The conspiracy trial, once a familiar feature in the American political landscape, has returned. In the last five years, the Reagan administration, without attracting much attention, has prosecuted a series of federal political conspiracy trials reminiscent of the Nixon/Mitchell antiwar movement conspiracy prosecutions of the late 1960s and early 1970s. The current trials are characterized by broad-ranging conspiracy indictments, investigative grand juries, informants, and hostile publicity. Even when they end in acquittal or suspended sentences, these trials drain resources, tarnish reputations, and divert movements. Those that end in convictions have sent activists to jail, some of them for life.
But beyond the consequences for the individual defendants emerges a disturbing pattern that may well have broader effect. Conspiracy indictments have long been criticized for the advantages they give to prosecutors, easing the way for convictions. Under “conspiracy” one can be guilty of a crime of association and planning without actually having carried out any other criminal act. And the testimony of one co-conspirator (which could be excluded as hearsay in most criminal trials) can be sufficient basis for sending someone to jail. The recent wave of federal conspiracy trials benefits from these relaxed evidentiary rules. However, in addition, the Reagan Justice Department has utilized a host of newer devices—(1) preventive detention, (2) anonymous juries, (3) extraordinary courtroom security, (4) unprecedented invasions of privacy as part of FBI information gathering, and (5) motions in limine to preclude the defense’s presentation of their case to the jury—which further shift the balance in favor of the prosecutor and against the accused. These tactics affect the fairness of the trials, and put in place some frightening constitutional precedents that impact on civil liberties for all of us.
In preparing this article we have focused on seven recent prosecutions in which a number of these newer devices were utilized. Probably the first was the Brinks trial—the federal RICO conspiracy trial of underground radicals and others associated with the Black Liberation Army (BLA), who were charged with the attempted robbery of a Brinks armored truck in Nyack, New York, in 1980.* A guard and two policemen were killed during the robbery attempt. Four people were convicted in the initial federal trial and are currently serving sentences ranging from 12 1/2 to 40 years—the maximum sentences possible for the crimes for which they were convicted. An additional five people are serving sentences on state charges stemming from the same robbery. At least ten people were jailed for civil contempt, for refusing to cooperate with the federal grand jury convened to investigate the robbery. And still others have been prosecuted for aiding the Brinks defendants, or for possessing weapons and planning prison escapes for the same group.
A second prosecution in which a number of these methods were pioneered—most notably “preventive detention”—was the 1984-1985 prosecution of the “New York Eight”—a collective of nine black radicals charged with weapons possession and conspiracy to carry out a prison escape. Primarily middle-class and well-educated, the “eight” received substantial support from the black community and were eventually acquitted of most charges after a four-month trial.
More recently, in its conspiracy prosecution of “the Ohio Seven,” a number of these devices were again put to use. The Ohio Seven are white activists from predominantly working-class backgrounds, some with a long history in the anti-Vietnam War and prisoners’ rights movements. They were charged with a long series of United Freedom Front bombings related to South Africa and Central America (among them a bombing of South African Airways). In a trial that ended in late March 1986, all seven were convicted of conspiracy as well as varying counts of bombing, and received sentences ranging from fifteen to seventy-seven years. They still face RICO charges in Boston for the same bombings, as well as bank robberies.
Also included in our survey are the Chicago trials of five Puerto Rican independentistas for “seditious conspiracy,” in 1982 and 1984, and the grand juries impaneled to investigate bombings by the FALN (an armed clandestine group supporting Puerto Rican independence). More than a hundred people have been jailed for refusing to testify before these grand juries, some for periods of several years.
Most recently, these prosecutorial devices have been expanded in the government’s case against “the Hartford Sixteen.” The defendants—Puerto Rican independentistas—have been charged with the 1983 robbery of a Wells Fargo truck in Hartford, Connecticut. Victor Gerena—the Hartford resident and Wells Fargo employee who allegedly carried off the heist and then reportedly fled to Cuba—has become somewhat of a folk hero for the Latino community in Hartford. Over seven million dollars was stolen in the robbery, some of which was later used to purchase and distribute thousands of dollars’ worth of toys to neighborhood children in Hartford and Puerto Rico on Three Kings Day. In pretrial hearings and press reports, the government has linked the defendants to a Puerto Rican “terrorist” group, “Los Macheteros” (the Machete Wielders). Nine of the sixteen have been held in “preventive detention” since their arrest in August 1985.**
Finally, although in a somewhat different vein, some of the same prosecutorial devices have been used in the government’s recent “Sanctuary” investigation and trial. Sixteen religious sanctuary workers were charged with a conspiracy to smuggle, transport, and harbor illegal aliens, for their actions assisting Central American refugees. After a seven-month trial, eight of the eleven defendants who stood trial were convicted, although they were given only probationary sentences.
Except for Sanctuary, the cases we have focused on involve at least the rhetoric of political violence. Only the Sanctuary defendants have tapped popular support comparable to that given political conspiracy trials in the 196os and early 1970s. Although some defendants, notably the New York Eight and the independentistas, have received substantial support from the black and Latin communities, on the whole the government has been able to limit these defendants’ rights without meeting a great deal of outcry.
What follows is a discussion of some of the patterns that emerge from our survey of defense attorneys, media reports, Justice Department documents, trial papers, reported opinions, and defendants related to these seven cases. Our discussion is not meant to be exhaustive, but merely illustrative of some of the dangers to which these cases point.1
GUILTY BEFORE TRIAL: Preventive Detention
Preventive detention means holding someone without bail, before trial, based not on what they have done, but on what they might do if released. The term usually calls to mind countries like South Africa, where blacks can be detained indefinitely on the mere charge that they have engaged in an act or utterance that embarrasses the state; or like Northern Ireland in the early 1970s, where the policy of “internment” allowed for the roundup and detention of all those believed to be associated with the IRA (Irish Republican Army). Less known is that here in the United States, preventive detention was written into the federal criminal justice law for the first time in October 1984 as part of the Bail Reform Act.2
Although directed toward major drug offenders, since its passage at least thirty-five political activists have been held without bail under its provisions. One of the first victims was Coltrane Chimurenga, one of the New York Eight defendants. Chimurenga was held in preventive detention for seven months, although his trial ended in his acquittal. Another victim of the statute, Dr. Alan Berkman, a New York physician, has been held in preventive detention since May 23, 1985, on charges of harboring and giving medical treatment to Brinks robbery fugitives, as well as on charges of weapons possession. He has since developed cancer and could not obtain adequate medical treatment in prison. At a subsequent preventive detention hearing, held to reconsider his detention without bond, the government argued that Dr. Berkman’s cancer made him even more dangerous to the community, as he might carry out a suicide mission if released. The judge continued his preventive detention.
The preventive detention hearing allows the prosecutor to present witnesses and testimony as to the beliefs and associations of the accused. Such information—which would not be admissable at the actual trial—is considered grounds for detaining the defendant without bond, and also receives wide press coverage. For example, in the Hartford case, defendants were indicted for an armored car robbery in which no one was injured. At their preventive detention hearings, however, the prosecution linked them to a fatal 1982 attack on a navy bus and a 1981 bombing of National Guard fighter planes in Puerto Rico.3 Although the defendants have never been charged with these incidents, the press has continued to repeat these charges.
Backed by civil liberties organizations, the Hartford defendants challenged the preventive detention law in the Second Circuit Court of Appeals, which on May 2, 1986, held it unconstitutional as applied to several of the accused. Writing for the majority, Judge Jon O. Newman stated that jailing people to prevent their committing a future crime is a “police state approach,” and warned of the dangers that this posed.4 Despite this, the court refused to release the defendants on bail pending the government’s appeal to the Supreme Court. Currently two of the sixteen defendants have been imprisoned for over a year. With the trial not scheduled to begin for another six months, and expected to last at least six months, these defendants could end up spending three years in jail before they are even judged guilty, or acquitted. Unfortunately, in a different case, U.S. v. Salerno (May 1987), the constitutionality of the preventive detention laws was upheld by the Supreme Court.
Anonymous juries keep defendants from learning the names of jurors, or where they work or live. Pioneered in major drug cases to protect jurors from intimidation or retaliation by organized crime, the Reagan Justice Department has begun using this device in political trials as well. Despite the lack of evidence of actual danger to jurors in these cases, anonymous juries have been granted—and upheld by the Second Circuit—in a number of Brinks-related trials as well as the criminal contempt prosecution of Julio Rosado, for failing to testify before the Puerto Rican grand jury.5 The effect of such juror anonymity is twofold. First, it hampers the critical jury selection process, since defendants cannot fully question jurors as to their potential prejudice or bias. Secondly, and perhaps most importantly, it communicates to jurors, even before the trial begins, that the defendants are dangerous and probably guilty.
Usually the jury is the wild card in the trial process, where the government has least control. Today, when almost one-half of the supposedly impartial federal judiciary are Reagan appointees screened for their right-wing political out-look,6 juries are critical. Popular skepticism about the veracity of government agents threatens a Justice Department that wants convictions. For example, the Nixon administration suffered a number of defeats in political trials where juries were unwilling to believe the elaborate schemes charged by the government and their informers (for example, the acquittal of the Panther Twenty-one and Harrisburg Eight). More recently, the New York Eight jury clearly rejected the government’s theory that this collective of black professionals and community organizers represented a dangerous criminal conspiracy.
The Armed Courtroom
Military-style arrests and obtrusive security in and around the courtroom also add to jury perceptions, as well as the general public’s that the defendants are dangerous and guilty. During the Ohio Seven trial, as many as twenty-five marshals were in the courtroom at a given point. At one point, defendants were beaten and stun-gunned when they insisted on reading their prepared statements in court. They remained dazed for several hours as a result of the electric shocks. Susan Rosenberg and Timothy Blunk, two other post-Brinks defendants, were sped back and forth to court each day through the Holland Tunnel, with a convoy of armored cars. The tunnel was closed down, and at times helicopters flew overhead.
The Hartford case, too—although it has not yet gone to trial—has already seen extraordinary security. At the defendants’ first court appearance in Hartford, Connecticut, September 3, 1985, the New York Times reported,
“Sharpshooters patrolled roads, police dogs sniffed the area surrounding the courthouse for bombs, and police barricades closed a downtown street. . . . All 11 suspects wore handcuffs that were locked to chains around their waists. . . . Outside the courthouse police officers armed with shotguns and tear gas rifles stood guard.”7
The San Juan Star for the same day reported, “The U.S. District Courthouse was turned into a virtual armed camp. All those entering the courtroom had to pass tight security that included metal and x-ray detectors.”8 One defense lawyer was quoted as commenting, “You have a small army outside in military uniform, which would taint any prospective juror.”9
Sensational press adds to the tense atmosphere. In an unusual step in the 1984 Chicago Puerto Rican seditious conspiracy trial, the judge allowed NBC and ABC-TV to enter the case as intervenors. The judge recognized that the media was a party in the case, that is, had a legal interest in the outcome their concern about the “charges of domestic terrorism.” While denying the networks instantaneous access to the video surveillance evidence unfolding court, the judge promptly released these tapes during trial recesses.
Gathering Information from Children, Church, and Home
With the continued erosion of Fourth Amendment protections against unreasonable search and seizure, convictions become easier as information is gathered from people and places formerly considered off limits. Recalling the Orwellian image of the child spying on and reporting to authorities about his parents, children have been detained and interrogated. The children of Ohio Seven defendants Tom and Carol Manning, ages 3, 5, and 11, were held in state custody for two months following their parents’ arrest, and could not even be contacted or located by attorneys. The children were initially held in police headquarters and then put into a state home in Norfolk, Virginia, where their parents had been arrested. Only when the Mannings went on a hunger strike and dozens of letters arrived from social-work and child-care organizations, as well as supporters and family, were the children released to family members. While held by the state, the children were interrogated by both state and federal officials.10 During the FBI’s investigation of the Mannings, prior to their arrest, the FBI printed “Wanted” posters with the children’s pictures, and contacted day-care centers and doctors’ offices in three states to enlist help in finding the children.
In the Chicago seditious conspiracy case, the bulk of the government’s evidence came from 130 hours of videotape obtained from tiny cameras hidden in the kitchens, bedrooms, and bathrooms of two Chicago apartments. The district court excluded the tapes from trial use as clearly violative of defendants’ Fourth Amendment rights to privacy and freedom from unreasonable search and seizure. But on appeal, the circuit court judge, Richard Posner, a Reagan judicial appointee writing for the panel, allowed the tapes in. He admitted that judicial approval of such surveillance was unprecedented and that overuse of it would “eliminate personal privacy as understood in modern Western nations.” But he allowed the tapes in on the grounds that earlier FALN actions, for which these defendants were not on trial, had cost human life.11
The FBI investigations in the New York Eight, Sanctuary, and Hartford cases also involved extensive electronic surveillance and use of informers. In the case of the Sanctuary investigation, two informers infiltrated and recorded hundreds of hours of conversation at Bible study classes and church meetings.
Limitations on Defenses
Many of the defendants in these cases have been forbidden to put on their defense or explain the contexts for their actions. Motivation has been ruled irrelevant. A political trial tends to be a struggle between the government’s portrayal of defendants as criminals without humanity or ideals, and the defendant’s efforts to show that they, not the government, have both. For example, during the sixties many defendants accused of raiding draft board offices admitted their actions; yet jurors returned not guilty verdicts after hearing their “justification” or “necessity” defenses—that they believed they had a responsibility to act to call attention to an unjust and illegal war. Because such defenses can win acquittals, since the sixties conspiracy trials the government and many judges have narrowed the defense field drastically.
In a series of pretrial rulings, the Sanctuary trial judge, Earl H. Carroll, virtually precluded any such defense. The defense attorneys, under threat of contempt, could not present any testimony related to how the defendants believed their actions were legal, that is, their belief that those they sheltered were political refugees entitled to stay, or testimony as to conditions in Central America and the protections refugees are entitled to under international law. The defendants were not even allowed to testify as to their religious motivation.
Despite governmental denials, the political nature of these trials is inescapable. At the sentencing of post-Brinks defendants Susan Rosenberg and Timonthy Blunk on charges of conspiracy to possess and possession of explosives and weapons, the New Jersey federal court judge excoriated them for their political motivations. “If it became necessary to do so, you’d not have the slightest hesitancy or suffer any compunction of conscious[sic] in robbing and murdering,” he said, and suggested that the defendants read “The God that Failed,”—a book written by disillusioned ex-Communists. At the same time, however, he charged that defendants’ “distorted rhetoric about this being a political trial is best described as `hogwash.”‘12 Rosenberg and Blunk were sentenced to 58 years, on charges that usually carry an average sentence in federal court of 67.3 months, that is, about 5 1/2 years.13
THE BATTERING RAM
Any one of these government tactics could seem innocuous. However, in concert in any one prosecution, they profoundly tip the scales against the defendants. Seen as an emerging pattern over a series of cases, they represent real changes in the rights guaranteed the accused.
The prosecutions assure that these defendants are convicted and given long prison sentences. But they have a wider impact as well. The Reagan administration’s ideological agenda has included moving the legal system to the right:
abolishing the constitutional protections of the Warren Court and narrowing 297 the conception of due process. The administration has complained about coddling criminals and about judicial activism. It seeks to resurrect an archaic view of the Constitution, and is setting back the clock on women’s rights, affirmative action, and economic rights.
Using the court system gives a legitimacy to the Reagan repressive package which purely executive action might not carry. These cases lend themselves to this administration’s purpose. With the exception of the Sanctuary case, they are not popular, nor are they accurately reported. This makes them the perfect battering ram for an assault on the justice system that has offered some protection to the accused. It is difficult to organize opposition to anonymous juries and preventive detention when they are used in trials of so-called terrorists. When a group is called “terrorist”—even if it is for a nonlethal bombing of a South African Airways building, as in the case of the Ohio Seven—even civil libertarians are less likely to care that the government is intimidating them through their children. A pattern emerges behind these prosecutions that goes beyond the borders of law enforcement: constitutional erosion, and elaboration of the terrorism scare.
The persistent waving of the terrorism flag covers up a pattern of denial of rights for political prisoners and the criminalization of people fighting for change. The terrorist label is broadly used—not only against people who profess or use violence. In the Hartford case involving a Wells Fargo robbery, those arrested were labeled terrorists with connections to Cuba. The day of the Hartford/Puerto Rico arrests, Attorney General Meese stated “the indictment is a signal to terrorists and their supporters that our response to their cowardly acts will be decisive. The goal of our terrorism program is to eliminate terrorism from our shores.” 14
Terrorism tends to be a status crime: once labeled, it is a status next to impossible to shed. Once the government achieves the isolation and criminal-ization of part of a movement, the stripping of its rights and the long-term imprisonment of its activists more easily follows. The press, local police forces, and terrorism experts from private think tanks piovide the ideological justification for these steps.
The far right continues to pressure the administration for a more aggressive domestic counterterrorism using military methods, including covert action and preemptive strikes. In September 1984, the Heritage Foundation released the report of Samuel T. Francis, aide to the late Senator John East (R-North Carolina), urging the administration to act literally on Secretary of State Schultz’s definition of terrorism: “a form of war.” Heritage argues, “terrorism is a problem of national security, and not only law enforcement but also military and national security measures and agencies should be used against it.”15
OPPOSITION AS ILLEGITIMATE
These prosecutions send a message to those who engage in action to oppose the administration’s policies, even peaceful and legal action. Opposition to the inroads on civil liberties in these cases is seen as supporting terrorism. But so is simple opposition to U.S. intervention in Central America or colonialism in Puerto Rico. Recently discovered FBI documents single out organizations such as the Committee in Solidarity with the People of El Salvador (CISPES) as a target in a counterterrorism investigation.16 The effect is not only to make it difficult to support those on trial, but to illegitimize opposition.
This is a typical function of a political criminal trial. It reduces problems to those of law and order and criminalizes left-wing political ideas and action. Keeping the defendants’ political justification out of a trial not only makes conviction easier but stigmatizes the movement. In the Sanctuary trial, where there was no doubt about the religious, moral, and political motivation of the defendants, they were precluded from testifying to it because of the court’s in limine ruling. At the same time, the government was free to tell the jury that the defendants were smugglers, and introduced an informant to claim they did it for money. Whereas in most criminal trials this would have opened the door for defendants to testify as to their motivation, the judge kept it closed. In the New Jersey weapons-possession prosecution of Blunk and Rosenberg, the prosecutor submitted a list of fifty-four forbidden words or phrases: among them “Central America,” “Nicaragua,” “Reagan’s repressive legislative package.” A Puerto Rican independentista tried for seditious conspiracy in Chicago was not allowed to present testimony as to the colonial status of Puerto Rico or as to why seditious conspiracy is an “impossible crime” (since, in his view, the United States has no legitimate jurisdiction in Puerto Rico).
The government has convened broadly investigative grand juries in these cases and jailed over a hundred family members, neighbors; and political coworkers for refusing to testify. In the Puerto Rican cases, criminal contempt charges, following as much as three years’ incarceration for civil contempt, added three more years to peoples’ sentences, merely for refusing to give information. The threat of a subpoena and of possible criminal prosecution for contempt operates as a warning to all associated with the Puerto Rican independence movement that association alone can mean years in jail.
The extensive surveillance and information-gathering chills political activities. Speaking on the phone or in one’s own house becomes risky: Children must be insulated from political discussion. The essential trust in one’s friends, in political groups, and in the sanctity of the church is breaking down.
The criminalization of politics prevents the growth of a more effective, broader, and more activist left. The repressive strategies against the black liberation and anti-Vietnam War movement were only set in motion fairly late, as the Cold War ideologues belatedly realized the power these movements generated while they were looking for 1950s-style Communists. This made it difficult for the repression to work without being heavy-handed. As repressive responses to popular movements, COINTELPRO was effective but only by the use of assassination, frame-up, and dirty tricks, all of which caused public indignation when later exposed. This administration has learned from the past and is not making the same mistake. By putting these new measures into place at this stage, they will have the statutes and the judicial precedents available for the future if government policy is seriously threatened from the left.
- Some of the tactics we refer to have been used in recent federal as well as state conspiracy prosecutions of antinuclear protesters. We welcome correspondence from readers as to other recent cases where these tactics, or others, have been utilized.
- For the first time under federal law, defendants may be held without bail because of “the natures and seriousness of the danger to any person or the community that would be posed by their release.” See Bail Reform Act of 1984, 18 U.S.C. 3141.
- See John Riley, “Preventive Detention Use Grows—But Is It Fair?” New York Law Journal, March 24, 1986, pp. I, 32-33.
- S. v. Melendez-Carrion, 790 F. ad 984 (2d Cir. 1986).
- S. v. Rosado, 728 F. 2d 89 (2d Cir. 1984).
- Eric Effron, “Tug of War Toughens on Judicial Picks,” National Law Journal, March 31, 1986.
- New York Times, September 4, 1985.
- San Juan Star, September 4, 1985.
- Three children of two other “Ohio Seven” defendants, Jaan Laamen and Beshard Curzi, were also detained and interrogated following their parents’ arrests.
- U.S. v. Torres, 751 F. 2d 875 (7th Cir. 1984).
- U.S. v. Rosenberg, (U.S.D.C. for New Jersey), sentencing transcript, May 20, 1985.
- U.S. District Court Sentences Imposed Chart for June 1983-June 1984.
- Quoted in UPI dispatch August 31, 1985.
- “Dealing with Terrorists: A Better U.S. Policy Is Needed,” prepared by Samuel T. Francis for the Heritage Foundation, in Backgrounder, 382 (Sept. 20, 1984), p. 12.
- Documents obtained by Movement Support Network—an antirepression project of the Center for Constitutional Rights, which monitors government misconduct—as a result of Freedom of Information Act requests to the FBI on behalf of Central America groups and activists. See also Boston Globe, Mar. 26, 1985, morning edition, Ross Gelbspan, “Opponents of U.S. Latin Policy Charge FBI Harassment”; see also Dallas Morning News, Apr. 6, 1986, front page, Christi Harlan, “The Informant Left Out in the Cold,” about an FBI informant who infiltrated CISPES for several years, 1981-1984; Alfonso Chardi, Arizona Daily Star, Nov. 16, 1986, “Reagan Reportedly O.K.’d so Covert Acts” documenting a three-year operation on the part of the CIA, FBI, and NSA to monitor the activities of opponents of U.S. Central America policy and the Sanctuary movement.
Excerpts of this essay were published in Counterattack 1 (September 1987): 3–4, 14.
*The reference to the RICO conspiracy trial refers to an indictment under the Racketeer Influenced, Corrupt Organizations Act. [Ed.]
** Eight of the nine defendants originally held have now been released on bail. [Ed.]