separately did did not come close enough to the completed offense. The “overt acts” required to prove conspiracy are much less close to commission of the completed offense than are the overt acts required to prove attempt. As Justice Holmes once put it:

…[C]ombination, intention, and overt act may all be present without amounting to a criminal attempt—as if all that were done should be an agreement to murder a man fifty miles away and the purchase of a pistol for the purpose. There must be dangerous proximity to success. But when that exists the overt act is the essence of the offence. On the other hand, the essence of the conspiracy is being combined for an unlawful purpose—and if an overt act is required, it does not matter how remote the act may be from accomplishing the purpose, if done to effect it; that is, I suppose, in furtherance of it in any degree. [Hyde v. U.S., 225 U.S. 347, 387-388 (1912)]

In short, what would not be an “attempt” by one person can be converted into the crime of conspiracy if two or more people can be proved to have metaphorically agreed.

The “crime” of conspiracy is wellsuited to being used as a device for preventive detention. As I have argued elsewhere, “preventive detention can be accomplished if the definition of the crime is sufficiently vague and elastic.”² Not only is the definition of the crime vague and elastic, but the procedural rules governing conspiracy trials lend themselves to outrageous limits on freedom of speech, and to the 1984-like situation of thought control through preventive detention.

The overt acts cited in a conspiracy indictment can be in themselves entirely innocent. Evidence is admissible against all conspirators on the basis of an assumption that they conspired. The government is supposed to prove the existence of a conspiracy and then to link its alleged members to it. But the very same evidence that proves the conspiracy is used to link people to it. The jury is supposed to perform the feat of holding these aspects of proof separate in its minds. No jury can possibly separate the evidence of the existence of conspiracy from evidence that individuals were connected with the conspiracy.

Further to confound the jury, each alleged conspirator can be held liable for the statements and actions of the other conspirators whether or not he was aware of what they said and did. This so-called “co-conspirators exception” flies in the face of normal rules excluding hearsay evidence. Finally, the ordinary protection of the Constitution does not apply to the place of the trial. As Miss Mitford says:

Ordinarily, under the Sixth Amendment, an accused has the right to be tried in the state and district where the crime was committed. But in a conspiracy case the prosecutor can choose the place for the trial from among any of the districts where he has alleged that “overt acts” occurred.

The core of the Government’s case against Dr. Spock and the others was events that took place in New York and Washington: the October 2 press conference, the demonstration at the Department of Justice, the distribution of “A Call to Resist Illegitimate Authority.” Yet the government found it expedient (for reasons that also became clear during the trial) to try the case in Boston, site of but one of the overt acts, the service in the Arlington Street Church in which only Coffin and Ferber had taken any part. [p. 66]

The protection of the Sixth Amendment, relating to the place of trial, is thus removed in conspiracy cases. The Supreme Court, with Justice Holmes dissenting, held in Hyde v. United States (1912) that the defendants could be dragged all the way across the country from California and made to stand trial in the District of Columbia, although only a trivial overt act was alleged to have been committed by one co-conspirator there, while the conspiracy was hatched and essentially all of the activity in furtherance of it took place in California, where the defendants lived.

Boston was probably the last place on earth where the Spock defendants either wanted to be tried or should rationally have been tried. New York, Washington, and even New Haven would have been more logical sites and in each the defendants perhaps would have been tried before a more nearly impartial jury. The Government was free to choose the place of the trial, and Boston was presumably thought a tactically shrewd choice. In the long run, the Government may have outfoxed itself, since in Boston they had to contend not merely with the “right” judge and the “right” jury but also, as it turned out, with the “wrong” appellate court.

Yet this one example, of the place of trial, serves to show the accumulated pressure of the law of conspiracy at the Government’s disposal. How did this body of law develop, and why has it become what has been called “the prosecutor’s darling”?

Conspiracy is an ancient crime whose origins are shrouded in English history. Yet it is generally agreed that it got a substantial shot in the arm from the infamous institution, Star Chamber, during the seventeenth century. In the Poulterers’ Case (1611) the Court of Star Chamber held that it was no defense to a charge of conspiracy that a conspiracy did not have harmful consequences. From that holding developed the modern crime of conspiracy as an inchoate offense.

Perhaps the most important use made of the offense early in its development, both in England and in this country, was as a means of attacking the efforts of workingmen to combine into unions and to try to bargain collectively with their employers. Such famous decisions as the Case of the Journeymen Taylors of Cambridge (1721), the Case of the Boot and Shoemakers of Philadelphia (1806), and the Case of the Journeymen Cordwainers of New York (1811), represented the law in this country until the Congress legitimated collective bargaining during the New Deal. The main doctrinal interest of these decisions lay in their assertion that the law of conspiracy could be used in effect to create joint crimes even though no statute made the conduct criminal.

The law of conspiracy did not reach its full currency until the twentieth century. It became largely the domain of the federal government, where it was given the substantial advantage of the venue or place of trial provisions in the Hyde case, previously referred to. The conspiracy offense came to have three principal uses:

(1) It was extensively employed in antitrust cases. Many of the extraordinary procedural rules I have mentioned were developed or extensively used in order to prove conspiracy among companies to control the market where direct evidence that they had agreed to do so was hard to obtain. This has been particularly true of cases involving price fixing or refusals to deal in a market of few sellers (oligopolists), where a price increase or unilateral refusal to deal by one businessman tends to evoke a similar response by the others, often without any evidence of agreement. The development of the criminal side of antitrust law, notoriously the doctrine of “tacit collusion” or “conscious parallelism,” had spillover effects into the rest of the criminal law. The history of criminal antitrust law still awaits its historian; yet its baleful effect is beyond belief.

(2) The offense has been extensively employed against organized criminal activity, and it is here that most of its peculiar doctrinal features have been developed. It has been used to prosecute “rings” of narcotics smugglers, violators of the Mann Act, gamblers, tax evaders, and the like. In all of these prosecutions it has been helpful to the Government to be able to paint the whole picture by presenting the facts of complicated transactions involving large numbers of people. There have been conspiracy prosecutions involving as many as ninety defendants. Such prosecutions have facilitated the presentation of evidence while at the same time they tend to promote unfairness to individual defendants, thanks to the propensity of juries to believe that, as Justice Jackson put it, “birds of a feather are flocked together.”

(3) The Government has depended as much as possible on that provision of the general federal conspiracy statute prohibiting conspiracy either “to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose [emphasis added].” This provision has, if anything, made conspiracy a phantom offense, crowding out what little remained of the overt act requirement, the standards of fair trial, and the constitutional prohibitions against vagueness and double jeopardy.³ Doctrines developed for this offense have spilled over into the general law of conspiracy. Not only has this offense “outlived its usefulness” but the author of that conclusion likewise questions “the desirability of including a general crime of conspiracy in the federal code.”⁴

Still, these examples do not explain the use of conspiracy for political offenses. The law had a brief currency for that purpose during World War I, notably in the Schenck case (1919), where Holmes coined the famous “clear and present danger” test. A number of obscure cases about draft evasion were decided during this period paying no attention to the effect on free speech of the conspiracy doctrine. Yet Schenck was only in form a conspiracy case and did not present in relation to conspiracy doctrine any of the vexing issues of the Spock case. Indeed, the very decisions in which Holmes and Brandeis laid the basis for their expanded view of “clear and present danger,” Abrams (1919), Gitlow (1925), and Whitney (1927), were not conspiracy cases at all.

It was not until the Smith Act cases that conspiracy became central to political prosecution cases. Miss Mitford seems to have her history a bit confused. She says, “Conspiracy had a great revival in the days of Senator Joseph McCarthy’s ascendancy,” referring to the prosecution of the eleven leaders of the Communist Party in 1948, the famous Dennis case. Some readers will remember that Senator McCarthy did not come to prominence until June, 1950. While the Dennis convictions were affirmed, most of the second-string Communist leaders who had also been indicted before anyone heard of the junior Senator from Wisconsin had their convictions reversed over the years after Dennis. The last three of those cases, Yates (1957), Scales and Noto (1961), pretty much ended the Smith Act’s usefulness to the government. Those cases did not deal with the relationship between conspiracy and free speech.

Aside from the obscure cases previously referred to during World War I, which were decided before the Supreme Court began giving content to the free speech guaranty of the First Amendment, there was no judicial history of a direct confrontation between conspiracy and free speech before the Spock case, with the exception only of Dennis, which was very far from involving the kind of free speech issues which Spock raised.

One still wonders why the government chose to use the weapon of conspiracy. The intervening development of free speech doctrine, along with growing evidence of judicial hostility to the growth of conspiracy, should have warned the Government that a major collision was in the offing. It was neither good law nor good politics to bring a conspiracy indictment, rather than an indictment for the underlying substantive offenses of aiding, abetting, and counseling draft resistance against a group of people who did everything in the open, whose respectability, aside from their political heterodoxy (if heterodoxy it was), was beyond question. Political crimes, if crimes they were, should have caused the Government to be cautious, particularly when questions about the right to freedom of dissent were as plainly in issue as they were here. At this point, Miss Mitford fails us.

To her, it is enough that the nastiness of the Government and its propensity to use whatever weapon it could lay its hands on to deflect this challenge to the Vietnam war are self-evident. But her assurance that the federal monolith did what should have been expected of it does not convince me. She should have followed the trail somewhat beyond Mr. Van de Kamp, other than simply to quote as she does an unnamed Federal judge to the effect that President Johnson must have been consulted about the Spock indictment.

Short of quizzing the President, there were some intermediate steps that any good reporter would have taken. It is impossible to believe that the Attorney General, Ramsey Clark, did not authorize the prosecution. Ramsey Clark, who performed so honorably in office, must have been intimately involved in the decision to proceed with the case. What could have impelled this best Attorney General of modern times to authorize a prosecution which he must have recognized as being not only distasteful but of dubious legality? I don’t know the answer but it is too bad that Miss Mitford apparently made no effort to find out.

It was, for example, common knowledge for some months among academic experts in criminal law that men at the highest level in the Justice Department were wrestling with the problem of whether to prosecute people who were organizing and promoting resistance to the draft, and it so on what grounds. The pressures, on speculates, built up partly as a result of the wrangle between Ramsey Clark and General Hershey, to which Miss Mitford does refer. Whether initiated by the White House or Congress, the pressure was ultimately successful in forcing the Attorney General to acquiesce in the decision to prosecute. But why, why did he agree to the vicious expedient of a conspiracy prosecution? There are those who presumably know and who, either when they write their memoirs, or through the inevitable leaching process of history, will tell what they know.

I do not know the answer but I am tempted to guess. Given the hypothesis that acquiescence in prosecuting promoters of draft resistance could not be resisted, one may surmise that men as well-versed in both the lore of conspiracy law and in the judicial tradition of hostility to the use of conspiracy indictments for political purposes might have reasoned something like this: rather than try to make out a case of actual aiding and abetting of draft resistance, perhaps against Spock or Coffin, it might be better to use the conspiracy indictment framed by Van de Kamp, with the thought that somewhere along the line (who could predict where and how) some court might simply do the obvious and reverse any conviction that might be obtained. Thus the Attorney General might have been able to satisfy the hounds as well as his own instincts to minimize danger to the hares. I don’t say that this is what happened, but I’d give a lot to know whether some such thought might have crossed the Attorney General’s mind.

Let us return to Miss Mitford. In Part III of her book, she described the trial, exhibiting a sharp eye for the characteristic of the principal actors and an admirable ear for those choice bits of testimony or asides that are both revealing and fascinating. Miss Mitford could hardly be bettered as an observer, although it is true that her bias in favor of the defendants is squarely at the center of her recording lens. She never conceals her bias; and it is, if a sin, only a venial one, which adds spice to her account. Her wicked picture of the presiding judge squarely nails him with contempt for his obvious bias in the Government’s favor:

Judge Ford, in flapping robes, his face grown large and spready with the years, uses his castered swivel chair to propel himself from side to side of the bench—a very old, very cross toddler maneuvering about in his stroller. [p. 101]

She is no kinder to the prosecutor, John Wall, whose stuffiness, circumlocutory manner, and pretentiousness are hardly endearing. Even the judge apparently didn’t think much of him:

We have begun to sense the likes and dislikes developing beyond the barrier. The judge is found and fatherly toward the jury, he leans over to them beaming, and sometimes we can tell from the clatter of masculine ha-ha-ha’s that he has made a joke or two as he greets them in the morning. His manner toward Mr. Wall is hard to determine; we don’t think he actually likes Mr. Wall, rather he seems to steer him as elder to novice. Often, he does not wait for Mr. Wall to object to a defense question, he anticipates him. “Strike it out! Go forward.” His voice, deeper than gravel-toned, has the timbre of a truck shifting gears on a hill.

Miss Mitford is not only on the defendants’ side but obviously thinks them not merely in the right but also attractive. And the reader shares her opinion. If there is one clear hero among them, I would nominate the youngest defendant, Michael Ferber. He emerges as both blessed with a sense of humor and touched with fire, as if the Government had deliberately chosen to indict the best of his generation. The defense lawyers are dealt with sympathetically. But their styles are very different and Miss Mitford clearly has a favorite, Leonard Boudin, Dr. Spock’s counsel, who emerges as beau sabreur, a man who never hesitates to challenge and even to bait the judge.

The press are explicitly classed as friends and enemies. The friends are lovingly described while the enemies are dismissed as “troglodyte types from the local evening papers who specialized in making nasty comments about the defendants.”

Miss Mitford’s bias is, as I have said, only a venial sin. But it does distinguish her work from such models of trial reportage as Rebecca West’s The Meaning of Treason and Sybille Bedford’s The Trial of Dr. Adams. It is the consistent humanity toward all of the fallible people whom they describe so well that gives these works their genuine distinction.

Miss Mitford follows the play with great facility, nowhere better than in the vignette where she describes “the solid center of the prosecution case,” the scene of the draft card turn-in at the Justice Department. In that scene, the principal Government witness clearly confuses Marcus Raskin with Arthur Waskow, attributing to Raskin Waskow’s statement that the draft cards in the briefcase were evidence of a violation of federal law which the Government’s witness had the clear duty to receive. On such details does the fate of defendants in a conspiracy case hang. Raskin of course was acquitted by the jury. Who can tell what might have happened if Waskow had been indicted in his place? What could be clearer than that the eleven people at the confrontation in the Justice Department were there as individuals expressing dissent at the Government’s policy and not by pre-arrangement? Some conspiracy.

An interesting bit of the transcript is Boudin’s aborted attempt to get the Government’s witness to admit that he recognized that the defendants were trying individually to commit a crime in his presence:

Q: You allowed them to come in and served them coffee and then you indicted them?

Judge Ford: Strike it out!

Q: After the conference ended, were any others present at the conference indicted except for these five defendants?

Judge Ford: Strike it out!

Q: When you were at law school did you ever sign anything similar to the “Call to Resist Illegitimate Authority”?

Judge Ford (making a run at Boudin in his swivel chair): STRIKE IT OUT!” [pp. 130-131]

The judge’s charge, which Miss Mitford reports at length, can only be characterized as a hanging charge. Not only did he paraphrase the prosecutor’s closing argument in his statements about the law of conspiracy, but he added a special fillip of his own: a set of “special findings” which the jury would be required to make in the event of a guilty verdict. A most unusual procedure in a criminal trial. Not merely unusual, but an almost obvious attempt to tie the jury more securely than the judge is supposed to do in a criminal case, where the jury is supposed to have the freedom to render a general verdict, unfettered by any requirement that they show with precision how they reached their verdict.

That it was error so to fetter the jury is the one and only point on which the entire panel of reviewing judges in the Court of Appeals was able to agree. Indeed, even the majority of that court found it necessary to say that, in a case presenting issues of free speech, “the issue was peculiarly one to which a community standard or conscience was, in the jury’s discretion, to be applied.” It may seem odd that, in reversing and ordering a new trial for Goodman and Coffin, the court did not say that the new trial, if one were to take place, should be held before a different judge. Yet only an implied censure of Judge Ford stands.

The majority opinion in the Court of Appeals is somewhat hard to follow. The acquittal of Spock seems almost impossible to distinguish from the conclusion about Goodman. Much is made of Spock’s absence from the Arlington Street Church meeting, although Goodman also was not there. Spock’s absence seems an even stranger ground of distinction when one considers that Ferber was also ordered acquitted, although the only overt act in which he took part was at the Arlington Street Church where he made an even more powerful speech than did Coffin, who was also there. There is much to be said for the dissenting judge’s view that “the court’s acquittal of Spock and Ferber is the product of its own generosity rather than the inevitable result of its rationale.”

The dissenting judge, Frank Coffin, would have acquitted all the defendants since “whatever substantive crimes of aiding, abetting, and counseling, or whatever more specific conspiracies may have been committed, the crime of conspiracy, as charged in the indictment, was not. To apply conspiracy doctrine to these cases is…not consistent with First Amendment principles…and not capable of discriminating application as between the culpable and the innocent.” In reaching that conclusion Judge Coffin laid heavy emphasis on the openness of the defendant’s course of opposition to the war and to the draft. He goes on to denounce holding the “Call to Resist Illegitimate Authority” to be somehow the gist of the alleged illegal agreement. The majority seems to say at one time that the “Call” was not an illegal agreement, then again that acting on it later somehow retroactively made it illegal.

As Judge Coffin points out: the majority’s assertion that subsequent legal acts rendered “retrospectively conspiratorial the earlier protected ambiguous advocacy is to say that two rights make a wrong.” He poses the hypothetical case of the janitor of the Arlington Street Church who, having signed the “Call,” subsequently volunteers his services to tidy the pews for the turn-in. Would he have thus become a conspirator?

He is clearly right in saying that conspiratorial liability for signing—as hundreds and even thousands did—a document like the “Call to Resist Illegitimate Authority” would have a “chilling effect—indeed that of a sub-zero blast—on all kinds of efforts to sway public opinion.” Had these defendants been individually tried for whatever substantive offenses—the substantive offenses of aiding, abetting, or counseling draft-evasion—they may have committed, the issues would have been more clear-cut. “Nowhere,” Judge Coffin observes, did the majority “examine with specificity the utility of the rifle before resort is had to the shotgun.”

Even if Coffin and Goodman are not retried, the case can hardly be said to have been a success from the stand-point of free speech and the protection of dissent, for the majority of the appellate court refused to meet that issue. Yet it may not be unreasonable to hope that as the Government continues to use the conspiracy ploy, Judge Coffin’s opinion will appeal, as it should, to the wisdom of another day.

The current rash of “political” conspiracy cases may be attributable to the development of conspiracy law in this century as a highly sophisticated, if dangerous, weapon for prosecutors. Not only is this weapon dangerous in free speech cases, it may well turn out to be not merely dangerous to defendants but a boomerang that will decapitate a few prosecutors. It was a conspiracy indictment that backfired in the case of the Oakland Seven. That indictment, initiated in California by the District Attorney of Alameda County, charged seven organizers of Stop the Draft Week, aimed at the Oakland Induction Center, with conspiracy to commit two misdemeanors: trespass and resisting arrest. The District Attorney, J. Frank Coakley, added a novel twist to the use of conspiracy law. If he had simply charged the misdemeanors of trespass and resisting arrest, the defendants would if convicted probably have received sentences of thirty days, but under California’s antiquated conspiracy statute, charging conspiracy to commit those misdemeanors converted those offenses to a felony, punishable by three years’ imprisonment.

As it turned out, the conspiracy charge was a fiasco. The prosecution’s evidence consisted largely of playing a five-hour tape recording of the all-night Berkeley campus rally that immediately preceded the Oakland demonstration. As Elinor Langer has written in describing the trial:⁵

In terms of common sense alone, they made a mockery of the charge of conspiracy. The rally was in a great tradition of open, democratic meetings. It was chaired by Mike Smith, but the microphone was open to all. Dozens of people spoke, continually contradicting each other’s politics, arguing, discussing every subject in the political world from Che to Gandhi. Opponents of the demonstration were heard as well.

From Jensen’s point of view the tapes were also a disaster emotionally. They transported the jury to a political rally—in most cases, the first of their lives.

The trial resulted in the acquittal of the defendants by the jury, a kind of low-water mark for prosecutors who like to be cute about conspiracy.

We will have to wait to see what comes of the current prosecution of the Chicago Eight, on a federal charge of conspiracy to cross state lines with intent to incite to riot. This is the first test of a shiny new statute passed by Congress last year. It may also be the test of Attorney General Mitchell’s novel doctrine that the Government has the inherent right to use electronic eavesdropping without a court order in cases involving subversive activity—whatever that means. Whether or not the Government fails before the jury or before an appellate court, prosecutors will be waiting to see the outcome of the Chicago case. If the Government takes a beating in the case and perhaps even if it does not, prosecutors will henceforth be wary of the explosive mixture of conspiracy and free speech.

At any rate, prosecutors ought to see the uncertainty in which the Spock case (to say nothing of the Oakland Seven) has left them. To put the matter briefly: prosecutors ought to refrain from using conspiracy, that last shabby resort, against those who openly engage in civil disobedience.

This brings me to a last word on Miss Mitford’s book. She concludes with a ringing declaration that somehow does not quite convince:

The one right they were denied was, of course, the most basic of all: the right not to be tried for dissent. For no matter how the formal accusation was styled (“perjury” in the case of Alger Hiss, “conspiracy to commit espionage” in the case of the Rosenbergs) behind these prosecutions lay the decision of government to move against what it deemed to be the threatening and discordant voice of opposition to the established order.

There is an enormous body of literature about these cases, volume after volume by historians and legal scholars who, in hindsight, vindicate the accused out-right or cast substantial doubt on their guilt. [p. 239]

To compare the Spock defendants with Hiss and the Rosenbergs is to confuse questions of dissent with those of espionage. The “enormous body of literature” about the Hiss and Rosenberg cases is far from supporting Miss Mitford. On Hiss I might cite the first chapter of my book, Ex-Communist Witnesses: Four Studies in Fact-Finding, in contrast to Hiss’s own effort at self-justification, In the Court of Public Opinion. On the Rosenbergs, the literature, while enormous and unreviewed in Miss Mitford’s book, is far from decisive.

Miss Mitford, I submit, should have quit while she was ahead. Not every case with political overtones presents a case of repressing free speech. At this point, the venial sin of Miss Mitford’s bias becomes almost mortal. I suspect that Rebecca West and Sybille Bedford would not have made Miss Mitford’s mistake.