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Legal Questions Before the Federal Courts
1. Were the seven defendants guilty of engaging in a conspiracy to incite a riot?
No, said the jury in the district court trial.
The indictment described a conspiracy of the eight defendants, eighteen unindicted coconspirators, and other unknown persons, who traveled in interstate commerce with the intent to incite a riot and to commit overt acts to promote and carry out the riot, all in violation of a recent statute passed by Congress in response to the urban riots of the mid-1960s. The defendants were also accused of conspiring to teach the manufacture and use of incendiary devices and to interfere with the official duties of firemen and law enforcement officers. The indictment specified meetings at which various defendants planned the demonstrations and confrontations with law enforcement officers. The indictment also listed speeches and meetings that allegedly constituted the overt acts required for conviction under the Anti-Riot Act.
The government prosecutors argued that the defendants shared a “tacit understanding” of their common goal of provoking a riot, although the eight never met as one group. The defense attorneys described the conspiracy charge as absurd on the face of it, and directed most of their arguments to disproving the charges of intent to incite a riot.
2. Did the defendants violate the Anti-Riot Act by using interstate commerce with the intent to incite a riot and by committing at least one overt act to promote a riot?
The jury found five defendants guilty of the charge. The U.S. court of appeals reversed that decision because of errors by the trial judge but found that some of the evidence might be sufficient for conviction if the government chose to retry the five persons in individual trials.
The indictment charged David Dellinger, Rennie Davis, Tom Hayden, Abbie Hoffman, Jerry Rubin, and Bobby Seale with individual violations of the Anti-Riot Act. The indictment specified evidence of intent prior to interstate travel and evidence of overt acts by which each of the six defendants incited a riot during the convention week in Chicago. Seale’s case was separated from the others by Judge Hoffman, and the remaining five defendants charged with intent to incite a riot were found guilty by the jury.
The U.S. Court of Appeals for the Seventh Circuit reversed the convictions, but concluded that the evidence presented for each defendant might reasonably be interpreted by a jury as proof of guilt. In their detailed review of the evidence against each defendant, the three judges who heard the appeal found that the evidence of overt acts of inciting a riot was clearer than the evidence of an earlier intent to incite a riot. One of the judges did not find any reasonable evidence of earlier intent in the case of Dellinger. The court of appeals judges did not conclude that any of the defendants was guilty, only that a jury might determine guilt or innocence based on the evidence presented at the original trial.
The court of appeals left for the government the option to retry any or all of the defendants, but the court commented on several issues that were likely to arise in a new trial. The court of appeals dismissed the defendants’ claim that the testimony of undercover policemen violated their constitutional rights, and it denied that defendants had a right to address the jury. In a decision that may have convinced the government not to retry, the court of appeals, citing a recent Supreme Court decision, said that in any further proceedings, the defendants had a right to review logs of the government’s electronic surveillance of them and a right to a hearing to determine if evidence obtained through that surveillance violated the defendants’ constitutional rights.
On January 4, 1973, Attorney General Richard Kleindienst announced that the government would not retry any of the defendants on the charge of intent to incite a riot.
3. Were John Froines and Lee Weiner guilty of instructing demonstrators in the manufacture and use of incendiary devices?
No, the jury found Froines and Weiner not guilty of the charge.
The indictment charged Froines and Weiner with teaching people how to make and use an incendiary device and with the intent to incite civil disorder and to disrupt interstate commerce through the use of such devices. The U.S. attorneys called on undercover policemen for testimony that Froines and Weiner had discussed plans to use flares as weapons, to purchase chemicals for stink bombs, and to make Molotov cocktails for firebombing the parking garage under Grant Park. On cross-examination, the principal government witness admitted that he heard Froines say he didn’t know how to make a Molotov cocktail. In their closing arguments, both defense attorneys challenged the credibility of the testimony about the Grant Park garage and emphasized that police never found any physical evidence of firebombs or materials to be used in the manufacture of bombs.
4. Was the Anti-Riot Act of 1968 unconstitutional?
No, the U.S. Court of Appeals for the Seventh Circuit, in a 2–1 decision, decided that the act did not violate the Constitution.
In their appeal, the defendants challenged the constitutionality of the Anti-Riot Act under which they had been convicted. Judges Thomas Fairchild and Walter Cummings found that the act was not so vague or so broad as to be unconstitutional, although they found that the case raised difficult questions. The judges were satisfied that the act required a sufficiently close relationship between speech and action that demonstrated intent to incite a riot. The act’s requirement of “an overt act” in support of inciting a riot was enough to prevent the act from suppressing or “chilling” speech protected by the Constitution.
Judge Wilbur Pell dissented from the majority opinion, and wrote that the Anti-Riot Act was an unconstitutional restriction on free speech. Pell, a recent Nixon appointee, found that the act did not distinguish between speech that advocated violence and speech that was directly related to the incitement of violence. The advocacy of “an idea or expression of belief” could not be limited under the Constitution.
In the fall of 1968, lawyers for the National Mobilization Committee had challenged the constitutionality of the Anti-Riot Act in their suit asking for a court order to halt the grand jury inquiry into the demonstrations. On November 1, 1968, Judge Abraham Marovitz of the district court for the Northern District of Illinois dismissed the suit, and the U.S. Court of Appeals for the Seventh Circuit agreed that the challenge to the statute did not raise sufficient constitutional questions.
5. Were the defendants and their attorneys guilty of criminal contempt?
Judge Hoffman convicted the seven defendants and their two attorneys of 157 counts of criminal contempt. The U.S. Court of Appeals for the Seventh Circuit dismissed some of the charges against the attorneys and reversed all other convictions, which the appellate court sent back to the district court for retrial before a different judge. In the new trial, Judge Edward Gignoux found three of the defendants and one of their attorneys guilty of a combined total of thirteen contempts.
The U.S. court of appeals reversed all of the defendants’ contempt convictions and remanded them to the district court for retrial. The court of appeals dismissed some of the contempt convictions of attorneys Kunstler and Weinglass because their actions involved legitimate efforts to defend their clients; the remaining attorney convictions were remanded for new trials. The court of appeals also ruled that any defendant subject to more than six months’ imprisonment on the contempt charges would be entitled to a trial by jury.
The court of appeals cited recent Supreme Court decisions that restricted a district judge’s authority to issue contempt convictions at the conclusion of a trial if the allegedly contemptuous behavior involved personal insults that would likely create bias in the judge. By the time of the hearings on the Chicago Seven appeals, the government attorneys conceded that the defendants’ convictions should be retried before another judge in the district court, and the government’s decision to drop many of the charges eliminated the need for any jury trials.
Judge Edward Gignoux presided over the retrial of the fifty-two remaining contempt charges. Gignoux quickly dismissed two charges and acquitted the defendants of twenty-four others, including all of those pending against John Froines and Lee Weiner. Following a trial of more than four weeks, Gignoux’s decision on the remaining specifications rested on the criteria that the court of appeals had prescribed for determining guilt: the contemptuous behavior must have occurred in the court or close enough to obstruct the proceedings; the conduct must have violated the expected behavior in a courtroom; the individual must have intended to disrupt the court proceedings; and the conduct must have resulted in an obstruction of the courtroom.
Gignoux found David Dellinger guilty of seven contempt charges, most involving repeated insults directed at the judge while the jury was present. Jerry Rubin and Abbie Hoffman were found guilty of two charges each, including their appearance in the courtroom in judicial robes. William Kunstler was guilty of two contempt charges for extended attacks on the judge that resulted in a significant disruption in the courtroom. Gignoux imposed no jail time for any of the contempt convictions.
6. Did the jury selection process protect the defendants’ right to a fair trial?
No. The U.S. Court of Appeals for the Seventh Circuit found that the district judge was in error for failing to ask potential jurors about their exposure to pretrial publicity. The court of appeals also found that the district judge should have asked potential jurors about their attitudes toward the Vietnam War, the counterculture, and the Chicago police.
The defendants claimed that the “perfunctory” jury selection, completed in one day, did not solicit the information necessary to make reasoned challenges to jurors. Judge Hoffman asked the defense to submit questions for jurors, but he asked jurors only one question from the defense list. The defense submitted many questions about attitudes toward the Vietnam War, student dissent, and hippie culture. The defense also suggested that the judge ask if the potential jurors knew who Janis Joplin and Jimi Hendrix were, if their daughters wore “brassieres all the time,” and if they considered “marihuana habit-forming.” The court of appeals considered some of the defense questions “inappropriate,” but the court also said that public opinion at the time of the trial was so divided over the Vietnam War and the rise of the counterculture that the judge had an obligation to ask jurors about their views. “We do not believe that a prospective juror is so alert to his own prejudices,” that the district court can rely on a general question about the ability to be fair. The defense must be able to ask specific questions about potential prejudices of a juror. The court of appeals decision said that in a case with “widespread publicity about highly dramatic events,” the district judge must ask about the impact of pretrial publicity even if, as in this trial, the defense had not raised the issue during the selection of the jury.
The court of appeals did not accept the defendants’ other argument that the reliance on voter lists for the selection of grand jury members created a biased grand jury. The court found that the reliance on voter lists underrepresented young people, but that the age imbalance was not so pronounced as to produce a biased grand jury.
7. Did Judge Hoffman unfairly restrict the defense’s right to submit evidence and call witnesses?
Yes. The U.S. court of appeals determined that Judge Hoffman had erred in his decision to exclude certain evidence and witnesses for the defense.
The defense attorneys asked to submit various documents as evidence of their claim that the defendants had always intended to engage in peaceful demonstrations at the Democratic National Convention. Judge Hoffman excluded these memos and magazine interviews on the grounds that they were self-serving declarations of the defendants. The court of appeals rejected any blanket rule excluding allegedly self-serving evidence. According to the court of appeals, that standard for evidence was rooted in the long-abandoned rule that defendants in criminal trials could not testify on their own behalf. The court of appeals called special attention to the Lake Villa document drafted by Tom Hayden and Rennie Davis for an organizational meeting in March 1968. It was up to the jury, not the judge, to determine if the Lake Villa policy of nonviolence represented the intentions of the organizers.
The court of appeals also found that Judge Hoffman was wrong to sustain the prosecutors’ objection to all expert witnesses called by the defense. The court of appeals supported a trial judge’s broad discretion in determining the suitability of witnesses, but Hoffman had been mistaken to exclude the witnesses called to testify about crowd control and law enforcement. The court of appeals determined that these witnesses might have helped the jury assess the defense allegation that police had provoked the violence. The court of appeals upheld Judge Hoffman’s decision to exclude expert witnesses who would have testified about racism and social injustice.
The court of appeals found that Judge Hoffman should have allowed former Attorney General Ramsey Clark to testify before the jury. Clark’s testimony about a phone call to Mayor Daley in support of permits for the demonstrators would have provided important perspective on the defense claim that the defendants sincerely tried to obtain legal permits.
8. Did the attitude and demeanor of Judge Hoffman and the government attorneys violate the defendants’ right to a fair trial?
Yes. The U.S. Court of Appeals of the Seventh Circuit found that the demeanor of the judge and the government attorneys was sufficient reason to reverse the convictions.
The court of appeals found that from the opening of the trial, the district judge made clear his “deprecatory and often antagonistic attitude toward the defense.” Judge Hoffman had consistently made sarcastic and gratuitous criticisms of the defense attorneys. The appeals court was especially disturbed that Judge Hoffman had denigrated the defense’s key argument that the Daley administration and the Chicago police deliberately provoked the demonstrators. Judge Hoffman’s most serious offense, according to the court of appeals, was to make these caustic remarks in front of the jury.
On procedural questions, Judge Hoffman consistently ruled against the defense, and he failed to restrain the U.S. attorney’s personal attacks on the defendants. The court of appeals considered U.S. Attorney Thomas Foran’s closing arguments, with their emphasis on dress and appearance and references to “evil men” and “violent anarchists,” beyond all standards of acceptable behavior. The court of appeals acknowledged the disruptive behavior of the defendants, but that behavior did not justify a disregard of “the high standards for the conduct of judges and prosecutors.” “A defendant ought not to be rewarded for success in baiting the judge and the prosecutor.”
The Chicago Seven Conspiracy Trial