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Maisah R. Robinson, Ph.D.

            John Schultz in his book, The Chicago Conspiracy Trial, provides an in depth coverage of a case that affected and influenced young people in the counterculture and antiwar movements. This trial would be a turning point in America’s history, and one in which the lawyers were charged with the duty of exonerating the defendants and validating the politics and values of the sixties. The policy issue in this case was a concerted course of action followed to achieve certain ends, a plan. The government was using the trial to stifle dissenters and the defense lawyers were putting the government on trial in defense of the counterculture.

            The case was United States v. Dellinger et al. and the defendants were Dave Dellinger, Abbie Hoffman, Jerry Rubin, Tom Hayden, Bobby Seale, Rennie Davis, John Froines, and Lee Weiner. The debate was over the charge of conspiracy. Officially, the defendants were charged with conspiracy and with crossing state lines with intent to incite, organize, promote and encourage riots at the 1968 Democratic National Convention, in violation of a year-old statute, know as the Rap Brown Statute.

            This legislation, The Rap Brown Statute, signed into law on April 11, 1968, was passed during a time when the administration was disturbed by the rebellions of black residents in Newark, Los Angeles, Detroit, and other cities. By creating an antiriot statute and naming it after Rap Brown, an outspoken black activist, the government attempted to link in the public perception black militants with antiwar protestors, most of whom were white. Chicago was to become a proving ground for the political-legal defense. When the trial first began, the defense strategy was to demonstrate that the Rap Brown Statute was unconstitutional and violated the First Amendment because it criminalized thought. The defense team espoused the view that conspiracy in the U.S. is too loosely defined. In order to be guilty of conspiracy, it must be proved only that a person has knowledge of the ends of the conspiracy, even though he/she may not know everyone involved on even what they did. An individual must only know that there is some sort of group that is going to get together for an illegal reason, and there must be two overt acts that in some way further the objectives of the conspiracy. One of the issues involving conspiracy law is that is often deemed fundamentally wrong because a prosecutor only has to prove that the conspiracy had illegal objectives and that an individual became part of it, even though he may not have known any of the other alleged conspirators or even what it was all about. It attempts to punish thoughts rather actions. In the case, proving the main charge unconstitutional was less important to the defendants than adhering to their political goals. Their intent was to demonstrate, by their actions and words, that the government of the U.S. acted illegally to repress opposition to its policies.

            The real reason for the arrest of the “Chicago Eight,” as the defendants were called, was that they represented all aspects of the counterculture of the sixties—rejection of the Establishment, pacifism, militancy, opposition to the war in Vietnam, and rejection of capitalism and racism. The defendants showcased and represented these overlapping issues in the courtroom also. During Convention week, seven of the eight defendants had arrived in Chicago to protest the war in Vietnam and the selection of President Lyndon Johnson’s successor. Abbie Hoffman and Jerry Rubin came to Chicago to create a Festival of Life and a Theater of Disruption. Tom Hayden and Rennie Davis arrived to participate in a protest against the war. Davie Dellinger, working with Tom and Rennie, had opened a National Mobilization to End the War in Vietnam office in Chicago and had planned an unstructured counter convention. Black Panther party chairman, Bobby Seale was in Chicago to replace Eldridge Cleaver, another member of the party, as a speaker, Student Lee Weiner and teacher John Froines planned to march and protest. The government’s strategy in joining the leaders of the nonviolent antiwar and civil rights movements with militant blacks was to create in the public mind the idea that the antiwar movement was an integral part of the Black Power movement.

            The federal prosecutors represented Establishment ideology, the voice of the conservative middle class. They prosecuted the Chicago Eight for the politics during the six months of the trial. The chief prosecutor was U.S. Attorney Thomas Foran and the other was Assistant U.S. Attorney Richard Schultz. They presented the defendants as evil men with an evil scheme. They attempted to convince the jury that the defendants and their attorneys were conspiring to disrupt the Chicago courtroom in the same way that the defendants had conspired to disrupt the Convention. Judge Julius Hoffman was given the case because it was believed that he would be able to control the eight defendants. He viewed the defendants and attorneys as the enemy and believed he represented the lawful authority of the United States. His duty was to put all of the defendants and attorneys in jail. He made no distinction between the lawyers and defendants, criticizing their politics, lifestyles, and beliefs, and disrespecting and insulting the defendants’ witnesses

            The Defense team consisted of Attorney William Kunstler, one of the best known and controversial lawyers in America and Attorney Len Weinglass, who had represented many movement causes and clients. One of the major legal points in the defense’s case was that the defendants had spent months trying to secure permits from the City of Chicago but had not been successful. This attempt to secure permits showed that none of them had come to Chicago planning to incite a riot. They had all wanted peaceful demonstration. The defense lawyers tried to prove that the Chicago police had caused whatever violence that occurred, not the protestors.

            One of the due process issues that Schultz points out was the duty of the jury to protect citizens from official oppression. The jury, which consisted of two white men, two black women and eight white women had sympathy for the defendants’ plight. During the trial they began to demonstrate that they understood that the defendants were being persecuted as well as prosecuted. The jury was subjected to deceptive practices and prevented from seeing and hearing the entire defense. They also witnessed the defendants’ courage and intelligence, the prosecutors’ hostility, and the judge’s calculated overreaction. “When the jury was at last allowed into the courtroom, Mrs. Jean Fritz began weeping and other jurors squirmed hard in their seats at the sight. The brown woman who wore a red wig - she would vote for conviction on all counts during the jury’s deliberation - refused to look at Seale. The other black woman, Mary Butler, who would vote for acquittal, was visibly upset and stole glances at Seale, wincing each time she saw him. Seale noticed the tears going down Mrs. Fritz’s cheeks.” (p. 63) Ironically, the defendants began to sympathize with the jurors, some of them held signs in front of the courthouse that said “Free the Jury” or “The Jury’s in Jail.” The jury in this case, rose above the government’s manipulations and demonstrated their humanity. The outcome of this aspect of the case would be that juries were seen as performing in a just manner. Their actions should be an example for future jurors to follow in order to ensure that defendants are given fair hearing. This will make a difference for all involved in the judicial system.

            The prosecution’s case was a complex, well-orchestrated plan to convict and imprison the defendants as a way to end political dissension by suppressing the sixties generation. Underlying the government’s case was the purpose for the prosecution, to prevent the defendants from participating in their political work. If the system could not destroy the defendants by getting convictions, then it would keep them out of circulation for a long time. This was a successful strategy that the government used repeatedly against political leaders and activists. As a result of this case, activists resolved to continue to fight for their causes and not succumb to the judicial policies that used the courts to subvert them.

           The trial would become a political event that would make everyone aware of the government’s repression and oppression of minorities, people who opposed the war in Vietnam, and members of the counterculture, which represented moral, economic, political and legal issues. All of these issues were represented by members of the counterculture. The defendants revealed their personalities and lifestyles, during the trial, to demonstrate exactly what the counterculture was all about. In a radical break with courtroom procedure and protocol, the defendants refused to follow the courtroom etiquette. Until this trial, courtroom demeanor was rarely disregarded by political defendants or their attorneys. This case was the first one in which the defendants spoke back to a judge, and talked to a jury. “‘I didn’t think I would ever live to sit on a bench or be in a courtroom,’ Judge Hoffman said, ‘where George Washington was assailed by a defendant in a criminal case and a judge was criticized for having his portrait on a wall. Mr. Seale, you do know what is going to happen to you?’ Seale continued to argue that he wanted and needed to represent himself. The judge excused the jury, and said to the marshals, ‘Take that defendant into the room in there and deal with him as he should be dealt with in this circumstance.’ ”(p. 62)

             An example of the overlapping of moral, legal issues was the treatment of African American Bobby Seale, Defendant Bobby Seale was denied the right to counsel of his choice and the right to defend himself. When the Judge ruled against his right to do so, it was viewed as being representative of how black people were treated by the American judicial system. “Seale pointed to the portraits of the ‘slave-owning’ founding fathers on the wall behind Judge Hoffman, among whom ironically were those who helped to write the Constitution that he revered and whose protection he was demanding. ‘What can happen to me more than what George Washington and Benjamin Franklin did to their slaves?’ ” (p. 62) It was at this moment that the trial ceased to be a trial and became a classic symbol of government oppression.

As a result of all the defendants being acquitted of the most serious charge, conspiracy to incite a riot, the government had lost badly. It had failed in its goal because of the moral strength of the defendants and the enormous support for them among a large segment of the population. The jury saw them fighting for their political and moral beliefs and civil rights and witnessed what it was like to be oppressed by the government. “The ancient struggle for dominance, justice by strength, might is right, waits in every gesture, every word every action, every disposition of the standing and sitting person in a courtroom. The rules of the court have much of their origin in the need to forestall anybody’s impulse to make might right….The Chicago Conspiracy defendants would be the first to argue that it was the United States government, in the official persons of the judge and federal marshals, who violated the historically hard-won rule of the avoidance of physical conflict in the courtroom.” (p. 116)

            The defense lawyers represented their clients well. The defendants wanted to decide for themselves what happened in the trial. They wanted their lawyers’ legal strategies to reflect their political philosophies. Therefore, the defense lawyers used a new technique, rather than defending their clients, they put the Government on trial.

They performed as fighters rather than lawyers. Adequate representation means that lawyers are committed to their clients. They do not bow down to oppression. As defense lawyer Kunstler did in the Chicago case, they do not give in to oppression, they make fun of it. Whenever there is oppression and unfairness on the part of the government, when the prosecutor or judge behaves unfairly, the lawyer should speak out, and fight fire with fire.

            The violence that erupted during the Democratic convention and the subsequent trial represented a far-reaching cultural and philosophical conflict over many of American society’s basic values: attitudes about the police and the military; about drugs, sex, clothes, hair, marriage, race, religion, respect for authority; about how America should work; and about whether it was a good or evil nation. During the trial, in the midst of the struggles, many Americans recognized that the battle was not so much between two distinct factions as between contending ideas and impulses within many of them. Much that was cherished on both sides would be reshaped or rejected by the country, while much that was criticized by each side would ultimately be embraced. The anti-police, anti-military attitudes of many protesters, for instance, would be instantly and continually rejected by an overwhelming majority of Americans, as would the collectivist, anti-capitalist and anti-middle-class ideology espoused by radicals. At the same time, the protesters’ opposition to wars and their distrust of government, as well as their attitudes toward drugs, sex and untraditional ways of living, would work themselves deeply into the mainstream of American life.

            Today many of the issues that lay at the heart of the debates of 1968 are embodied in the current tensions and attempts to reconcile them in ways that fit present-day realities. Moreover, there are echoes of 1968 in many of the battle lines drawn by Republicans with their emphasis on respect for authority and demands for a return to the traditional values of their own generation. It will not be difficult to enforce the policy issues discussed in Schultz’s book. The case revealed the misuse of power by federal judges. Defense lawyers are now aware that in some cases, the judge and prosecutors are their enemies and often that the trial is a fake and that there is an agenda that prevails, which is to suppress opposition to the government. Lawyers and defendants now combine their efforts to counter attempts by the government to convince the public that movement people are destructive criminals. The acquittal of the Chicago Eight shows that, although not entirely without difficulty, it is possible that the legal system can be a force for social change. The judicial system in the U.S. is often unjust and will punish those whom it hates or fears. However, as a result of the Chicago trial, working within the legal system, citizens have an opportunity to achieve essential justice. The main implication of the outcome of the trial is that opposition to the Establishment, which is determined to ensure, by fair or unfair means, that there is not significant restructuring of the political-social-economic order, does not stand a chance unless it fights as hard as the system.


             Schultz, J. (1993). The Chicago conspiracy trial. New York: DeCapo Press.

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Comment by Bilal Mahmud المكافح المخلص on November 24, 2019 at 4:55am

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