Tag Archives: Jerry Rubin

Hangin’ with Judge Hoffman

Posted on April 20, 2021 | 2 comments

POST #9

This is the ninth post in a series recalling what it was like to clerk for Judge Julius J. Hoffman from 1967 to 1969.

The “Chicago 7” Trial (continued)

More about the Sorkin film

            In Post #8, I praised the Sorkin film as an impressive achievement, noting the many awards and positive reviews by critics that the film has garnered.       I now want to add more of my own comments on the film.  I’ll begin with casting.

Casting

I don’t agree with some of the casting in this film.   I can recall a number of personae–how they looked and acted in 1969-70– and my recollections do not jibe with all of the actors chosen to fill those parts.  Even great acting cannot completely make up for this kind of disparity.

One excellent bit of casting is that of Mark Rylance as William Kunstler.  I encountered Kunstler about three years before he appeared in Hoffman’s courtroom, and I retain vivid memories from that time.  Those memories were later enhanced by my in-person observation of the trial twice and by TV coverage of Kunstler once the trial began. 

I first encountered him at a conference on civil rights held at Yale Law School the first weekend of April 1966.  The conference was sponsored by the Yale law students’ Civil Rights Research Council.   A law-school classmate kindly offered to drive three other students and me from Cambridge to New Haven (he immediately became a great friend).  At Yale, we attended sessions offered by a host of leading lights in the field of civil rights.  One of those was Kunstler, who was already an accomplished civil rights lawyer and co-founder of the Center for Constitutional Rights.  He spoke at a session of the conference, and he also gave the keynote speech at the Saturday night banquet held on the Yale campus.  After this encounter, I remembered him because of his passion for civil rights and his engaging delivery.

In my view, Mark Rylance is a good fit for the role of William Kunstler.  In one scene, he rebuts one of the defendants, who characterizes Judge Hoffman as “nuts,” by calling the judge only “a little hostile.”  In his reading of this line, Rylance incorporates what I think was Kunstler’s generally lawyerlike approach to the case. He was, however, painfully caught in the middle between an irascible judge and defendant-clients who were openly defiant in court.  Lashing out at Judge Hoffman at times earned him a number of contempt citations by the judge.  (Only one of these was upheld by the appellate court.)  Overall, Rylance captures Kunstler’s difficult balancing act very well.

I don’t recall how some of the other individuals looked and acted in 1969, so I can’t comment on the actors’ resemblance to the real people.  Prime examples: Defendants Tom Hayden, Rennie Davis, David Dellinger, Bobby Seale, John Froines, and Lee Weiner.   But I do recall Abbie Hoffman (hereinafter Abbie, to avoid confusion with the judge) and Jerry Rubin, both from observing them in-person in Chicago and from media coverage before and after the trial.  The most striking lack of resemblance, to me, is the great difference in their height that the film makes apparent.  Sacha Baron Cohen is (as he himself has noted) about half a foot taller than the real Abbie. This difference is jarring.  As for Jerry Rubin, I remember him as close to Abbie’s height and much better looking than the actor who plays him in the film.  Neater, too. The film’s Rubin comes across as a total slob, which I think is inaccurate.

Abbie’s son Andrew, who lives in the Bay Area and was interviewed by a journalist here last fall, noted that his father was a short man with charismatic energy.  “He was a tiny little …monster,” according to Andrew.  The entire interview with Andrew and others who knew the defendants appeared in Berkleyside, an online newsletter, and was republished in jweekly.com (Oct. 30, 2020.

I encountered Abbie myself on January 1, 1970, in the middle of the trial, which ended on February 18, 1970.  I recount that encounter below in Watching the movie “Z.”

The two federal prosecutors, Thomas Foran and Richard Schultz, both appeared in Hoffman’s courtroom a number of times during my clerkship.  Foran was a short and scrappy Daley acolyte whose name is mispronounced in the film.  He pronounced it as “FOR-an,” with emphasis on the first syllable, not “For-AN,” with emphasis on the second.  His preferred pronunciation was well known in Northern District courtrooms.  His portrayal in the film by J.C. MacKenzie is pretty close to what I remember.

Joseph Gordon-Levitt somewhat resembles prosecutor Richard Schultz and portrays him well.  As I remember Schultz, he was a rather ordinary-looking young man of about 30 who was a low-key prosecutor, pretty much as he’s portrayed in the film.  Whether he ever took a stand against this prosecution, as the film suggests, I have no inside knowledge. But he’s been interviewed recently by media outlets in Chicago, and here’s what I’ve gleaned from published interviews. 

Schultz calls the film “a fantasy” that has little resemblance to the actual events.  He remembers that the goal of some of the defendants was, from the outset, to make a mockery of the court proceedings.  He believes they were also planning violence from the beginning, and fist fights actually occurred between them.  According to Schultz, there was “nothing we could have done to stop the violence in the courtroom.”

 He regrets what transpired with Bobby Seale, but he defends Judge Hoffman’s ruling.  According to Schultz, the judge had no choice because of a ruling a short time before by an Illinois court requiring that an unruly defendant be bound and gagged so he could remain in the courtroom for his trial instead of being removed. 

One interesting side note:  Schultz encountered Abbie and Rubin at the Field Museum in Chicago, as shown in a scene in the film.  He remembers that, when they met, they “begged him to watch the movie ‘Z.’”  This is startling new information for me.  Please see below Watching the movie “Z,” my discussion of that movie and how it related to this trial.

I probably remember AG Ramsey Clark from photographs only and can’t comment on Michael Keaton’s portrayal for that reason.  You may not know that Ramsey Clark was the son of a U.S. Supreme Court Justice, Tom Clark.  During a visit to the Supreme Court during my law school years, I saw Tom Clark read from the bench an opinion he’d written.  In 1967 Tom retired from the Court so his son could assume the role of AG.  He was succeeded by Lyndon Johnson’s superb choice of Thurgood Marshall. 

Ben Shenkman does a good job portraying Leonard Weinglass.  Strangely, I remember Weinglass, who was then 33, as looking older than Shenkman, 52.  Maybe Weinglass looked older than his years.  Or maybe my memory relies on the fact that I was several years’ younger than Weinglass in 1969, and he looked like an older and experienced lawyer to me.

John Doman, the actor portraying AG John Mitchell, bears a slight resemblance to Mitchell, whom I remember from photos and TV coverage.  He successfully captures Mitchell’s arrogance and devotion to Nixon, which led to his own downfall, including a term in federal prison.

Finally, I want to comment on Frank Langella’s portrayal of Judge Hoffman.  One critic has called it the best casting in the entire film.  I totally disagree.  I worked closely with Judge Hoffman for two years, and Langella’s Hoffman is nothing like the real man.  Hoffman was eccentric and generally biased in favor of government prosecutors, but he was not evil. 

Langella may be a good actor, but he read his lines in this film with his own interpretation of the judge in mind.  Maybe that made for better drama.  But it’s not, in my view, close to reality.

In a published interview, Langella called Hoffman “a shit” who had “no redeeming qualities.”  He agreed with what he claims is Sorkin’s view of Hoffman as “either a total pawn of the government, or getting senile, or a combination of both.”  Langella added that there are men like this “who use their position to cover what is venal and dishonest and cruel behavior.”  Again, I totally disagree. 

I had my own issues with Hoffman.  For example, I was angry when he gave my attempt to write an appellate opinion to someone else.  (See Post #6.)  But he did have redeeming qualities.  He was one of the few judges who at that time hired women as their law clerks, and during my tenure he treated me and my co-clerks with respect.  Yes, he could be abrasive toward lawyers who appeared in his courtroom, but he was not venal or dishonest or cruel, like many men in his generation. 

It’s true that he had a bias in favor of government attorneys, both prosecutors and those who represented government agencies, but he was in no way a total pawn of the government.  And I don’t think he was senile or anywhere near it at the time of the trial.  While I worked for him, he ruled in favor of the inmates of the Cook County Jail and against those who ran the county jail.  And when he agreed with the Justice Department’s position in the South Holland school-discrimination case, he was criticized by some for being too much in favor of the government’s position challenging discrimination against minority students.  But his approach led to the right outcome in that case.

So I’m wondering:  Did Langella do any research of his own into Judge Hoffman’s record?  Did he uncover any evidence supporting his description of Hoffman as venal, dishonest, and cruel?  Did he conveniently forget how some of the defendants deliberately provoked this judge, a man who had previously been able to maintain an orderly courtroom?  Can’t these provocations themselves be viewed as “cruel”?

 Although I did not agree overall with the way Hoffman conducted this trial, there were reasons for many of his rulings, especially his reactions to the outrageous behavior of some of the defendants.  Further, he was later reprimanded by the Seventh Circuit for some of these rulings, so he didn’t get away scot-free for what he did.

My own attendance at the trial

            I personally attended the trial twice.  The first time I showed up simply out of curiosity, and when I left, I had no desire to return.  The second time I attended only because a law-school classmate who lived and worked in NYC was visiting Chicago, phoned me, and asked whether I would accompany her to the trial.  I met her at the courthouse, where we got into line and waited for our turn to be seated. 

            I got no special treatment either time.  Waiting in line the first time, my handbag was searched along with everyone else’s, and a comb was confiscated and held for me until I exited the courtroom.  At the time, I carried an aluminum comb that had a “rat tail,” and it was deemed too sharp for me to bring into the courtroom. I was highly amused that my spindly comb was viewed as a weapon!  (I didn’t bring it along when I returned with my friend.)

            Each time I attended the trial, I felt extremely uncomfortable.  By that time, I was a lawyer with the Appellate and Test Case Division of the Chicago Legal Aid Bureau, representing poor people.  Embarrassed by some of Judge Hoffman’s conduct during the trial (and also troubled by the unruly behavior of some of the defendants), I did not return.  I also cut off my relationship with the judge almost completely.  But I briefly got back in touch with him before moving to California in August 1970.  (I discuss that in Post #10, my final post in this series.)

Hoffman’s conduct during the trial

            It’s irrefutable that Judge Hoffman’s conduct during the trial became a source of widespread criticism, and much of it was warranted.  As I mentioned in Post #8, the problem with Hoffman’s role as the presiding judge of the “Chicago 7” trial was, fundamentally, that he treated it like every other criminal case he’d ever handled.  And the defense attorneys were right.  He did have a record of bias in favor of government prosecutors.

            This led to his downfall.  He refused to see that this case was unique and had to be dealt with on its own terms, not like all of the criminal cases in his past. 

Further, he lacked any flexibility and remained committed to the way he’d always conducted proceedings in his courtroom.  He’d been sitting on the federal bench since 1953, and by 1969 he was unfortunately “fixed in his ways.” 

If he’d had some flexibility, that might have helped the trial proceed more smoothly. But at 74, he was accustomed to running an orderly courtroom with lawyers and defendants who followed the rules.  He did not have an orderly courtroom this time, and he was unable to bend those rules.

The Sorkin film highlights many of Hoffman’s missteps.  The situation involving Bobby Seale is the most notable example.  Hoffman was foolish to refuse to sever Seale from this case as soon as Seale complained that his chosen defense lawyer was unavailable.  The back and forth between the two of them became more and more heated, until Seale’s defiance led Hoffman to have him bound and gagged.  According to prosecutor Richard Schultz, Hoffman was following an Illinois court ruling requiring Hoffman to proceed this way, but the film’s reenactment is a spectacle in which Hoffman looks almost unhinged.  Despite his announcement from the bench that “I tried fairly and impartially to get this defendant to sit on his own,” viewers are appalled by this treatment of Seale, which seems especially unjust and discriminatory because Seale is Black.  When Schultz finally asks the judge to sever Seale from the “Chicago 8” and declare a mistrial in his case, Hoffman proceeds to do just that.  But it’s too late.  The damage has been done.

Hoffman’s increasingly fraught relationship with defense attorneys Kunstler and Weinglass further damaged Hoffman’s claim to be a fair judge. I discuss how the appellate court viewed the judge’s conduct in Post #10.

Some additional comments

  1. The film seems to confuse some locations in Chicago, including two of its large parks.  I was away from the city during the convention, but I believe that events depicted in the film took place separately in Lincoln Park on the North Side and in Grant Park downtown (not in only one park).  Grant Park is the large park located across Michigan Avenue from the Hilton Hotel.  Violence took place there on the night of August 27, and a scene in the film shows a hotel window being broken.  There’s also dialogue by the defendants about “going to the convention,” but the convention was held a considerable distance from Grant Park at the International Amphitheatre.  In the film, the violence that occurs takes place in Grant Park and on Michigan Avenue, not at the convention itself.

2. When the defendants and their lawyers meet to discuss the members of the jury, they openly prefer two specific individuals already chosen to be jurors.  I won’t discuss the film’s depiction of how these two jurors were later replaced by alternates.  But I was struck by the comment by the defense that they especially liked a young juror who seemed to be on their side because she noticeably carried a copy of a book by James Baldwin into the courtroom.

This line struck me because by 1967 I had become an avid reader of books by James Baldwin, and I still have my paperback copies of several of them (sporting a cover price of 50 cents).  When I wrote a seminar paper in 1967 for my law school’s Civil Rights Seminar with Professor Al Sacks, I quoted a couple of passages from The Fire Next Time.  These quotes later appeared in a law review article that published my paper, “A Child of a Different Color:  Race as a Factor in Adoption and Custody Proceedings,” 17 Buffalo Law Review 303 (1968), on pages 331 and 346.

3. The U.S. courthouse shown in the film, with people lining the steps chanting “The whole world is watching,” is nothing like the actual courthouse, which was and is a Mies Van der Rohe black box of a building.  The change is clearly made for dramatic effect, but if a viewer goes in search of that courthouse, she will be disappointed.  Hoffman’s courtroom is also different, chosen by Sorkin to feature his presentation of the actors’ positions in the courtroom.

4. Hoffman repeatedly gets some names, especially Weinglass’s, wrong.  This is typical of many people in their 70s.  A problem with names is quite common among older people (including President Joe Biden).  Because it’s not unusual for someone who’s 74 to forget names, even important ones, I think it was unfair to highlight Hoffman’s occasional lapses and suggest that they indicated senility.  In the case of Weinglass, I suspect that Hoffman had friends or associates with similar names, and those names occurred to him in place of Weinglass’s.

5.  I never followed the courtroom testimony of any of the defendants or any of the witnesses, but I’ve always remembered one fairly inconsequential response by Abbie Hoffman that was reported in the media.  At one point, Abbie was reportedly asked whether he was addicted to any drugs.  Answer:  Yes.  Question:  Which one?  Answer:  Caffeine.  As a caffeine addict myself, I find that answer perfectly apt as well as hilarious.

Watching the movie “Z”

In January of 2017, I wrote a post on this blog titled “Watching the Movie ‘Z’:  A Tale of Two Hoffmans.”  In that post, I noted that in January 1970 I watched the movie “Z”—a film I consider a powerful and enduring classic—under somewhat remarkable circumstances. (By the way, this is the film that Abbie Hoffman and Jerry Rubin “begged” prosecutor Richard Schultz to see.)

An edited version of my 2017 post follows.

“Z” is a 1969 film that was written and directed by Costa-Gavras, a Greek-born filmmaker who lives and works in France.  He based it on a 1966 book that used official documents to describe the 1963 death of a Greek politician, Grigoris Lambrakis.  Lambrakis was a leading pacifist and left-wing member of the Greek parliament.  Shortly after speaking at an antiwar meeting in Thessaloniki, he was struck on the head by a club wielded by two far-right extremists.  He later died of his injuries. After his death, graffiti with the letter “Z” began to appear in Greek cities.  Representing the growing protest against the right-wing government, it stood for the first letter of the Greek word, “Zi,” which means “he lives.”

In a filmed interview in 2009, Costa-Gavras discussed the making of “Z.”  You can watch this interview, as I did, on a DVD of “Z.”  Costa-Gavras focused on the theme of political oppression.  His cast included Yves Montand as Lambrakis and Jean-Louis Trintignant as the prosecutor who slowly realizes what happened and is ultimately driven to seek justice against the wrongdoers.

In the film, a key scene takes place in front of the venue where Lambrakis is scheduled to give his speech.  Supporters have gathered to welcome him, but others in the crowd are demonstrators opposed to him and what he stands for.  The local police are seen clubbing a few of the demonstrators.  But it’s clear that the demonstrators are the bad guys–street toughs paid off by those in power to harm Lambrakis.  One of the demonstrators strikes Lambrakis.  After he gives his speech, he’s struck again, causing his death. 

Before he’s struck, Lambrakis asks, “Why do the ideas we stand for incite such violence?”  Costa-Gavras’s answer:  It’s all about power.  Those in power will do anything to stay in power, and here that included the assassination of a political opponent.  (Post-1963, Greek politics remained chaotic.  A 1967 coup by the military led to its control of the Greek government until the regime finally collapsed and democratic government was essentially restored in 1973.)

I first saw “Z” at the Cinema movie theater in Chicago on New Year’s Day 1970.   The Cinema was an art-film theater located on Chicago Avenue near Michigan Avenue, and I saw a great many “art flicks” there before it was demolished and replaced by a high-rise building.  At the time, I was a young lawyer working in an office that brought test cases on behalf of the poor. The “Chicago 7” trial was underway, ending in mid-February 1970

I read about “Z” in Roger Ebert’s review in the Chicago Sun-Times in late December 1969.  Ebert was a young and thoughtful movie critic, and I was a fan of his reviews.  He called “Z” the best film of 1969, and I was eager to see it.  I’d just said goodbye to a man I’d been dating—he was a bit too boring to abide any longer—and I set out on a cold and gray New Year’s Day to see the movie by myself.  (As luck would have it, I met my never-boring husband when I moved to sunny California a few months later.) 

The film more than lived up to my expectations.  But what was especially striking about being in the audience that day was that, in the crowd waiting to enter the theater, I recognized one of the “Chicago 7” defendants, Abbie Hoffman.  I didn’t agree with everything that Abbie and his cohorts stood for, and I didn’t endorse their misconduct during the trial itself.  But I was opposed to the war in Vietnam, sympathetic to other elements of the protest movement, and horrified later that year by events like the killings at Kent State.  

As I watched “Z,” knowing that Abbie was watching it at the very same time, I couldn’t help thinking of the parallels with Chicago.  Fortunately, our government (unlike the powerful right wing in Greece) didn’t promote assassination. (At least we didn’t think so.)  But there were parallels.  The attitude of local officials, including Mayor Richard J. Daley, toward the protesters who came to Chicago in 1968 led to an overreaction by the Chicago police.  Their violent conduct toward the protesters became obvious to everyone watching TV coverage of the Democratic convention.  As we know, Nixon’s Justice Department went on to indict Abbie and the other defendants on charges brought under a dubious law.

There was, however, one sharp contrast between Chicago and Greece:  the prosecutors.  I’d fallen halfway in love with Jean-Louis Trintignant when he starred in “A Man and a Woman,” a 1967 French film.  Now, in “Z,” he portrayed a fair-minded prosecutor who becomes determined to hold the powerful to account.  And he succeeds in indicting not only the two toughs who committed the murder but also the high-ranking military officers who supported them.  (The real-life prosecutor, Christos Sartzetkis, was twice arrested and imprisoned but was later elected by the Greek parliament to be the country’s president from 1985 to 1990.)

By contrast, the prosecutors representing the Nixon administration in Chicago were, in my view, politically ambitious and not exactly fair-minded.  They were determined to convict the seven defendants, including Abbie. They secured as the trial judge a man whose usual bent was to rule in favor of the prosecutors who appeared before him, and he treated this trial like any other.

No one was killed in Chicago.  And although most of the trial defendants were convicted by the jury, their convictions were later reversed.  But the parallels between what transpired in Chicago and the story told in “Z” remain. 

“Z” is still a powerful film (it won numerous awards, including the Oscar and the Golden Globe as the Best Foreign-Language Film of 1970).  And January 1, 1970, endures in my memory as a day that underscored the ugliness of political oppression both in Greece and in my own country.  

Postscript:  Today, the parallels are still with us.  Although the November 2020 election installed a new president in the White House, some who were previously in power, and some who retain a degree of power, remain willing to (in Costa-Gavras’s words) “do anything to stay [or get back] in power.”  The message of “Z” lives.

                                                                        To be continued

(Post #10 will be the final post in this series)

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Hangin’ with Judge Hoffman

Posted on April 8, 2021 | 2 comments

POST #8

This is the eighth in a series of posts that recall what it was like to serve as Judge Julius Hoffman’s law clerk from 1967 to 1969.

The “Chicago 7” Trial (continued)

            How did the Nixon victory lead to the trial of the “Chicago 7”?  The answer is simple.

             With prosecutions by the U.S. Justice Department shifting from the Johnson administration and its attorney general, Ramsey Clark, to those on Nixon’s team who began running the Justice Department, things changed dramatically. 

            AG Clark had been reluctant to go after antiwar activists.  But Nixon was a warped personality, bent on punishing those he viewed as his enemies.  Once in office, with his own attorney general, John Mitchell, securely installed, he could prod federal prosecutors to go after his perceived foes.

            With the assistance of the FBI, long under the direction of another warped individual, J. Edgar Hoover, Nixon was able to track down his enemies, including antiwar protestors who had militated against him.  At the Democratic convention in Chicago in August 1968, antiwar activists’ outspoken opposition to the ultimately successful nomination of Hubert Humphrey (who in their view had not supported their cause with sufficient enthusiasm) disrupted the convention and undermined Humphrey’s ability to defeat Nixon.  As I noted in Post #7, Humphrey’s popular vote total in November was only one percent short of Nixon’s.  But that one percent made all the difference in the now-notoriously-undemocratic Electoral College.

            Many of these protestors had opposed the Vietnam War even before 1968, and they promised to further disrupt things once Nixon was elected.  Hoover’s FBI moved on from targeting people like members of the Communist Party USA to antiwar activists.  A covert program, Cointelpro, used a wide range of “dirty tricks,” including illegal wiretaps and planting false documents. 

I’ll add a recent update on Cointelpro here.

A fascinating revelation appeared in the San Francisco Chronicle in 2021

            On March 7 of this year, The San Francisco Chronicle revealed an FBI break-in that underscores what the agency was doing at this time.  On March 8, 1971, Ralph Daniel, then 26, was one of eight antiwar activists who had long suspected FBI malfeasance and broke into a small FBI office in Pennsylvania to seize records that would prove it.  (March 8 was chosen because, they hoped, FBI agents would be focused on the title fight between prizefighters Ali and Frazier that night.) The break-in was successful, and the records uncovered were leaked to journalists and others, exposing Hoover’s secret FBI program that investigated and spied on citizens accused of engaging in protected speech. 

            This was the massive Cointelpro operation that had amassed files on antiwar activists, students, Black Panthers, and other Black citizens.  Fred Hampton, the leader of the Chicago Black Panthers, was one target of this operation. (He plays a small role in Aaron Sorkin’s film, “The Trial of the Chicago 7,” before his shocking murder is revealed during that trial.  I remember learning of Hampton’s murder and feeling sickened by the conduct of local law enforcement, whose homicidal wrongdoing later became apparent.)

            In 1975, the U.S. Senate’s Church Committee found the FBI program illegal and contrary to the Constitution.      Exposure of Cointelpro tarnished Hoover’s legacy and damaged the reputation of the FBI for years.

            The recent revelation appears in the March 7th edition of The San Francisco Chronicle.  Ralph Daniel, a resident of the Bay Area, revealed his story to a Chronicle reporter fifty years after the break-in took place.

The legal underpinnings of the trial of the “Chicago 7”

            With John Mitchell running Nixon’s Justice Department, federal prosecutors were instructed to focus on one section in a federal statute originally intended to penalize those who created civil unrest following the assassination of Martin Luther King Jr., and specifically to use that statute to bring charges against antiwar activists.  The statute, which had been enacted on April 11, 1968, was mostly a follow-up to the Civil Rights Act of 1964, and it applied to issues like fair housing and the civil rights of Native American tribes. 

            But Title X of this law, which became known as the Anti-Riot Act, did something quite different.  It made it a felony to cross states lines or make phone calls “to incite a riot; to organize, promote or participate in a riot; or to aid and abet any person performing these activities.” This provision, sometimes called the “H. Rap Brown Law,” was passed in response to the conduct of civil rights activist H. Rap Brown.  

How did Judge Hoffman become involved?

            In September 1968, shortly after the Chicago convention, the Chief Judge of the Northern District of Illinois, William J. Campbell, convened a grand jury to investigate possible charges against antiwar protestors who had been active during the convention.  The grand jury, which met 30 times over six months and heard about 300 witnesses, indicted the eight antiwar protestors who came to be dubbed the “Chicago 8” with a violation of the Anti-Riot Act.  AG John Mitchell then asked the U.S Attorney for the Northern District, Thomas Foran, to stay in office and direct the prosecution.

            In Hoffman’s chambers, I was unaware that any of this was happening.  But in the spring of 1969, Hoffman became the judge who would preside over the prosecution.

            Anyone could see from the very beginning that this case was a hot potato–such a hot potato that before it was assigned to Hoffman, it had bounced around the courthouse a couple of times.  Cases were supposed to be randomly assigned to judges according to a “wheel” in the clerk’s office.  But this time, the first two judges who’d been handed the case had reportedly sent it back.  One of these judges was Chief Judge Campbell.  I’m not sure about the other judge, but whoever he was, he had a lot more smarts than Hoffman did.

            [I had my own run-in with Judge Campbell, beginning in February 1970.  But that’s a story for another time.]

            When the case landed in Hoffman’s chambers, he seemed somewhat taken aback, but I think he may have been secretly pleased to be handed this case.  He might have even liked the idea that he’d be handling a high-profile prosecution that would draw a lot of attention.  In any event, his ego wouldn’t let him send the case back to “the wheel,” even on a pretext.

            I kept my distance from the “Chicago 8” case.  As Hoffman’s senior clerk, due to leave that summer, I wasn’t expected to do any work on it.  My co-clerk, at that time the junior clerk, would become the senior clerk after my departure, and he assumed responsibility for the pre-trial motions and other events related to the case.  I was frankly delighted to have little or no responsibility this case.  It was clearly dynamite, and Hoffman was clearly the wrong judge for it.

            Since I was still working in Hoffman’s chambers, I could of course observe what was happening there.  And I could see what was going to happen long before the trial began.  Attorneys for the eight defendants (who later became seven when defendant Bobby Seale’s case was severed, in a sadly shocking episode about a month after the trial began) immediately began filing pre-trial motions that contested absolutely everything. 

            As I recall, one pre-trial motion explicitly asked Hoffman to recuse himself (i.e., withdraw as judge).  The defense lawyers’ claim was that Hoffman’s conduct of previous trials showed that he couldn’t conduct this trial fairly.  If Hoffman had been smart, he would have seized upon this motion as a legitimate way to extract himself from the case.  He must have already suspected that things in his courtroom might not go well.  But again, his pride wouldn’t allow him to admit that there was anything in his history that precluded him from conducting a fair trial.

            Soon the national media began descending on the courtroom to report on Hoffman’s rulings on the pre-trial motions.  One day Hoffman came into the clerks’ room to show us a published article in which a reporter had described the judge as having a “craggy” face.  “What does ‘craggy’ mean?” he asked us. 

            My co-clerk and I were dumbfounded, wondering how to respond to such a bizarre question.  The word “craggy” had always sounded rather rugged to me, while Hoffman looked much more like the cartoon character Mr. Magoo (as many in the media soon began to describe him).  I muttered something about “looking rugged,” while my co-clerk stayed silent.  Hoffman looked dubious about my response and continued to harp on the possible definition of “craggy” for another five or ten minutes until he finally left.

            The problem with Hoffman’s treatment of the “Chicago 7′ case was, fundamentally, that he treated it like every other criminal case he’d ever handled.  And the defense attorneys were right.  He had a record of bias in favor of government prosecutors.

            This problem became his downfall.  He refused to see that this case was unique and had to be dealt with on its own terms, unlike all of the other criminal cases in his past. 

            Further, he lacked any flexibility and remained committed to the way he’d always conducted proceedings in his courtroom.  If he’d had some degree of flexibility, that might have helped the trial proceed more smoothly.  But at 74, after 16 years on the bench, he was accustomed to running an orderly courtroom with lawyers and defendants who followed the rules.

            He would not have an orderly courtroom this time, and he was completely unable to bend those rules.

The film, “The Trial of the Chicago 7,” written and directed by Aaron Sorkin

            This film, which first appeared in September 2020 (I’ll call it “the Sorkin film”), has made the trial the centerpiece of a lengthy and detailed dramatization of the trial itself, along with the events that led up to it. 

The film is an impressive achievement.  I applaud Sorkin for bringing attention to the 50-year-old trial and to many of the people and events who were part of it.

I’ve chosen not to critique the film but simply to add comments based on my own recollections from that era along with what I’ve gleaned from my independent research.

The Sorkin film has notably garnered a 90 percent positive score on Rotten Tomatoes, based on nearly 300 critics’ reviews.  Some of the reviews are glowing, others less so.

I’ll quote from a sampling of reviews.

A.O. Scott wrote in The New York Times:  The film is “talky and clumsy, alternating between self-importance and clowning.”

David Sims wrote in The Atlantic:  This is “a particularly shiny rendering of history, but Sorkin wisely [focuses] on America’s failings, even as he celebrates the people striving to fix them.”

Joe Morgenstern wrote in The Wall Street Journal:  The film “diminishes its aura of authenticity with dubious inventions” and “muddies its impact by taking on more history than it can handle.”

Sorkin’s overall themes are opposition to an unjust war, specifically the Vietnam War; the attempt by activists in 1968 to achieve what they viewed as justice and to strengthen democracy; and how all of this played out politically.  As A.O. Scott noted in his review, “the accident of timing” helped to bolster these themes, with “echoes of 1968” clear to most of us in 2020:  “the appeals to law and order, the rumors of radicals sowing disorder in the streets, the clashes between police and citizens.” 

Sorkin himself told an interviewer that protestors in 2020 got “demonized as being un-American, Marxist, communist—all things they called the Chicago 7.”  He added, “The movie is not intended to be a history lesson, or about 1968—it’s about today.”

(As I point out later in “A Brief Detour,” these themes also played out in Greece during the 1960s.)

In his screenplay, Sorkin sets the scene well.  He begins with news coverage noting LBJ’s escalation of troops and draft calls to beef up the war in Vietnam.  He includes a clip of Martin Luther King Jr. stating that the war was poisoning the soul of America.  He also highlights the assassination of Robert F. Kennedy, who had spoken out against the war, while at the same time noting the increase in casualties among the troops in Vietnam.

In addition, Sorkin makes clear that two of the Chicago 7 defendants, Tom Hayden and Rennie Davis, were leaders of SDS, an organization maintaining that the Vietnam War was contrary to our notions of social justice.  He also shows us Abbie Hoffman (hereinafter Abbie, to avoid confusion with the judge) and Jerry Rubin–who wanted to see either Senator Eugene McCarthy or Senator George McGovern nominated for the presidency– proclaiming that there wasn’t enough difference between Humphrey and Nixon to merit a vote for Humphrey.  (Gosh, this sounds familiar, doesn’t it?  It reminds me of Ralph Nader in 2000, proclaiming that there was no difference between Al Gore and George W. Bush. Thanks, Ralph, for helping to defeat Al Gore and giving us George W. Bush and the war in Iraq.) 

One more thing:  Abbie and Rubin claim in a clip that they’re going to the convention in Chicago “peacefully,” but “we’ll meet violence with violence.”

The film has deservedly won over a large number of admiring movie-watchers, but let’s be honest: Many if not most of them have little or no knowledge of the real story portrayed in it.

Sorkin’s screenplay received the Golden Globe award as the best screenplay of 2020, and it’s been nominated for an Oscar in that category.  The film has also been nominated for an Oscar as the Best Motion Picture of 2020.  One of its actors, Sacha Baron Cohen, is nominated for best supporting actor, and the film is nominated in three other Oscar categories.  In April, the cast received the Screen Actors Guild award for the Outstanding Performance by a Motion Picture Cast.

A few of my own comments

            As I’ve previously pointed out, in the spring of 1969 I was serving as Hoffman’s senior clerk.  I wasn’t responsible for advising him on his rulings during the trial (which began after my departure that summer), and I also didn’t take part in his rulings before the trial.  But it was impossible not to observe what was happening in his chambers while I was still working there.

            Although I therefore could observe what went on in Hoffman’s chambers, I was unaware of many of the events that were taking place outside of his chambers, and I don’t recall whether I personally observed any of the pre-trial courtroom appearances of the defense attorneys.  I also never observed the conduct of any of the defendants before the trial began, unless they appeared on local TV news coverage.

            For these reasons, I found much of the Sorkin film illuminating.  Although I’d very much like to know the sources Sorkin relied on in crafting his screenplay, I haven’t attempted to find out exactly what they were.  For proceedings in the courtroom both before and during the trial, I’m sure that Sorkin relied on the court transcript, which would have recorded everything said in court by the prosecutors, the defendants, defense counsel, the judge, and the many witnesses. 

            [Because of my own experience with court reporters, I know that not every word said in court is in fact recorded properly.  When I said during an oral argument (in a case called Doe v. Scott) that there was “no consensus” among medical experts regarding when life begins, the court reporter recorded my response as “no consequences.”  A very different word with a very different meaning in that context.  But in the trial of the “Chicago 7,” it’s probably safe to assume that the court reporter got most of the words right.]

            As for anything said outside of court, I’ll assume that Sorkin chose to rely on reputable sources.  I know, for example, that defense attorney William Kunstler published a book titled “My Life as a Radical Lawyer,” which probably provided helpful background for some of what happened (at least from Kunstler’s viewpoint).  Countless other books, interviews, and media accounts were no doubt researched and used to support scenes in the film.  Kudos to Sorkin if he and his staff perused these books and other background material for insights into what happened.

            I nevertheless want to ask, on my behalf as well as yours:

            How accurate is the film?

            Although Sorkin may have done a thorough job of research, there’s no question that he took considerable “creative license” when he wrote his screenplay.  He chose to emphasize certain events and to de-emphasize, revise, or omit others.  He also created totally new stuff to dramatize the story.

             For a review of what’s accurate and what’s not, I recommend two online articles.  One that strikes me as a careful job that squares with what I remember is “What’s Fact and What’s Fiction in The Trial of the Chicago 7” by Matthew Dessum, published on Oct. 15, 2020, in Slate.com.   A similar article appeared around the same time in smithsonianmag.com.

                                                To be continued

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Hangin’ with Judge Hoffman

Posted on March 11, 2021 | 3 comments

POST #7

This is the seventh in a series of posts that recall what it was like to clerk for Judge Julius J. Hoffman from 1967 to 1969.

The “Chicago 7” Trial

            In the spring of 1969, shortly before I was to leave my clerkship, a new case arrived in Hoffman’s chambers.  It resulted from a grand jury’s investigation into the events that had transpired in Chicago the previous summer, just before and during the Democratic National Convention in August 1968.  Eight men, later known as the “Chicago 8,” were accused of violating a new federal law, the Anti-Riot Act, by inciting demonstrations and violent encounters with the police in the streets and parks of Chicago.

            Countless books and articles have been written about this trial, sometimes called the Chicago “conspiracy trial,” and I’ve also seen a number of dramatic presentations on the stage, TV, and film. I don’t question the validity of any of these and won’t comment on them here.

            In 2020, a new film, written and directed by Aaron Sorkin, “The Trial of the Chicago 7,” appeared on our screens.  I’ll comment briefly on that film later.

            Because I clerked for Judge Julius J. Hoffman from 1967 to 1969, and because I lived in Chicago during that tumultuous time, I want to state my personal comments on the trial and the events that led up to it. 

            In this post, I’ll state my point of view as someone in a unique situation, working with Judge Hoffman at the very outset of the case, and who–after the trial was over—briefly talked to him about it.

First, some background 

I began my clerkship with Judge Hoffman during the summer of 1967, and I served as his junior clerk until the summer of 1968, when I became his senior clerk for a year.  My two-year clerkship ended during the summer of 1969.  Throughout my clerkship, I was living in my hometown of Chicago.  To help you comprehend the significance of the trial and surrounding events, I want to put them into some sort of context.

My remarks are based on my personal recollections of Chicago during those years.

            First, I was well aware of the rampant corruption in the city.  At the time, I sometimes described the city’s government as a “benevolent dictatorship.” Looking back, I no longer view it as “benevolent,” but it certainly was a dictatorship.

            The city’s government was dominated by one man:  Richard J. Daley, who served as the city’s mayor from 1955 until his death in 1976.  He not only held the executive leadership role, but he also made sure that local ordinances and everything else he wanted were enacted by a complicit city council filled with his acolytes (I recall only one dissenter during those years, an alderman named Leon Despres).  In addition, he decided who would fill local judicial openings.  As a result, the state courts were rank with incompetent judges loyal to Daley and his machine.

            Federal judgeships were somewhat different.  Many if not most of the judges were more or less independent of Daley, at least once they were on the bench.  Even though these judges probably were not totally lacking corrupt motives of their own, most of them (including Democratically-appointed judges who had some connection to Daley in their past) were not necessarily loyal to the Daley regime. 

            Judge Hoffman was a Republican appointed by Dwight Eisenhower and to my knowledge not connected in any way to the Daley machine, although I suspect that many members of the public thought he was. At a luncheon in Chicago in 2001, I was seated next to a prominent news anchor who voiced his assumption that Hoffman was part of the Daley machine.  I immediately corrected him.

Political developments during 1968

            By early 1968, many Democrats had grown restless with the presidency of LBJ.  National politics heated up when a number of men announced that they hoped to replace him.

            The heat became intense on March 31, when LBJ announced in a live TV appearance that he would not run again. (I recall watching him make that stunning announcement.) 

            LBJ reportedly dropped out because Senator Eugene McCarthy of Minnesota had won 42 percent of the vote in the New Hampshire primary, while LBJ won only 49 percent.  McCarthy was the leading voice advocating an end to the Vietnam War, a position that was becoming increasingly popular.  McCarthy’s primary showing led Senator Robert F. Kennedy of New York to enter the race a short time later.   Like McCarthy, he ran on an antiwar platform and advocated a number of other popular positions.

Even before LBJ’s announcement on March 31, I—like so many others– had become disillusioned with him, despite all of his remarkable accomplishments in the domestic realm, because of his increasing and unwavering support of the Vietnam War.  I never considered supporting Republican Richard Nixon, who had run and lost to JFK in 1960 (and later lost his race for governor of California).  I loathed Nixon for a great many reasons.   But for a while, New York’s relatively moderate Republican governor, Nelson Rockefeller, seemed like a possible alternative to LBJ. 

During a visit to New York City to visit friends in early March, I accompanied one of them to a meeting of the NYC bar association, where Rockefeller was the main speaker.  As he finished his speech and left for the exit, I ran after him.  Just outside the building, I approached him and stuck out my hand to shake his.  “Please run for president,” I urged him as we shook hands.  He smiled and said, “Well, aren’t you dear?” before descending the steps to his waiting car. 

I often wondered how things might have turned out if Rockefeller had taken the advice I offered him on those steps before Nixon’s grip on his party became too strong to overcome.  A short time later, LBJ dropped out of the running, and the Democratic race was wide open.  Rockefeller no long held any real appeal for me.  Now, with LBJ out of the picture, I would decide who, among the Democratic candidates who remained in the race, I’d support.

The Democratic National Convention, which would choose the ultimate nominee, was scheduled to be held in Chicago in late August of 1968.

My life in Chicago

I tried to keep up with political developments that spring and summer, but truthfully, I was primarily focused on the things that dominated my everyday life.  First, there were my responsibilities as Hoffman’s law clerk.  Then there was travel, like my trip to NYC in early March.  I also spent time with old friends I’d known for years along with some new ones.  And then there was my attempt to meet potential suitors.  (I was focused on my career but not to the exclusion of marriage and kids.)

In April, Chicago was rocked by the murder of Martin Luther King Jr. in Memphis.  Fires and looting broke out in parts of the city.  I recall visiting the apartment of someone I was dating at the time.  Together we stood at the windows of his high-rise apartment in Sandburg Village viewing the widespread fires we could see below.  I was immensely saddened by King’s death and the terrible destruction that followed.  But my own everyday life didn’t really change.

Was I aware of the efforts by antiwar activists who were gearing up for the DNC in August?  Just barely.  I often watched local TV news and read the daily Chicago Sun-Times, so I was vaguely aware that there was a Yippie movement headed by Abbie Hoffman and Jerry Rubin.  Didn’t they publicize a stunt where they brought a pig to Chicago, announcing that it was a candidate for president?  Because that struck me as pretty ridiculous, it was hard to take them seriously.  

I probably had read something about Tom Hayden and the SDS, but I honestly knew very little about them.  I was also vaguely aware of the Black Panthers, led in Chicago by Fred Hampton, but their agenda didn’t have any noticeable impact on my everyday life.

I did follow the campaigns of the leading Democratic hopefuls.  Eugene McCarthy was my early favorite, but by early June I was considering shifting my allegiance to RFK.  I was therefore horrified, along with the rest of the country, when he was assassinated in the Ambassador Hotel in LA that June.  I had lived very near the Ambassador when I briefly lived in LA at the age of 12, where my family’s first home was a rented apartment on Normandie just off Wilshire Boulevard, a location very close to the Ambassador, and I had strolled near there.  That memory made RFK’s assassination even more real to me than it might otherwise have. 

After he died, I returned to supporting Eugene McCarthy, but I ultimately resolved (with reservations) to support LBJ’s vice president, former Minnesota Senator Hubert Humphrey, as the most electable of the Democratic candidates for president.  Humphrey had a long and admirable record as a liberal Democrat who had supported civil rights legislation and other liberal causes for many years.  But although he earned the support of liberal senators like Fred Harris of Oklahoma and Walter Mondale of Minnesota, he faced vehement opposition because of his adherence to LBJ’s Vietnam policies.  He spoke out against Senator McCarthy and Senator George McGovern’s call for an immediate end to the bombings in Vietnam, an early withdrawal of troops, and setting talks for a coalition government with the Viet Cong. 

Humphrey didn’t enter any of the primary elections held in 13 states, but he won the party nomination at its chaotic convention in Chicago in August.  He lost the November election by less than one percent of the popular vote, but he carried only 13 states. 

The Democratic convention and the events surrounding it led to the trial of the “Chicago 7.”

My vacation that summer

I planned to take my summer vacation during the convention for a simple reason: A close friend who lived in NYC asked me to join her on a road trip that would leave Chicago just as the convention was beginning. I was living paycheck-to-paycheck (my salary was $6,000 for the year), so I jumped at the chance to get an essentially free ride to NYC. 

My friend was coming to Chicago for a wedding, and we would leave on our road trip to NYC on Sunday, August 25, just as the convention was about to begin.  I planned to see friends in NYC and Boston, and then travel from Boston to Cape Cod with another close friend.  Because I was busy making my vacation plans, I was largely insulated from news about the convention.

In Hoffman’s chambers, things at this point seemed routine.  I was largely preoccupied with ruling on the case of The Inmates of Cook County Jail, which I’ve discussed in Post # 4.  As I mentioned in that post, I left my semi-radical opinion on Hoffman’s desk on Friday afternoon the 23rd for him to read while I was away.  (I was later amazed on my return to Chicago to learn that he’d read this opinion from the bench during my vacation.)

I was living that summer at 1360 Lake Shore Drive (where the rent on my studio apartment was a whopping $140 a month).  My mother lived a few miles farther north at Lake Shore Drive and Aldine.  Leaving my mother’s apartment the Saturday night before I was to take off on my vacation, I rode on a bus that drove through Lincoln Park (the largest park on the North Side of the city) en route to my apartment.  I was startled to see masses of people gathering in the park shortly before the convention was to begin.  During the work week, I’d been similarly shocked to see U.S. Army jeeps driving up and down city streets in downtown Chicago when I walked to work in the Federal Building on Dearborn Street. 

Both unprecedented sights made me wonder exactly what might happen in the city during the convention.  But these somewhat shocking events weren’t front and center in my mind.  I remember feeling kind of glad to be leaving town and avoiding what promised to be ominous events happening in Chicago while I was away.

Did I follow the news during my road-trip vacation?  Not really.  So I was pretty much unaware of what was happening at the convention.  But once I arrived in NYC, I stayed with a friend in Greenwich Village and, on the night that became notorious, I watched the convention with her and her husband on their living-room TV.  Needless to say, I was shocked by what I saw.  And terribly embarrassed by the behavior of Chicago’s Mayor Daley, revealed for all to see on TV.  I remember watching Senator Abe Ribicoff speaking at the podium, nominating George McGovern for president, and defying Daley, whose henchman booed the U.S. senator from Connecticut.  Daley was caught on camera mouthing expletives about Ribicoff that TV wouldn’t or couldn’t describe.

At the same time, TV news coverage highlighted what was happening elsewhere in Chicago.  The convention was held at the International Amphitheater, a considerable distance from the center of the city.  But a multitude of antiwar protesters had gathered in the very large downtown park, Grant Park, located adjacent to Michigan Avenue.  These protestors created havoc as they began to move onto Michigan Avenue.  The resulting chaos, and the violent reaction to the protestors by the Chicago police department, seen across the world on TV, was later described as a “police riot.”

In NYC, I put that chaotic vision aside and went on to meet another friend in Boston.  We traveled together to Cape Cod, where we heard that Humphrey had chosen Maine Senator Edmund Muskie as his VP.  Muskie seemed like a good choice, and despite the turmoil in the Democratic Party, I was hopeful that the Humphrey-Muskie ticket could defeat Tricky Dick.

Flying back to Chicago to resume my life there, I discovered that things had largely settled down.  What had happened during the convention didn’t loom large in my mind as I began to pay close attention to the much more compelling 1968 election campaign.  The outcome would steer our country down Humphrey’s path or down a very different one.

In November, I was plunged into gloom by the dispiriting Nixon victory.  I remember watching election-night news coverage in agony as Tricky Dick’s votes added up.  I saw his victory unfold on my tiny black-and-white TV, seated on my sofa next to a date who’d asked me to accompany him earlier that evening to a performance of “Jacques Brel Is Alive and Well and Living in Paris” at The Happy Medium.  Maybe because I associated the guy with that terrible night, I was OK when he gradually faded from my life.  I honestly didn’t care if I never saw him again.

Nixon’s victory changed everything. 

To be continued….

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