Fabricated Evidence in the Kent State Killings

I

In a country so passionate about law and order it should not be necessary to remark that falsification of evidence is a crime, and agreement to do so in concert with others is conspiracy to obstruct justice. Were students to shoot down National Guardsmen or other law officers, and were the FBI then to turn up evidence that those who did the shooting agreed among themselves to tell investigators a fabricated story, it is hard to believe the news would be relegated to the back pages and met with indifference.

This—albeit in reverse—is what happened in the Jackson State and Kent State killings. In both cases, the FBI and other government agencies have turned up evidence that the Guardsmen and law officers who did the shootings also agreed among themselves to tell FBI investigators a false story. But it would take a very delicate seismograph to locate the resultant outcry. Apparently it does make a difference when the victims are only black and/or students.

In an age of instant communication, some news still seems to travel by ox cart. The fabrication of evidence in the Jackson and Kent State killings is an example. It is important because it offers another avenue of prosecution by federal grand juries, now that both the Ohio and Mississippi grand juries have refused to indict any of the Guardsmen or law officers for murder, which is a state crime.

To those who think murder is too strong a word one may recall that even Agnew three days after the Kent State shootings used the word in an interview on the David Frost show in Los Angeles. Agnew admitted in response to a question that what happened at Kent State was murder, “but not first degree” since there was—as Agnew explained from his own training as a lawyer—“no premeditation but simply an over-response in the heat of anger that results in a killing; it’s a murder. It’s not premeditated and it certainly can’t be condoned.”

Now that murder on the two campuses has been condoned by the two state grand juries, what is the federal government going to do about it? One possibility is prosecution under the civil rights statutes—and it is a commentary on the position to which students have been relegated that they, like Negroes, must look to civil rights statutes as their last resort for justice.

Another possibility is prosecution for conspiracy to obstruct justice and for making false statements to the FBI. That Jackson city police and Mississippi highway patrolmen lied to the FBI and destroyed evidence was plain enough in the Scranton Commission report on Jackson State when it was released October 1. Little attention was paid to this aspect of it, however, perhaps because the report failed explicitly to emphasize these deceptions as an area for federal grand jury action.

That there was similar evidence of fabrication at Kent State was not mentioned in the Scranton Commission report on those killings when it was released October 4. The fabrication angle of the Kent State shootings was revealed for the first time nine days later by Senator Stephen Young, Democrat of Ohio. But the news and its significance have barely begun to percolate into public consciousness.

The speech and its reception, or non-reception, by the media would itself make a useful investigation by a school of journalism. The forum Young chose for breaking the story was hardly obscure. He broke it in a speech on the Senate floor on October 13. The way he broke it was sensational, or at least it would seem so by any normal standard of news. He read to the Senate hitherto unrevealed passages from a secret report prepared in the Justice Department last July summarizing the FBI’s findings at Kent State. “We have reason to believe,” the senator quoted from this document to the Senate, “that the claim by the National Guard that their lives were endangered by the students was fabricated subsequent to the events.”

He might as well have been carrying on a soliloquy in the Capitol basement. Though advance copies of the speech were made available in the press galleries, the speech was a non-event. It went unreported by the small army of wire-service, newspaper, radio, and TV correspondents who cover the Senate.

It took ten days for the story to reach Ohio, or about the time it would take to send it by bicycle. On October 23, the Akron Beacon-Journal splashed news of the speech across the top of page one: “Young: Guards Fabricated Peril.” I was at Kent State at the time and had with me both the Young speech and a copy of the Justice Department summary on which it was based. I assumed that either the wire services or the Beacon-Journal had caught up with the Congressional Record. Not until I began to work on this account for The New York Review, did I finally uncover the real story on how the news was broken.

It began with a young New York insurance broker, Peter Davies, who was so upset by the Kent State shootings that he wrote a letter of protest to President Nixon and sent a copy to Arthur Krause, father of Allison Krause, one of the students killed. They struck up a friendship and have been working together on the case. Davies read Young’s speech in the Congressional Record on the night of October 22 and he and Krause at once began telephoning newspapers all over the country.

They called The New York Times, the New York Post, the Akron Beacon-Journal, the Boston Globe, the Chicago Sun-Times, the St. Louis Post-Dispatch, the Washington Post, and in Pittsburgh, where Krause lives, the Post-Gazette and the Press. They also telephoned CBS, NBC, and WOR in New York.

Once the Beacon-Journal broke the story, it was picked up by the AP, but only on its Ohio state service. The UPI sent out a few paragraphs on its national wire under a Kent, Ohio, dateline. But it buried Young’s speech under an account of a minor explosion at a black student headquarters on the Kent State campus.

The New York Times, after a phone call from Davies the night of October 22 and a personal visit with a copy of the Young speech on the morning of October 23, finally ran the UPI story from Kent on page 72 of its Sunday paper, October 25, but with all references to Young’s speech omitted!

The AP’s reaction was curious. The Boston Globe queried the New York office of the AP after Davies phoned the Globe with the tip the night of October 23. The Globe asked if the AP would be moving the Beacon-Journal story. The AP phoned back in an hour and said it was an old story and to ignore it. The Globe then phoned Davies who in turn phoned the AP and protested that every newsman whom he and Krause telephoned said this was the first they had heard of it.

Thereupon the AP man said that the FBI had refused to confirm the story and that the Justice Department had said Young did not have access to its files. But, as Davies pointed out to the AP man, neither the FBI nor the Justice Department had denied the authenticity of Young’s account. The AP nevertheless declined to put the story on its national wire. The Boston Globe later published the UPI account in its Sunday paper of October 25.

There was no response on TV to the phone calls. The reaction of the newspapers varied. The New York Post ran the fullest account in its weekend issue of October 24-25 but buried it so far back in the paper (page 48) that many readers, including Davies, missed it. Krause reached Ben Bradlee of the Washington Post, which ran a top story on page 4, October 25: ” ‘Fabrication’ Laid to Guard At Kent.” This pointed out that not until Young’s October 13 speech “had the question been raised of the Guard’s consciously inventing an excuse for its conduct.”

On October 27 I showed the thirty-five-page Justice Department summary of the FBI findings on national television during the Dick Cavett show and read the passage about fabrication. The next day James Wechsler of the New York Post was the first and (so far as I Know) the only columnist to analyze the Young speech and its implications. A day later a New York Times reporter called to ask me where I had obtained a copy of the Justice Department summary. (I refused to disclose the source.) On Saturday, October 31, The New York Times published excerpts from the hitherto unpublished summary with a story of its own, which did a first-rate job of comparing the FBI findings with the report of the special Ohio grand jury. But, inexplicably, it buried the fabrication reference on an inside page; and it failed to publish an important part of the Justice Department’s summary concerning fabrication (of which more later). In an editorial November 7, The New York Times called for a federal grand jury to investigate the Kent State shootings but did not mention the FBI’s findings that evidence had been fabricated.^*

II

“A significant cause of the deaths and injuries at Jackson State College,” said the Scranton Commission report on the killings there, “is the confidence of white officers that if they fire weapons during a black campus disturbance they will face neither stern departmental discipline nor criminal prosecution or conviction.” This view, it added, “received confirmation by the Mississippi Highway Safety Patrol investigation and by the report of the Hinds County Grand Jury.” After the report on the Kent State killings by the Ohio special Portage County grand jury, law officers may feel as free to shoot white students as they do black.

Federal grand jury action in both cases would demonstrate that the nation will not allow a double standard of law and order, that official lawlessness and overreaction will be punished, too, as a deterrent for the future. The alternative is to leave a rankling sense of injustice on the nation’s campuses. This has already deepened the gulf between the generations, as police brutality had long deepened it between the races.

In Mississippi, the local police lied to the mayor and the FBI when they denied that they fired at Jackson State, as the Hinds County grand jury itself recognized. The police replaced their ammunition after the shootings to fool the mayor when he inspected their guns. They and the highway patrol disposed of the shell casings after the shooting to prevent their use as ballistic evidence. But the state highway patrol, while it got rid of its own shells, saved some of those fired by city police so that they could, if necessary, disprove the earlier story that the highway patrolmen alone had fired.

Neither the city police nor the highway patrol told the FBI they had disposed of this critical evidence. Not until a special federal grand jury was convened last June and issued subpoenas did the highway patrol admit that it held any shell casings and hand them over to the FBI. The Scranton report said the FBI then traced these shells back to city policemen and “when confronted with this fact at least three city policemen admitted shooting.”

This cries out for further investigation. A federal false claims statute makes it a felony punishable by a fine of $10,000 or imprisonment of up to ten years or both to make a willfully false statement to any agency of the US government. The facts as known raise the possibility of a conspiracy to destroy evidence and obstruct justice. But the special federal grand jury in Mississippi recessed last June after one week of activity during which it heard only a few witnesses and turned over the few remaining shell casings to the FBI. There should be a nationwide demand for its reactivation and for convening another special federal grand jury in Ohio to make a similar investigation of what happened at Kent State.

What has come to light so far is but a meager portion of the information gathered. So far two FBI summaries concerning Kent State have surfaced. These were prepared by the civil rights division of the Justice Department for possible federal prosecution, and copies were sent to the Ohio authorities for their use. The first was a ten-page memorandum, the main contents of which leaked last July to the Akron Beacon-Journal. The story was then picked up by other papers when the civil rights division confirmed the existence of this summary.

That earlier summary, unlike the single-spaced thirty-five-page summary from which Senator Young read to the Senate, does not seem to have contained any reference to the possibility that some Guardsmen got together and fabricated their story of the shootings. I am told that the FBI was asked by the Scranton Commission to look further into this angle; a federal grand jury could learn what further report, if any, was made by the FBI. One passage of the thirty-five-page FBI summary that The New York Times did not publish says, after explaining why there was some reason to believe Guardsmen had fabricated their story of being in danger:

Additionally, an unknown Guardsman, age 23, married, and a machinist by trade, was interviewed by members of the Knight newspaper chain. He admitted that his life was not in danger and that he fired indiscriminately into the crowd. He further stated that the Guardsmen had gotten together after the shooting and decided to fabricate the story that they were in danger of serious bodily harm or death from the students.

The published newspaper article quoted the Guardsman as saying: “The guys have been saying that we got to get together and stick to the same story, that it was either our lives or them, a matter of survival. I told them I would tell the truth and couldn’t get in trouble that way.”

This interview was included in an eight-page special issue on the Kent State shootings published by the Akron Beacon-Journal last May 24. It was the work of a team of Knight newspaper reporters, one of the finest and most courageous examples of American journalism I have encountered. Its conclusions were confirmed by the first ten-page summary of the FBI findings, the main contents of which were published by the Akron Beacon-Journal last July 23.

“FBI: No Reason For Guard To Shoot At Kent State” was the two-column headline across its page one that day. It quoted the ten-page FBI summary as finding that the shootings “were not necessary and not in order.” Though publication of this story drew an angry letter to the Beacon-Journal from J. Edgar Hoover, he did not challenge the content of the story but only the use of the word “conclusions” in reporting what the FBI had found. Hoover said the FBI never makes conclusions but only reports the facts as found to the Justice Department.

Apparently Hoover was upset because the facts turned up on the wrong side of the political fence. One top Washington source told me that the FBI men assigned to investigate started out with a strong bias against the students and ended up pretty much on the other side.

The same section of the Knight newspaper report, from which the newly disclosed FBI summary quotes the passage above, also gives examples of the kind of fears and rumors to which the Guardsmen were subjected. “Some,” the Knight newspaper reported, “said they feared they would be activated and sent to Vietnam if they talked about what happened.”

The question which immediately comes to mind after reading the passage I have quoted from the FBI summary is why the FBI, with one hundred or so investigators on campus, was content to quote the Knight newspaper story without investigating on its own. When I inquired, I was told by one Scranton Commission source that the Commission asked the FBI to locate the anonymous machinist Guardsman and to try to verify his story. Obviously he would be a key person in any investigation of the fabrication angle. I have been unable to learn whether and what the FBI reported in response to this directive.

From another Scranton Commission source I also learned that the raw FBI depositions from Guardsmen excited suspicion because about thirty of them used virtually identical phrases in describing their danger from the students. “It sounded like that movie Z all over again,” this source told me.

The Ohio grand jury doesn’t sound at all like the movie Z. Though no less than three special prosecutors were appointed to direct it, not one showed the movie prosecutor’s passion for sniffing out fabrication. On the contrary the most prominent of the three has since revealed a ferocious bias. This was Seabury Ford, sixty-eight-year-old chairman of the Portage County Republican Party. He told the Akron Beacon-Journal, October 24, that the National Guard “should have shot all the troublemakers.”

It was hardly surprising after that to learn how slackly the grand jury proceedings were run by these prosecutors. The chief prosecutor, Robert Balyeat, has now admitted that the Justice Department summary containing the reference to fabrications by the Guardsmen had not been submitted to the grand jury. His excuse—that it was not normal practice “to present to the grand jury conclusions that have been prepared by another investigative body. The Scranton Commission report was not presented either” (Anthony Prisendorf, New York Post, November 3).

This sounded reasonable until the Akron Beacon-Journal a week later discovered that the prosecutors had held back not only the Justice Department summary but a key witness mentioned in it. The Beacon-Journal (November 10) learned that National Guard Captain Raymond Srp (not a misprint, that’s how he spells his name) was never called before the grand jury. The Beacon-Journal said his lawyer confirmed this fact.

This is important because Captain Srp was the highest ranking Guard officer cited by the FBI investigators in explaining why they came to believe that the other Guardsmen were lying when they said that they shot because their lives were in danger. The Justice Department’s thirty-five-page summary, just before it gets to this revelation, says,

Six Guardsmen, including two sergeants and Captain Srp of Troop G, stated pointedly that the lives of the members of the Guard were not in danger and that it was not a shooting situation.

Apparently the prosecutors, in failing to call this Guard captain as a witness, were not too anxious to get the full story before the grand jury. Had it heard Captain Srp it might not have been so ready to absolve the Guardsmen who did the killing.

These newest revelations strengthen the case for impaneling a new grand jury in Ohio or a special federal grand jury or both. In either case the public should demand the appointment of a special prosecutor of such stature and independence that he can be trusted to insist on a free hand and to pursue the investigation with a zeal the special prosecutors on the Portage County grand jury never showed, except per-perhaps in an eagerness to whitewash the National Guard.

Ideally the newly elected Democratic governor and the newly elected Democratic attorney general of Ohio ought to empanel a new state grand jury. The Kent State affair has been deeply entangled in state and national politics. Retiring Governor Rhodes and his attorney general had hoped to ride an inflammatory campaign against the students to victory in their party primary. They failed, and the Republican Party then failed to defeat the Democrats by exploiting antistudent feelings as Nixon did nationally.

The special Portage County grand jury was a pawn in this dirty partisan game. Not to absolve the National Guard would have been to condemn Governor Rhodes who made the decision to put them on the campus. Now that this game has failed at the polls, it is the duty of the victorious Ohio Democrats—and a test of their courage—to start the investigation afresh and see that justice is done. Otherwise the only alternative is a national campaign for a federal grand jury.

A federal grand jury would have the power to subpoena not just civil rights division summaries of FBI reports but the raw reports themselves. The Scranton Commission said it had the benefit of 8,000 pages of reports by the FBI. A federal grand jury could also obtain the record of the investigation the Ohio National Guard made, the results of which were submitted to the Ohio grand jury. It might prove fruitful to compare the stories told by the Guardsmen to the FBI and the stories they told the National Guard investigators. Governor Scranton and members of his Commission have a duty now to speak out more plainly for a federal grand jury. In making their own report, they were inhibited by the fact that at the time the Ohio grand jury had not yet reported. The Scranton Commission said its task was “especially sensitive” because:

At the outset of the investigation, the Kent incidents had not been placed before any grand jury, either county, state or federal. During our investigation, the Attorney General of Ohio announced the convening of a state grand jury. The grand jury began proceedings in September as this report was being written. We deem it of paramount importance that the Commission do nothing to interfere with the criminal process. We therefore have not sought to establish and report the names of persons who might be guilty of city, state or federal offenses….

But now that the Ohio grand jury has turned in a report absolving the Guardsmen, blaming the college administration, and indicting only students and one faculty member, the Scranton Commission should be free to get at the full story. The Ohio grand jury flatly contradicts the Scranton report and the FBI findings as summarized by the Department of Justice. Where the Commission found the shootings “unnecessary, unwarranted and inexcusable,” the grand jury report declares that the Guardsmen “fired their weapons in the honest and sincere belief and under circumstances which would have logically caused them to believe that they would suffer serious bodily injury had they not done so. They are not, therefore, subject to criminal prosecution under the laws of this state for any death or injury resulting therefrom.” This amounts to an invitation to shoot again in the future.

III

In its main report the Scranton Commission last September concluded that “only the President can offer the compassionate, reconciling moral leadership that can bring the country together again,” and that he alone had “the platform and the prestige to urge all Americans, at once, to step back from the battlelines into which they are forming.” The New York Times in an editorial November 7, “Unjustified Gunfire,” on Kent State, said, “Now that the political campaign is over…this action is more than ever in order.”

But the campaign itself showed how hollow is this hope. Nixon used the platform of the campaign for leadership in the opposite direction. Four days before the Kent State killings he assailed the radicals as “campus bums” and at Phoenix in the final hours of the campaign he had escalated the rhetoric to the point where he was assailing them as “the same thugs and hoodlums that have always plagued a good people.”

One has to be far gone in self-deception to hope that a man who talks such blind nonsense will now turn around and become compassionate and reconciling. Campus radicals tend to include the best and most sensitive students, not the “bums”; the desperate white and black radicals who have turned to violence would be much easier to deal with if they were simply “the thugs and hoodlums that have always plagued a good people.” Student violence is mindlessly self-destructive but ending it will require an effort to understand the sources of the desperation that underlies it. Nixon campaigned not only against the extremists but against those who seek reconciliation by understanding, by social reform, and by reducing to a minimum the official violence that American society takes for granted.

As Nixon said at Phoenix, “Everyone denounces violence.” The choice, he said, is between those like himself who believe in tough law enforcement and those who hold “that violence will end as we end the war…that violence will end as we end hunger and poverty in America.” This dangerously oversimplifies the real issue and points a course toward greater division and deeper unrest. It spells more trouble on campus. It is the duty of Governor Scranton and his fellow commissioners themselves to take up the task of moral leadership they had urged on the President, awake the country to the injustices at Jackson and Kent State, and fight for federal grand jury action under independent prosecutors lest “law and order” continue to seem only a synonym for repression.