Excerpted From: Catherine Hancock, Race and Disorder: The Chicago Eight Trial Judge and Prosecutors Meet the Constitution and Bobby Seale, 96 Tulane Law Review 819 (May, 2022) (478 Footnotes) (Full Document)


CatherineHancockAfter Judge Julius Hoffman imposed sentences on the defendants in the “Chicago Conspiracy” trial on February 20, 1970, one scholar declared that “[t]he trial itself is already well on its way to becoming a legend in American law and politics.” More than fifty years later, the legendary status of the “Chicago Eight” prosecution remains intact and complicated. The indictment in United States v. Dellinger charged the defendants under the 1968 Anti-Riot Act with “substantive” speech crimes and with conspiracy to cross state lines with the intent to incite a riot at the Democratic National Convention in Chicago. Six of the eight defendants were nationally known political activists and the group collectively represented the “spectrum of dissent” in the 1960s. Two of the retained defense attorneys, Charles Garry and William Kunstler, had national reputations for defending clients who were active in the civil rights movement, the peace movement, and the Black Panther Party. The jury acquitted the defendants of the conspiracy charge, but convicted five of them of substantive offenses, for which Judge Hoffman imposed five-year sentences. He also summarily convicted the defendants and their attorneys of 175 contempt charges, for which the sentences ranged “from two-and-a-half months to over four years.” The trial attracted intense nationwide publicity and the episodes of courtroom disorder provoked widespread criticism. A majority of the public supported the convictions.

Yet the image of the trial took on a different look on appeal when the United States Court of Appeals for the Seventh Circuit reversed and remanded the substantive convictions because the court was “unable to approve the trial ... as fulfilling the standards of our system of justice.” The media reports of courtroom disruptions by the defendants receded in significance after the Seventh Circuit condemned the constitutional violations by the judge and prosecutors, as well as the judge's erroneous decisions regarding the exclusion of evidence. A few months after that ruling, the new U.S. Attorney announced that the defendants would not face new trials on the substantive counts. The Seventh Circuit also reversed all the contempt convictions and remanded them for trial before Judge Edward T. Gignoux, who issued only thirteen judgments of conviction and imposed no punishment.

The most unforgettable and “terrifying image” of the trial was that of defendant Bobby Seale at the defense table, chained to a chair and gagged by order of Judge Hoffman after five weeks of trial. One week later, Seale's “trial within a trial” ended in a mistrial and his severance from the case, while the proceedings continued against his co-defendants. He was the only Black defendant, and unlike his seven white co-defendants, he appeared in court without counsel. Seale's mistrial was the culmination of a series of events that began when the two white prosecutors, Thomas Foran and Richard Schultz, objected to the routine defense request by Seale's retained counsel, Charles Garry, for a six-week continuance of the trial due to Garry's necessary gall bladder surgery that would require six weeks of recuperation after his hospitalization. Judge Hoffman denied the continuance and rejected Seale's repeated requests to either reconsider that decision or to allow Seale to represent himself until Garry could return to court. Instead, the judge told Seale that he must accept Kunstler as his counsel. Kunstler had never discussed Seale's defense with him and Seale refused to accept his representation. Instead, Seale repeatedly invoked his right to consult Garry as his retained counsel. Seale also attempted to exercise his right to self-representation by participating in the trial.

Seale's repeated requests and his participation drew contempt citations for disobeying Hoffman's orders to remain silent, and ultimately, Hoffman ordered the marshals to chain and gag Seale. In order to preserve the decorum of the courtroom, Judge Hoffman exposed the jurors to a scene resembling a seated lynching of a Black man by order of a white judge. Hoffman also issued fifty-four contempt charges against Seale and his co-defendants for conduct including their objections to Seale's physical suffering during the period that Seale was chained and gagged. The judge's rulings “sparked frenzy in the courtroom and in the media” and highlighted the power of the connection between racial injustice, violence, and disorder.

Even so, the Seventh Circuit's opinions were virtually silent regarding race. Nor did the court address the legality of Seale's chaining and gagging, since Seale's mistrial ended the trial proceedings from which an appeal might have been taken. The court did find that Judge Hoffman committed one error that required the reversal and remand of Seale's contempt convictions. Since Seale was a “defendant who unexpectedly [found] himself without chosen trial counsel,” and since Judge Hoffman was “on notice ... that Seale was dissatisfied with any counsel except Garry,” Hoffman had a Sixth Amendment duty to inquire “into the subject” of Seale's “dissatisfaction” with Kunstler. But the Seventh Circuit noted that even if the district court found on remand that Seale was wrongfully denied his right to Garry's representation or his right to represent himself, such errors “would not justify [Seale's] contumacious conduct” in objecting to Judge Hoffman's denial of his rights.

In the years since the Chicago Eight trial and appeal, the scholarly field of critical race theory has emerged as a source of new insights about the manifestations of white supremacy in America, and more specifically, in American courtrooms. This Article offers reflections on the ways in which the traditional stories of the Chicago Eight prosecution may be viewed through the lens of that scholarship. Given the centrality of the exercise of judicial and prosecutorial discretion in the Chicago Eight pretrial, trial, and appellate phases, it is useful to ask whether that discretion illustrates the findings of social scientists “that race nearly always influences the outcomes of discretionary [decision making] processes, including those in which the [decision maker] relies on criteria thought to be race-neutral.”

When undertaking such an inquiry, it is helpful to consider the influence of the phenomenon known as “transparency” in the critical race theory literature. An understanding of this phenomenon begins with the recognition that most white people live in mainly white worlds when it comes to their workplaces, their homes, their schools, and the other environments they experience. Thus, they “rely on primarily white referents” when they form their “norms and expectations that become criteria of decision for white [decision makers].” But when “whiteness” is understood to be the racial norm, white people lose sight of their racial distinctiveness. They see themselves as raceless and view people of color as “racially distinctive.” In other words, when white people lose their consciousness of themselves as “raced,” their race becomes invisible to themselves--it disappears “from white consciousness into transparency.” It might be expected that for white prosecutors, judges, jurors, and defense counsel, the invisible whiteness of the exercise of discretion could be transparent as well. It might be easy for them to forget that “every opinion coloring the development of the judicial system was a white one” originally during slavery times when “[t]he judicial determinations, as well as the legal narrative voice, developed within [the] white space” of the courtroom.

With these insights in mind, it is possible to revisit the legal dramas involved in the Chicago Eight prosecution in order to understand more fully some of the race-based harms that were not discussed in some portrayals of the case by the media, the judiciary, scholars, and members of the legal profession. Parts II, III, and IV of this Article each begin with sections influenced by transparency in their critiques of the trial. Each Part concludes with a section that seeks to present critiques informed by critical race theory. The aim of combining these critiques is to support the attitude of a “deliberate skepticism regarding the race neutrality of facially neutral criteria” illustrated by the legal rules governing the judicial and prosecutorial discretion exhibited in the Chicago Eight case.

Subpart II.A of this Article discusses the contending opinions of observers as to who deserved the blame for the courtroom disorder that produced so many contempt charges and so much bad publicity for the legal profession. Even though the Seventh Circuit ultimately reversed the substantive convictions of five defendants on numerous grounds, the media reports of the trial provided the impressions from which public opinion was formed. Those reports tended to emphasize the conflicts between the defense and prosecution rather than the judge's errors. Subpart II.B explains how several bar associations made recommendations for reforms inspired by the disorder at the Chicago Eight trial, including the proposals of the Association of the Bar of the City of New York (CNY Bar Report), whose influential and comprehensive study included survey responses from over 1,600 judges regarding their experience with courtroom disruption. Those responses revealed how far Judge Hoffman departed from courtroom norms and best trial practices of his contemporaries on the bench who made affirmative efforts to deter disorder during their trials. Subpart II.C focuses on Judge Hoffman's exercise of discretion in denying the continuance for Charles Garry. Although the rule that gave Hoffman this authority might be “racially neutral” in theory, the damaging impact of his decision on the sole Black defendant--and the national leader of the Black Panther Party--also awarded a significant partisan advantage to the white prosecutors who opposed the continuance. Hoffman's hostile treatment of the defense illustrated the unenforceability of the “race-neutral” presumption that he would exercise his discretion impartially. The idealistic advice of the survey judges was similarly unenforceable, as illustrated by Hoffman's disregard of virtually all their strategies for deterring disorder.

Part III turns to the constitutional violations committed by Judge Hoffman and the prosecutors. Subpart III.A. examines the Seventh Circuit's determination that Hoffman violated the defendants' right to an impartial jury and a fair trial in rejecting the defense voir dire requests. In spite of the possibility of juror bias concerning the anti-war protests of the defendants, Judge Hoffman refused to question the prospective jurors regarding their attitudes toward the Vietnam War, the values of the 1960s youth culture, and their opinions about the police. He also failed to question the jurors appropriately about their exposure to prejudicial pretrial publicity regarding the defendants. Subpart III.B. focuses on the Seventh Circuit's finding that Hoffman's anti-defense bias violated the defendants' right to present a defense, as well as their right to a fair trial. This bias was expressed not only through his consistently hostile rulings that disadvantaged the defense, but also his numerous disparaging statements about the credibility of defense counsel, which the prosecutors echoed with similar denigrating insults about counsel's competency. Subpart III.C focuses on the impact of the loss of Garry as Seale's courtroom counsel, given Garry's cultural competency and experience in the use of anti-racist trial strategies. Seale followed Garry's advice that he should “stand” on his Sixth Amendment rights, even though that meant standing alone and resisting all of Judge Hoffman's attempts to make Seale accept Kunstler as his counsel. Therefore, Seale played the role of a pro se defendant without Hoffman's approval and used that role relentlessly to call out Judge Hoffman's racism in denying Seale's constitutional rights.

Part IV of the Article focuses on the consequences of Judge Hoffman's decision to make it impossible for Charles Garry to represent Bobby Seale in court. Subpart IV.A examines the dynamics that led to Judge Hoffman's final failure to silence Seale by chaining and gagging him. According to post-trial revelations by Seale's co-defendants and by Charles Garry himself, Seale's resistance to Judge Hoffman's silencing strategies was supported by Garry's out-of-court advice. Yet the effort to provoke a mistrial and free Seale from the prejudice of Hoffman's courtroom came at a high cost, namely the four-year sentence that Judge Hoffman imposed on Seale for contempt charges. Subpart IV.B offers reflections upon the efforts by the white prosecutors to persuade the jurors to connect Seale's race as a Black man--and his politics as a Black Panther Party leader--with the attribute of dangerousness, in order to project that attribute upon Seale's white co-defendants to achieve their convictions. Part V concludes with fleeting glimpses of two jurors and their experiences of the trial.

[. . .]

It is harder to find fleeting glimpses of the experiences of the two Black women on the jury, and these glimpses are reported only by those who saw them through white eyes. One Black woman was among the eight jurors who would have “convicted on all counts.” The other was Mary Butler, a pro-acquittal juror, who felt that Seale “had a reason for” his outbursts and she did not “feel that he should shut up.” Mary Butler and the other three pro-acquittal jurors “found each other almost as soon as the trial began” and ate their meals together. All of them had teenage children and the pro-conviction jurors criticized them during deliberations for being pro-acquittal because of their sympathies for young people. In Jean Fritz's view, the pro-conviction jurors “hated” their group of four. Kay Richards, the white juror who sold her story to the Chicago Sun-Times, was distrusted by the group; it was only during the deliberations that she revealed her views as a pro-conviction juror. When Richards asked Mary Butler “what she wanted to be called--a Negro? a black woman? a what?” Mary Butler answered, “Call me an American.” Like Jean Fritz, Mary Butler was ill during the trial. After the verdict, she was sobbing and weeping, like the other pro-acquittal jurors, who had become her friends.

In one respect, Mary Butler shared common ground with the Black woman juror who would have convicted the defendants on all counts. All the jurors were called upon to testify at the hearing about their “hung jury” messages to Judge Hoffman during their deliberations. Since it was Judge Hoffman who was ordered to take their testimony, appellate counsel for the defendants asked him to “read a simple statement” to inform the jurors “that they were not on trial and that the purpose of the hearing was to send the transcript of the testimony” to the appellate court. Judge Hoffman denied the request. The journalist who had authored the Evergreen Review interview was present at the hearing. Although these details do not appear in the Seventh Circuit's opinion, he noticed that both of the Black women jurors testified that they did not recall the marshal speaking to the jury about the “hung-jury” messages or about anything else. The journalist also reported that he “found out” later that “one of the black women” told someone before the hearing that “she would never testify about the messages because she feared reprisal.” “I'm [B]lack,” she reportedly said, “and I know how things happen.” If the story is true, it is another sign of the power of the white courtroom.

Catherine Hancock, Geoffrey C. Bible & Murray H. Bring Professor of Constitutional Law at Tulane University School of Law.