I. Opening Statements I Opening Statements TRANSCRIPT PAGES 1–81
SEPTEMBER 26, 1969
Officer of the Court:
THEREUPON a panel of twelve veniremen and four alternates were called to the jury box and duly sworn for examination upon their voir dire, and examined until twelve jurors and four alternate jurors were accepted by the Counsel for the Plaintiff and Counsel for the Defendants.
AND THEREFORE, the panel of twelve jurors and four alternates was duly sworn to try the issues.
[Prior to the introduction of evidence and testimony of witnesses, the attorneys for the opposing parties are granted the opportunity to explain to the jurors the issues they intend to prove—ed.]
Opening statement on behalf of the Government by Mr. Schultz
Mr. Schultz:… The Government, ladies and gentlemen of the jury, will prove in this case, the case which you will witness as jurors, an overall plan of the eight defendants in this case which was to encourage numerous people to come to the city of Chicago, people who planned legitimate protest during the Democratic National Convention which was held in Chicago in August of 1968, from August 26 through August 29, 1968. They planned to bring these people into Chicago to protest, legitimately protest, as I said, creat[ing] a situation in this city where these people would come to Chicago, would riot… [T]he defendants, in perpetrating this offense, they, the defendants, crossed state lines themselves, at least six of them, with intent to incite this riot.
[Without the presence of the jury]
The Court: This will be but a minute, Mr. Marshal. Who is the last defendant you named?
Mr. Schultz: Mr. Hayden.
The Court: Hayden. Who was the one before?
Mr. Schultz: Davis, and prior to that was Dellinger.
The Court: The one that shook his fist in the direction of the jury?
Mr. Hayden: That is my customary greeting, your Honor.
The Court: It may be your customary greeting but we do not allow shaking of fists in this courtroom. I made that clear.
Mr. Hayden: It implied no disrespect for the jury; it is my customary greeting.
The Court: Regardless of what it implies, sir, there will be no fist shaking and I caution you not to repeat it.
[Mr. Schultz continuing with his opening statement—ed.]
Mr. Schultz:… The Defendants Dellinger, Davis and Hayden joined with five other defendants who are charged in this case in their venture to succeed in their plans to create the riots in Chicago during the time the Democratic National Convention was convened here.
Two of these defendants, the Defendant Abbie Hoffman who sits—who is just standing for you, ladies and gentlemen—
The Court: The jury is directed to disregard the kiss thrown by the Defendant Hoffman and the defendant is directed not to do that sort of thing again.
Mr. Schultz:… Ladies and gentlemen of the jury, the Government will prove that each of these eight men assumed specific roles in it and they united and that the eight conspired together to encourage people to riot during the Convention. We will prove that the plans to incite the riot were basically in three steps. The first step was to use the unpopularity of the war in Vietnam as a method to urge people to come to Chicago during that Convention for purposes of protest. The first was to bring the people here.
The second step was to incite these people who came to Chicago, to incite these people against the Police Department, the city officials, the National Guard and the military, and against the Convention itself, so that these people would physically resist and defy the orders of the police and the military.
So the second step, we will prove, was to incite, and the third step was to create a situation where the demonstrators who had come to Chicago and who were conditioned to physically resist the police would meet and would confront the police in the streets of Chicago so that at this confrontation a riot would occur.…
First they demanded, when these people arrived in Chicago, to sleep in Lincoln Park. At one point they were talking in terms of up to or exceeding 500,000 people who were coming to Chicago to sleep in Lincoln Park and they demanded free portable sanitation facilities, they demanded free kitchens and free medical facilities.
The second demand, non-negotiable demand which was made by those defendants I just mentioned, was for a march to the International Amphitheatre where the Democratic National Convention was taking place. They said they were going to have a march of up to or exceeding 200,000 people. Although they were told that the United States Secret Service which was charged with the protection of the President of the United States, the Vice President of the United States and the candidates for nomination—although they were told that the Secret Service said that a permit could not be authorized because of the danger to the security of these individuals, the President and the Vice President and the candidates, the defendants demanded a permit for a march.…
So, ladies and gentlemen, of the jury, the Government will prove with regard to the permits that I have just mentioned that the defendants incited the crowd to demand sleeping in Lincoln Park and to demand that [they] march to the Amphitheatre so that when the police ordered the crowd out of Lincoln Park at curfew and when the police stopped the march, the crowd, having been incited, would fight the police and there would be a riot.
… The Government will not prove that all eight defendants met together at one time, but the Government will prove that on some occasions two or three of the defendants would meet together; on other occasions four would meet; on some occasions five of them would meet together to discuss these actions, and on several occasions six of the defendants met together to discuss their plans.…
In sum, then, ladies and gentlemen, the Government will prove that the eight defendants charged here conspired together to use interstate commerce and the facilities of interstate commerce to incite and to further a riot in Chicago; that they conspired to use incendiary devices to further that riot, and they conspired to have people interfere with law enforcement officers, policemen, military men, Secret Service men engaged in their duties; and that the defendants committed what are called overt acts in furtherance of the conspiracy—that is, they took steps, they did things to accomplish this plan, this conspiracy.…
The Court: Is it the desire of any lawyer of a defendant to make an opening statement?
Mr. Kunstler: It is, your Honor.
The Court: All right. You may proceed, sir.
Mr. Kunstler: Your Honor, it is 12:30.
The Court: I know, I am watching the clock. You leave the—What does that man say—you leave the time-watching to me—on the radio or TV—leave the driving to me. Mr. Kunstler, I will watch the clock for you.
Mr. Kunstler: Your Honor, will you permit us to complete the opening statements?
The Court: I will determine the time when we recess, sir. I don’t need your help on that. There are some things I might need your help on; not that.
Opening statement on behalf of certain defendants by Mr. Kunstler
Now the Government has given you its table of contents. I will present to you in general what the defense hopes to show is the true book. We hope to prove before you that the evidence submitted by the defendants will show that this prosecution which you are hearing is the result of two motives on the part of the Government—
Mr. Schultz: Objection as to any motives of the prosecution, if the Court please.
Mr. Kunstler: Your Honor, it is a proper defense to show motive.
The Court: I sustain the objection. You may speak to the guilt or innocence of your clients, not to the motive of the Government.
Mr. Kunstler: Your Honor, I always thought that—
Mr. Schultz: Objection to any colloquies, and arguments, your Honor.
The Court: I sustain the objection, regardless of what you have always thought, Mr. Kunstler.
Mr. Kunstler: The evidence will show as far as the defendants are concerned that they, like many other citizens of the United States, numbering in the many thousands, came to Chicago in the summer of 1968 to protest in the finest American tradition outside and in the vicinity of the Convention, the National Convention of the party in power. They came to protest the continuation of a war in South Vietnam which was then and had been for many years past within the jurisdiction of the party in power which happened to be the Democratic Party at that time.…
There was, as you will recall, and the evidence will so indicate, a turmoil within the Democratic Party itself as to whether it would enact a peace plan, as part of its platform. This, too, would be influenced by demonstrators. The possibility of this plank was what motivated many of the demonstrators to come to Chicago. The possibility of influencing delegates to that National Convention to take an affirmative strong stand against a continuation of this bloody and unjustified war, as they considered it to be along with millions of persons was one of the prime purposes of their coming to Chicago.…
At the same time as they were making plans to stage this demonstration and seeking every legal means in which to do so, the seeking of permits would be significant, permits in the seeking of facilities to put their plans into operation in a meaningful and peaceful way.
At the same time as all of this was going on, the evidence will show that there were forces in this city and in the national Government who were absolutely determined to prevent this type of protest, who had reached a conclusion that such a protest had to be stopped by the—the same phrase used by Mr. Schultz—by all means necessary, including the physical violence perpetrated on demonstrators. These plans were gathering in Washington and they were gathering here in this city, and long before a single demonstrator had set foot in the city of Chicago in the summer of 1968, the determination had been made that these demonstrations would be diffused, they would be dissipated, they would essentially be destroyed as effective demonstrations against primarily the continuation of the war in South Vietnam.…
We will demonstrate that free speech died here in the streets under those clubs and that the bodies of these demonstrators were the sacrifices to its death.…
… [T]he defense will show that the real conspiracy in this case is the conspiracy to which I have alluded, the conspiracy to curtail and prevent the demonstrations against the war in Vietnam and related issues that these defendants and other people, thousands, who came here were determined to present to the delegates of a political party and the party in power meeting in Chicago; that the real conspiracy was against these defendants. But we are going to show that the real conspiracy is not against these defendants as individuals because they are unimportant as individuals; the real attempt was—the real attack was on the rights of everybody, all of us American citizens, all, to protest under the First Amendment to the Constitution, to protest against a war that was brutalizing us all, and to protest in a meaningful fashion, and that the determination was made that that protest would be dissolved in the blood of the protesters; that that protest would die in the streets of Chicago, and that that protest would be dissipated and nullified by police officers under the guise of protecting property or protecting law and order or protecting other people.…
Dissent died here for a moment during that Democratic National Convention. What happens in this case may determine whether it is moribund.
[At this point in the trial the Court summarily held in contempt of court two Defense Lawyers, Michael J. Kennedy and Dennis J. Roberts, who attempted to withdraw from the case. Mr. Sullivan is their counsel]
The Court: I don’t think there is any doubt that those two lawyers are in contempt. I will sign the order. I said substantially these things orally already.
Mr. Sullivan: May I be heard on this, your Honor?
The Court: Yes.
Mr. Sullivan: I object on behalf of Messrs. Kennedy and Roberts to the entry of this order. I would like an opportunity to respond.
The Court: No, I will sign the order, Mr. Sullivan.
The Court: Is there any other defense lawyer who wishes to make an opening statement to the jury?
I take it that your standing there means yes, you do, Mr. Weinglass.
Mr. Weinglass:… I leave the judgment of what is a non-negotiable demand to you, but you are going to hear some interesting evidence in the course of this case on that issue, because the city, the people who were in charge of granting to these young people the right which they have as citizens to congregate, and meet, and we contend even sleep in our public parks which are publicly-owned property held in trust for the public by the public officials, were reasonable demands which the city could have met if the persons responsible for that decision would not have been persons who were so fearful and so misunderstood the young in this country that they could not meet and talk to them in a reasonable, rational way.…
The Court: I have repeatedly cautioned you. I caution you again, Mr. Weinglass. I think you understand me. You persist in arguing and telling the jury what you propose to do in respect to objections.
Mr. Weinglass: Yes, I thought that was the purpose of an opening statement.
The Court: That is not the function of an opening statement. I have cautioned you time and time again. I caution you once more.
Mr. Weinglass: I thought that was the purpose of an opening statement. Thank you, your Honor.
The Court: Don’t thank me. I didn’t do it as a favor to you. I am cautioning you not to persist in it.…
The Court: Mr. Weinglass, I have repeatedly admonished you not to argue to the jury, not to tell the jury anything other than what in your opinion the evidence will reveal.
I think your persistency in disregarding the direction of the Court and the law in the face of repeated admonitions is contumacious conduct, and I so find it on the record.
The Court: Does any other defense lawyer wish to make an opening statement?
Just a minute, sir. Who is your lawyer?
Mr. Seale: Charles R. Garry.
Mr. Foran: Your Honor, may we have the jury excused?
The Court: Ladies and gentlemen, I am sorry, I will have to excuse you again.
[Without the presence of the jury]
The Court: Mr. Kunstler, do you represent Mr. Seale?
Mr. Kunstler: No, your Honor, as far as Mr. Seale has indicated to me, that because of the absence of Charles R. Garry—
The Court: Have you filed his appearance?
Mr. Kunstler: Filed whose appearance?
The Court: The appearance for Mr. Seale.
Mr. Kunstler: I have filed an appearance for Mr. Seale.
The Court: All right. I will permit you to make another opening statement in behalf of Mr. Seale if you like. I will not permit a party to a case to—
Mr. Kunstler: Your Honor, I cannot compromise Mr. Seale’s position—
The Court: I don’t ask you to compromise it, sir, but I will not permit him to address the jury with his very competent lawyer seated there.