The execution of 38 Sioux at Mankato, Minnesota on December 26, 1862
Records of TrialsLincoln's Decision
Causes of War
Were the Trials Unfair? The Dakota Conflict Trials by Douglas Linder* (c) 1999
A framed photograph of the scene depicted on this homepage, the execution of thirty-eight Sioux on December 26, 1862, used to fascinate me when, as a boy
in Mankato, Minnesota, I would visit the Blue Earth County
Historical Museum. Apart from its macabre appeal, the picture impressed me
because it captured the most famous event in the history of my hometown**
(easily surpassing in significance the death there of an obscure Vice
President who died while changing trains on his way to the Black Hills).
The hanging, following trials which condemned over three hundred
participants in the 1862 Dakota Conflict, stands as the largest mass
execution in American history. Only the unpopular intervention of
President Lincoln saved 265 other Dakota from the fate met by the less
fortunate thirty-eight. The mass hanging was the concluding scene in the
opening chapter of a story of American-Sioux conflict that would not end
until the Seventh Calvary completed its massacre at Wounded Knee, South
Dakota, on December 29, 1890.The Dakota Conflict Trials
by Douglas LinderA framed photograph of the scene depicted on this homepage, the execution of thirty-eight Sioux on December 26, 1862, used to fascinate me when, as a boy in Mankato, Minnesota, I would visit the Blue Earth County Historical Museum. Apart from its macabre appeal, the picture impressed me because it captured the most famous event in the history of my hometown (easily surpassing in significance the death there of an obscure Vice President who died while changing trains on his way to the Black Hills). The hanging, following trials which condemned over three hundred participants in the 1862 Dakota Conflict, stands as the largest mass execution in American history. Only the unpopular intervention of President Lincoln saved 265 other Dakota and mixed-bloods from the fate met by the less fortunate thirty-eight. The mass hanging was the concluding scene in the opening chapter of a story of American-Sioux conflict that would not end until the Seventh Calvary completed its massacre at Wounded Knee, South Dakota, on December 29, 1890.
In 1862 the Sioux Nation stretched from the Big Woods of Minnesota to the Rocky Mountains. There were seven Sioux tribes, including three western tribes, collectively called the Lakota, and four eastern tribes living in Minnesota and the eastern Dakotas called the Dakota. About 7,000 members of the four Dakota tribes lived on a reservation bordering what was in 1862 the frontier, the Minnesota River in southwestern Minnesota. The Dakota Conflict (or Dakota War or Sioux Uprising) involved primarily the two southernmost Dakota tribes, the Mdewakantons and Wahpekutes. Tribes consisted of bands, each with a leader or chief. The Mdewakantons, for example, were divided into nine bands. A majority of the 4,000 members of the two northern tribes, the Sissetons and the Wahpetons, were opposed to the fighting. A large number of Sissetons and Wahpetons had been converted both to farming and Christianity, and had both moral objections and strong reasons of self-interest for keeping peace with the whites. In addition to pure-blood Indians, there were many so-called mixed-bloods, the products of relationships between Indians and settlers. A majority of mixed-bloods sided with whites or avoided participation in the Conflict altogether.
A decade before the Dakota Conflict, the Minnesota Territory, stretching from the upper Mississippi to the Missouri River, was still mostly Indian country. The conifer forest and lakes of Northern Minnesota belonged to the Ojibway (or Chippewa), while the deciduous forests and prairie of southern Minnesota was shared by the Dakota and a much smaller number of Winnebago. In 1851, however, the Dakota by treaty agreed to give up most of southern Minnesota. The land was ceded to the United States in return for two twenty-mile wide by seventy-mile long reservations along the Minnesota River and annuity payments totaling $1.4 million dollars over a fifty-year period. Seven years later, in exchange for increased annuity payments, the Dakota ceded about half of their reservation land. [LINK TO MAP SHOWING RESERVATION LAND]
The causes of the the Dakota Conflict are many and complex. The treaties of 1851 and 1858 contributed to tensions by undermining the Dakota culture and the power of chieftains, concentrating malcontents, and leading to a corrupt system of Indian agents and traders. Annuity payments reduced the once proud Dakota to the status of dependents. They reduced the power of chiefs because annuity payments were made directly to individuals rather than through tribal structures. They created bitterness because licensed traders sold goods to Indians at 100% to 400% profit and frequently took "claims" for money from individual Dakota paid out of tribal funds. No effective means of legal recourse was known to wronged Dakota, leading to talk among some of the only means of dispute resolution with which they were familiar: robbery and violence. The fact that the Dakota people were squeezed into a small fraction of their former lands made it easy, according to Minnesota historian William Folwell, "for malcontents to assemble frequently to growl and fret together over grievances."
Annuity payments for the Dakota were late in the summer of 1862. An August 4, 1862 confrontation between soldiers and braves at the Upper Agency at Yellow Medicine led to a decision to distribute provisions on credit to avoid violence. At the Lower Agency at Redwood, however, things were handled differently. At an August 15, 1862 meeting attended by Dakota representatives, Indian Agent Thomas Galbraith, and representatives of the traders, the traders resisted pleas to distribute provisions held in agency warehouses to starving Dakota until the annuity payments finally arrived. Trader Andrew Myrick summarized his position in the bluntest possible manner: "So far as I am concerned, if they are hungry, let them eat grass." Unbeknownst to those gathered at the Lower Agency, the long delayed 1862 annuity payments were already on their way to the Minnesota frontier. On August 16, a keg with $71,000 worth of gold coins reached St. Paul. The next day the keg was sent to Fort Ridgely for distribution to the Dakota. It arrived a few hours too late to prevent an unprecedented outbreak of violence.
On Sunday, August 17, four Dakota from a breakaway band of young malcontents were on a hunting trip when they came across some eggs in a hen's nest along the fence line of a settler's homestead. When one of the four took the eggs, another of the group warned him that the eggs belonged to a white man. The first young man became angry, dashed the eggs to the ground, and accused the other of being afraid of white men, even though half-starved. Apparently to disprove the accusation of cowardice, the other Dakota said that to show he was not afraid of white men he would go the house and shoot the owner. He challenged the others to join him. Minutes later three white men, a white woman, and a fifteen-year old white girl lay dead.
Big Eagle, a Dakota Chief, recounted what happened after the young men reached Chief Shakopee's camp late on the night of August 17:
The tale told by the young men created the greatest excitement. Everybody was waked up and heard it. Shakopee took the young men to Little Crow's house (two miles above the agency), and he sat up in bed and listened to their story. He said war was now declared. Blood had been shed, the payment would be stopped, and the whites would take a dreadful vengeance because women had been killed. Wabasha. Wacouta, myself and others still talked for peace, but nobody would listen to us, and soon the cry was "Kill the whites and kill all these cut-hairs who will not join us." A council was held and war was declared. Parties formed and dashed away in the darkness to kill settlers. The women began to run bullets and the men to clean their guns....
At this time my village was up on Crow creek, near Little Crow's. I did not have a very large band -- not more than thirty or forty fighting men. Most of them were not for the war at first, but nearly all got into it at last. A great many members of the other bands were like my men; they took no par in the first movements, but afterward did. The next morning, when the force started down to attack the agency, I went along.... The killing was nearly all done when I got there. Little Crow was on the ground directing operations. I saw all the dead bodies at the agency. Mr. Andrew Myrick, a trader, with an Indian wife, had refused some hungry Indians credit a short time before when they asked him for provisions. He said to them; "Go and eat grass." Now he was lying on the ground dead, with his mouth stuffed full of grass, and the Indians were saying tauntingly: "Myrick is eating grass himself." When I returned to my village that day I found that many of my band had changed their minds about the war, and wanted to go into it. All the other villagers were the same way.[Big Eagle's Account, Through Dakota Eyes]
Events moved quickly. Forty-four Americans were killed and another ten captured in the first full day of fighting in and around the Lower Agency at Redwood. Nearly two hundred additional whites died over the next few days as Dakota massacred farm families and attacked Fort Ridgely and the town of New Ulm. Panicking settlers fled eastward from twenty-three counties, leaving the southwestern Minnesota frontier largely depopulated except for the barricaded fortifications at Fort Ridgely and New Ulm. On August 23, a second Dakota attack on New Ulm leaves most of the town burned to the ground, and 2,000 refugees, mostly women, children, and wounded men, set of in wagons and on foot for Mankato, thirty miles away. On August 26, three days after Governor Alexander Ramsey appointed Colonel Henry Sibley, a former governor, to command American forces that would attempt to suppress the uprising, Sibley advanced from the east with 1,400 soldiers toward Fort Ridgely. The next day, Sibley and his men succeeded in lifting the Dakota siege at Fort Ridgely, and the second phase of the Dakota Conflict-- an organized American military effort to defeat and punish the Sioux-- began.
The Dakota offensive continued to achieve success through early September. At dawn on September 2 at Birch Coulee Creek, Dakota warriors attacked a 170-man party of soldiers sent out to bury the bodies of settlers, killing twenty soldiers and ninety horses. Other Dakota attacks were made at Acton, Hutchinson, and Fort Abercrombie. Little Crow is generally acknowledged to have been the leader of the warring Dakota, but Chiefs Mankato, Big Eagle, Shakopee and others played significant leadership roles.
By mid-September, the initiative had shifted to the American forces. On September 23, in the decisive Battle of Wood Lake, 700 to 1,200 Dakota warriors were forced to withdraw after suffering heavy casualties. Meanwhile, divisions among Dakota on the war increased. To the north, chiefs of the Upper Agency Sisseton and Wahpeton continued to oppose the fighting. Chiefs Red Iron and Standing Buffalo threatened to fire upon any of Little Crow's followers that entered their territory. During the Wood Lake Battle, "friendlies" (Dakota opposed to the war) were able to seize control of white captives and bring them into their own camp. In late September, the friendlies released 269 white prisoners to the control of Colonel Sibley. Penned in to the north and south, facing severe food shortages and declining morale, many Dakota warriors chose to surrender. Together with those taken captive, the ranks of Dakota prisoners soon swelled to 1,250. A decision had to be made soon what to do with them.[LINK TO CARTOON STORY ABOUT WOOD LAKE BATTLE AND SURRENDER]
On September 28, 1862, Colonel Sibley appointed a five-member military commission to "try summarily" Dakota and mixed-bloods for "murder and other outrages" committed against Americans. Whether Sibley had authority to appoint such a commission is a matter of substantial dispute. The commission was convened immediately, meeting in La Bathe's log kitchen near Camp Release. [PHOTO OF LOG COURTHOUSE] Sixteen trials were conducted the first day, convicting and sentencing to death ten prisoners and acquitting another six. Over the six weeks that followed, the military court would try a total of 393 cases, convicting 323 and sentencing 303 to death by hanging. Reverend Stephen Riggs, a man who spoke Dakota and was not unsympathetic to their plight, reportedly served as a virtual grand jury, gathering evidence and witnesses.
The trials were quick affairs, getting quicker as they progressed. The commission heard nearly forty cases on November 3, the last day it met. The commission believed that mere participation in a battle justified a death sentence, so in the many cases, perhaps two-thirds of the total, where the prisoner admitted firing shots it proceeded to a guilty verdict in a matter of a few minutes. Somewhat more deliberation was required for trials in which the charge was the murder or rape of settlers, because admissions were much rarer in these cases. After the defendant gave whatever response he cared to make to the charge, prosecution witnesses were called. Where prosecution witnesses contradicted the testimony of the defendant, the commission almost invariably found the prisoner to be guilty. The best witnesses for the prosecution turned out to be some of the accused. A mixed-blood named Godfrey, or Otakle, who was the first prisoner tried [GODFREY'S CASE], gave evidence in fifty-five cases and was described by Recorder Isaac Heard as "the greatest institution of the commission." With his "melodious voice" and "remarkable memory" he seemed to Heard "specifically designed as an instrument of justice." [HEARD'S ACCOUNT OF TRIALS]
Many questions have been raised about the fairness of the trials. In addition to concerns about the sufficiency of the evidence supporting convictions and the rapidity of trials, commission members have been suspected of harboring prejudice against the defendants. The commission members, though believed men of integrity, were also military men whose troops had recently been under attack by the very men whose cases they were judging. Others critics of the trials have argued that the commission was wrong to treat the defendants as common criminals rather than as the legitimate belligerents of a sovereign power or that the trials should have been conducted in state courts using normal rules of crimainal procedure rather than by military commission. Each of these suggestions is debatable. [WERE THE TRIALS FAIR?]
Colonel Sibley may well have viewed summary trials by a commission as necessary to avoid vigilante justice by angry mobs of Minnesotans. As it was, the 303 condemned prisoners were attacked in New Ulm on November 9 as they being transported to Mankato to await their execution [SKETCH OF ATTACK IN NEW ULM]. Another planned attack of the prison camp by several hundred armed local citizens on December 4 was foiled by soldiers guarding the Dakota prisoners.
The final decision on whether to go ahead with the planned mass execution of the 303 Dakota and mixed-bloods rested with President Lincoln. General John Pope, having been sent to Minnesota after his defeat at Bull Run, campaigned by telegraph for the speedy execution of all the condemned. Virtually all of the editorial writers, politicians, and citizens of Minnesota agreed with Pope. One of the few who did not was Henry Whipple, the Episcopal Bishop of Minnesota. Whipple traveled to Washington to meet with Lincoln and discuss the causes of the Dakota Conflict. By Lincoln's own account, the visit impressed him deeply and he pledged to reform Indian affairs. Lincoln knew well that the lust for Dakota blood could not be ignored; to prevent any executions from going forward might well have condemned all 303 to death at mob hands. Lincoln asked two clerks to go through the commission's trial records and identify those prisoners convicted of raping women or children. They found only two [cases 2 and 4]. Lincoln then asked his clerks to search the records a second time and identify those convicted of participating in the massacres of settlers. This time the clerks came up with the thirty-nine names included in Lincoln's handwritten order of execution written on December 6, 1862. [PHOTO OF LINCOLN'S ORDER]
In Mankato, at ten a. m. on December 26, thirty-eight (one person was reprieved between the date of Lincoln's order and the execution) prisoners wearing white muslin coverings and singing Dakota death songs were led to gallows in a circular scaffold and took the places assigned to them on the platform. Ropes were placed around each of the thirty-eight necks. At the signal of three drumbeats, a single blow from an ax cut the rope that held the platform and the prisoners (except for one whose rope had broke, and who consequently had to be restrung) fell to their deaths. A loud cheer went up from the thousands of spectators gathered to witness the event. The bodies were buried in a mass grave on the edge of town. Soon area doctors, including one named Mayo, arrived to collect cadavers for their medical research. [ACCOUNT OF EXECUTIONS]
In April, 1863, Congress enacted a law providing for the forcible removal from Minnesota of all Sioux. Most Dakota, after suffering through a harsh Minnesota winter at a Fort Snelling encampment [PHOTO OF ENCAMPMENT], are moved to South Dakota. Prisoners previously held at Mankato were transported on the steamboat "Favorite" down the Mississippi to Camp McClellan, near Davenport, Iowa. On March 22, 1866, President Andrew Johnson ordered the release of the 177 surviving prisoners. They were moved to the Santee Reservation near Niobrara, Nebraska.
Little Crow was not among the Dakota tried by the military commission. He, along with 150 or so of his followers, fled to present-day North Dakota and Canada. In June 1863, Little Crow returned to Minnesota on a horse-stealing foray. On July 3, Little Crow was shot by a farmer while picking berries with his son near Hutchinson. The farmer received a $500 reward from the state.
The Sioux Wars went on for many years. A military expedition carried the fighting into the Dakota Territory in 1863 and 1864. As the frontier moved westward, new fighting erupted. Finally, in 1890 at Wounded Knee, the generation of warfare that began at Acton, Minnesota in August of 1862 came to an end.
The Chicago Seven Conspiracy Trial
What did it all mean? Was the Chicago Seven Trial merely, as one commentator suggested, "a monumental non-event"? Was it, as others argue, an important battle for the hearts and minds of the American people? Or is it best seen as a symbol of the conflicts of values that characterized the late sixties? These are some of the questions that surround one of the most unusual courtroom spectacles in American history, the 1969-70 trial of seven radicals accused of conspiring to incite a riot at the 1968 Democratic National Convention in Chicago.The Chicago Seven Conspiracy Trial
by Douglas O. LinderWhat did it all mean? Was the Chicago Seven Trial merely, as one commentator suggested, "a monumental non-event"? Was it, as others argue, an important battle for the hearts and minds of the American people? Or is it best seen as a symbol of the conflicts of values that characterized the late sixties? These are some of the questions that surround one of the most unusual courtroom spectacles in American history, the 1969-70 trial of seven radicals accused of conspiring to incite a riot at the 1968 Democratic National Convention in Chicago.
Culturally and politically, 1968 was one of the most turbulent years America has ever seen. As the Vietnam war became the longest war in U. S. history, American casualties passed the 30,000 mark. When the Viet Cong mounted their Tet offensive, anti-war protests grew larger and louder on college campuses. At Columbia, students seized the office of the President and held three persons hostage to protest the school's ties to the defense Department. Two Jesuit priests, Phil and Daniel Berrigan, burned hundreds of draft records at a Selective Service center in Maryland. Following the April assassination of Martin Luther King in Memphis, riots erupted in 125 cities leaving 46 dead. After Senator Eugene McCarthy challenged incumbent President Lyndon Johnson over his support of the war, Johnson withdrew from the race. Senator Robert Kennedy entered the race after Johnson's withdrawl, only to be shot and killed on the night in June that he won the California primary. "Hair," a controversial new musical about draftees and flower children, introduced frontal nudity to large audiences. Feminists picketed the Miss America pageant, black students demanded Black Studies programs, and Eldridge Cleaver published "Soul on Ice."
The Protests
Also in 1968, two groups met to discuss using the upcoming Democratic National Convention in Chicago to highlight their opposition to the Viet Nam War and establishment values. Although there was some loose coordination between the two groups, they had different leadership, different agendas, and favored different forms of protest and demonstrations. The more politically focused of the two groups was the National Mobilization to End the War in Vietnam (MOBE). The group more focused on promoting an uninhibited lifestyle was the Youth International Party (YIPPIES). In addition to these two groups, organizations such as the Black Panther Party and the Southern Christian Leadership Conference also planned to have representatives in Chicago to press their complaints concerning racism in American policies and politics.
Rennie Davis, the national coordinator for MOBE at the time of the Convention, first announced his intentions to come to the Democratic National Convention at a meeting of a group called "The Resistance" in November, 1967, at Judd Hall at the University of Chicago. Davis told the group that he "wanted the world to know that there are thousands of young people in this country who do not want to see a rigged convention rubber-stamp another four years of Lyndon Johnson's war." Three months later the newly-formed MOBE held a planning meeting in Chicago to debate four alternative strategies for the upcoming Democratic Convention: a mass disruption strategy, a strategy of uniting behind a peace candidate such as Senator Eugene McCarthy, a "stay home" strategy, and a strategy of bringing as many anti-war people as possible to Chicago for demonstrations and teach-ins. The group of about forty, including attendees Davis and Tom Hayden, generally supported the fourth strategy. In March of 1968, MOBE sponsored another meeting, this one at Lake Villa, a YMCA Camp near Chicago, to discuss plans for August. About 200 persons, including Chicago Seven defendants David Dellinger, Rennie Davis, Tom Hayden, Abbie Hoffman, and Jerry Rubin, attended the meeting. A twenty-one page document, authored by Hayden and Davis, was distributed at the meeting. The document recommended non-violence.
Meanwhile, another group was making its own plans for Chicago. The "YIPPIES" were born, and plans for a "Festival of Life" in Chicago first discussed, in December 1967. Plans for the Festival of Life, as they were developed by Yippie founders Abbie Hoffman and Jerry Rubin, called for a "festival of youth, music, and theater." In January, the Yippies released an initial call to come to Chicago, called "A STATEMENT FROM YIP":
"Join us in Chicago in August for an international festival of youth, music, and theater. Rise up and abandon the creeping meatball! Come all you rebels, youth spirits, rock minstrels, truth-seekers, peacock-freaks, poets, barricade-jumpers, dancers, lovers and artists!
"It is summer. It is the last week in August, and the NATIONAL DEATH PARTY meets to bless Lyndon Johnson. Weare there! There are 50,000 of us dancing in the streets, throbbing with amplifiers and harmony. We are making love in theparks. We are reading, singing, laughing, printing newspapers, groping, and making a mock convention, and celebrating thebirth of FREE AMERICA in our own time.
"Everything will be free. Bring blankets, tents, draft-cards, body-paint, Mr. Leary's Cow, food to share, music, eager skin,and happiness. The threats of LBJ, Mayor Daley, and J. Edgar Freako will not stop us. We are coming! We are coming fromall over the world!
"The life of the American spirit is being torn asunder by the forces of violence, decay, and the napalm-cancer fiend. Wedemand the Politics of Ecstasy! We are the delicate spores of the new fierceness that will change America. We will create ourown reality, we are Free America! And we will not accept the false theater of the Death Convention.
"We will be in Chicago. Begin preparations now! Chicago is yours! Do it!"
Hoffman and Rubin continued, over the next several months leading up to the Convention, to propose ever more wild plans for the Festival of Life. Rubin announced plans to nominate a pig, Pigasus the Immortal, for President. Hoffman talked about a demonstration of public fornication, calling it a "fuck-in." A Yippie Program, distributed in August of 1968, urged Festival attendees to bring "sleeping bags, extra food, blankets, bottles of fireflies, cold cream, lots of handkerchiefs and canteens to deal with pig spray, love beads, electric toothbrushes, see-through blouses, manifestos, magazines, and tenacity." The program promised poetry readings, mass meditation, "political arousal speeches," fly casting exhibitions, rock music, and "a dawn ass-washing ceremony." There were also activities mentioned in the program that were somewhat problematic for the alleged conspirators' trial defense:
"Psychedelic long-haired mutant-jissomed peace leftists will consort with known dope fiends, spilling out onto the sidewalks in pornape disarray each afternoon....Two-hundred thirty rebel cocksmen under secret vows are on a 24-hour alert to get the pants of the daughters and wifes and kept women of the convention delegates."
At trial, Hoffman suggested that the proposal of outlandish events in the Yippie program and in speeches by Yippie leaders was simply a way of having "fun." He said that no one was expected to take the events seriously [link to Hoffman testimony].
Chicago officials, led by Mayor Richard Daley, saw the Democratic National Convention as a grand opportunity to promote their city to the world. They resolved not to have anti-war demonstrators spoil their plans. Pre-Convention sparring between the City and protest groups concerned the request of the Yippies to allow demonstrators to sleep in city parks. City Administrator Stahl indicated on August 5, 1968 that the request for permission to sleep in the parks would be denied and that an 11 P.M. curfew would be enforced. On August 23, officials ordered city police to post signs in parks announcing the curfew. As the Convention opening approached, Daley put the city's 12,000 police officers on twelve-hour shifts. In addition, 7.500 Army troops and 6,000 national guardsmen, requested by Daley to aid in keeping order, arrived in Chicago.
In late August, mostly student-age anti-war and counter-culture activists began arriving in Chicago. Several thousand would eventually participate in the Convention week protests (a number far below the 100,000-person estimate that some organizers had predicted). Several days before the convention, demonstration leaders began holding classes in Lincoln Park on karate, snake dancing, and other means of self-defense. Preparations were woefully inadequate for the level of police violence that demonstrators would face. On Friday, August 23, MOBE learned that a federal district judge had denied their request for an injunction that would have forced the city to allow use of the parks after 11 P. M.
The next day radical leaders held a contentious meeting to discuss whether demonstrators should abide by the city's curfew. Among those favoring compliance with the curfew was Jerry Rubin; among those urging violation of the curfew was Abbie Hoffman. The first significant confrontations between demonstrators and protesters occurred that night. Some people were tear-gassed. A more serious confrontation with police was avoided when poet Allen Ginsberg led demonstrators out of Lincoln Park "Om-ing" (chanting "Ommmmmm").
Sunday, August 25 was to be the much heralded "Festival of Life" featuring rock music and Yippie revelry. Only the band MC5 showed up, but even they were reluctant to perform. They feared that police would destroy their sound system. The young people who gathered in the park on Sunday evening handed out flowers, smoked pot, made out, and listened to poetry. About 10:30, a police officer with a bullhorn walked through the park saying, "The park is closing. If you stay in the park, you'll be arrested." Some young people, most of them local "greasers" rather than out-of-town protesters, threw objects at a police car. At 11 P. M., police charged into the people still in the park, teargassing them and hitting them with billy clubs. The clearing of the park continued for hours. Some kids ran around smashing car windows and vandalizing buildings.
Police cracked more heads and fired more tear-gas grenades again the next night. They attacked about 3,000 demonstrators gathered in the southeastern corner of Lincoln Park shortly after the 11 P. M. curfew. Testifying later about that night, Robert Pierson, an undercover officer working as Hoffman's bodyguard, said that the Yippie leader announced, "We're going to hold the park. We're going to fuck up the pigs and the Convention." Shortly after midnight, Tom Hayden became the first of the alleged conspirators to be arrested. An officer potted Hayden letting the air out of the tires of a police car. A half hour later, Rennie Davis (according to a prosecution undercover witness) stood at the barricades in Lincoln Park with a megaphone shouting at people to "fight the pigs."
August 27 was another wild day in Chicago. It began with a sunrise service of chants, prayers, and meditation in Lincoln Park, led by Allen Ginsberg. Bobby Seale arrived in Chicago and addressed a crowd of about 2,000 in Lincoln Park. His speech, advocating a violent response to police, was later made the basis for charging him with a violation of the 1968 Anti-Riot Act. Abbie Hoffman, furious with MOBE for its continued advocacy of non-violence, allegedly met with the Blackstone Rangers to persuade them to come to the park with weapons that night. In the Chicago Coliseum, about 4,000 persons gathered to hear David Dellinger, folk singer Phil Ochs, novelist William Burroughs and a variety of other peace movement celebrities. Shortly after 11 P. M., the nightly routine of clubbing and tear-gassing repeated in the park. Some enraged demonstrators smashed windows and streetlights.
Convention week violence peaked on Wednesday, August 28. The day began with Abbie Hoffman being arrested while having breakfast and charged with public indecency for having written the word "Fuck" on his forehead. (Hoffman said he did so to discourage the press from photographing him.) In the afternoon, Dellinger, Seale, Davis, and Hayden addressed 10,000 to 15,000 demonstrators at the bandshell in Grant Park, opposite the Convention's headquarters hotel, the Conrad Hilton. Tom Hayden allegedly tell the audience: "Make sure that if blood is going to flow, let it flow all over the city. If we're going to be disrupted and violated, let the whole stinking city be disrupted. I'll see you in the streets!" Around 3 P.M., some people in the crowd lowered an American flag from a flagpole and attempt to raise a red flag in its place. When the police move in to retrieve the American flag, Jerry Rubin yelled "Kill the pigs! Kill the cops!" In another incident, Rennie Davis was clubbed into unconsciousness, taken to a hospital, then covered with a sheet and moved from room to room in a successful effort to foil police who planned to arrest Davis during a search of the hospital. That evening, in the Chicago Amphitheatre, Democrats nominated Hubert Humphrey as their candidate for President. Police stopped a nighttime march of about 1,500 people to the Amphitheatre. They attacked demonstrators with tear gas and clubs at numerous street intersections in the area.
The clubbing and the tear-gassing finally let up on Thursday, but protest activities continued. Senator Eugene McCarthy and comedian Dick Gregory were among those who addressed a crowd in Grant Park. Police undercover officer Irwin Bock met in the park with John Froines and Lee Weiner. Froines allegedly said that the demonstrators needed more ammunition to use against police. Weiner reportedly then suggested Molotov cocktails, adding that a good tactic might be to pick a target in the Loop and bomb it. Weiner told Bock and others to get the bottles, sand, rags, and gasoline necessary to make the Molotov cocktails.
The Trial
Until enactment of the 1968 Civil Rights Act, rioting and incitement to riot was a strictly local law enforcement issue. Congress, however, felt compelled to respond to the ever-increasing numbers of anti-war protests around the country. The new law made it a federal crime to cross state lines with the intent to incite a riot. Even after passage of the law, Attorney General Ramsey Clark and the Justice Department were reluctant to enforce the new provisions. Clark viewed what had happened in Chicago as primarily a police riot. The Attorney General expressed more interest in prosecuting police officers for brutality than in prosecuting demonstrators for rioting.
The Justice Department's lack of interest in prosecuting protest leaders outraged Chicago Mayor Richard Daley. Daley convinced a close friend and federal judge, William Campbell, to summon a grand jury to consider possible violations of the anti-riot law. On March 20, 1969, the jury returned indictments against eight demonstrators, balanced exactly by indictments against eight police officers. The eight indicted demonstrators included Abbie Hoffman, Jerry Rubin, David Dellinger, Tom Hayden, Rennie Davis, John Froines, Lee Weiner, and Bobby Seale. By the time the grand jury returned its indictments, the Nixon Administration had begun. The new attorney general, John Mitchell, exhibited none of his predecessor's reluctance about prosecuting demonstrators. Mitchell gave the green light to prosecute.
On September 24, 1969, thirteen months after the riots that shocked America, the trial of the so-called "Chicago Eight" began in the oak-panelled, twenty-third-floor courtroom of Judge Julius Hoffman. The 300 members of the panel of potential jurors were overwhelmingly white, middle-class and middle-aged. They reminded author and trial observer J. Anthony Lukas of "the Rolling Meadows Bowling League lost on their way to the lanes." Defense attorneys William Kunstler and Leonard Weinglass submitted to Judge Hoffman a list of fifty-four proposed questions for potential jurors. They believed that the questions might aid them in their use of juror challenges by revealing cultural biases. Among the questions the defense attorneys wanted to ask jurors were: "Do you know who Janis Joplin and Jimi Hendrix are?", "Would you let your son or daughter marry a Yippie?", and "If your children are female, do they wear brassieres all the time?" Judge Hoffman rejected all but one of the proposed questions, asking the jurors only "Are you, or do you have any close friends or relatives who are employed by any law enforcement agencies?" (Later, the Seventh Circuit Court of Appeals would cite the judge's refusal to allow inquiry into the potential cultural biases of jurors as a ground for reversing all convictions.) Three hours after voir dire began, a jury of two white men and ten women, two black and eight white, was seated. It was clearly not a good jury for the defense. (After the trial, one female juror commented that the defendants "should be convicted for their appearance, their language and their lifestyle." Edward Kratzke, the jury foreman, also was angered by the defendants' courtroom behavior: "These defendants wouldn't even stand up when the judge walked in; when there is no more respect we might as well give up the United States." A third juror expressed the view that the demonstrators "should have been shot down by the police.")
The defense and prosecution tables stood in dramatic contrast. At the defense table, defendants relaxed in blue jeans and sweatshirts, often with their feet up on chairs or the table itself. Hoffman and Rubin favored attire that included headbands, buttons, beads, and colorful shirts. The defendants passed trial hours munching jelly beans, cracking jokes, offering editorial comments, making faces, reading newspapers, and sleeping. The area around the defense table was littered with clothing, candy wrappers, and even (on one day) a package of marijuana. The prosecution table, behind which sat silver-haired District Attorney Thomas Foran and his young assistant Richard Schultz in their business suits, was, on the other hand, a picture of neatness and efficiency. The prosecution table was clear of all but carefully arranged notes, a file of index cards, and a pencil.
There was division in the defense ranks concerning trial strategy. Some of the defendants, such as Tom Hayden, wanted to play the trial straight: to concentrate on winning jurors by diligently pursuing weaknesses in the prosecution's case and by observing a degree of courtroom decorum. Others, such as Jerry Rubin and Abbie Hoffman, saw the trial as an opportunity to appeal to young people around the country. They wanted to turn the trial into entertaining theater that would receive maximum attention in the press. To that end, the Yippies would spice up the days of the trial by, for example, wearing judicial robes, bringing into the courtroom a birthday cake, blowing kisses to the jury, baring their chests, or placing the flag of the National Liberation Front on the defense table.
In his trial account The Barnyard Epithet an Other Obscenities, J. Anthony Lukas divides the Chicago Conspiracy Trial into five "phases." The first period, which Lukas calls "The Jelly Bean Phase," lasted from September 24 to October 13. It was a relatively uneventful stage, in which the defendants took a "gently mocking" stance toward the trial. The second period, the "Gags and Shackles Phase," lasted from October 14 to November 5. This phase by the defendants seeking to emphasize political issues in the trial, perhaps because they were concerned that the trial was being seen by their sympathizers as a mere joke. Also during this phase, Black Panther defendant Bobby Seale continuously, and in increasingly angry tones, insisted upon his right either to represent himself or to have the trial continued until his own counsel of choice, Charles Garry (who was hospitalized for gall bladder surgery), could represent him. Seale hurled frequent and bitter attacks at Judge Hoffman, calling him a "fascist dog," a "pig," and a "racist," among other things. On October 29, the outraged judge ordered Seale bound and gagged. Finally, on November 5, Hoffman severed Seale from the case and sentenced him to four years in prison for contempt. The Chicago Eight suddenly became the Chicago Seven. Phase three, lasting from November 6 to December 10, was called by Lukas "Government's Day in Court." It was a relatively calm period with only nine contempts, as the defendants saw in a surprisingly weak prosecution case the opportunity for at least a hung jury if they could "cool it" and avoid turning the jury against them. Phase four, from December 11 to January 22 was the "Sing Along with Phil and Judy Phase." This was the phase in which the defense presented its witnesses, a virtual "who's who" of the American left from the guru of the drug culture Timothy Leary to radical poet Allen Ginsberg to folk singers Phil Ochs, Arlo Guthrie, "Country Joe" McDonald, Pete Seeger and Judy Collins. The final phase of the trial, from January 23 to February 7, Lukas called the "Barnyard Epithet Phase." It was a two-week period marked by increasingly bitter outbursts by the defendants and their attorneys, and by almost irrational overreactions by Judge Hoffman. Forty-eight contempts came in this shortest of the five trial phases.
The heart of the government's case was presented through the testimony of three undercover agents who had infiltrated radical ranks, Irwin Bock, William Frappolly, and Robert Pierson. Pierson landed a job as Rublin's "bodyguard," while Bock and Frappolly maneuvered their way into leadership positions in "Vets for Peace" and the S. D. S. (Students for a Democratic society). The undercover witnesses described plots to disrupt traffic, takeover hotels, "sabotage" restrooms, and other "hit-and-run guerilla tactics." The government's case was aided substantially by Judge Hoffman who consistently ruled in favor of the prosecution on evidentiary disputes. For example, Hoffman allowed the government to introduce speeches of the defendants made well before their arrival in Chicago when they tended to support the government's case, but ruled that the defense could not introduce (because they were "self-serving") pre-Convention documents that suggested peaceable intentions. Throughout the presentation of the government's case, Thomas Foran played the straight man, while his younger associate, Richard Shultz, expressed outrage at defense behavior and--whenever the opportunity arose--went for the jugular. J. Anthony Lukas marveled that "Shultz could have made the first robin of spring sound like a plot by the Audobon Society."
The defense through its witnesses tried to portray the defendants as committed idealists who reacted spontaneously to escalating police violence. It suggested that what the prosecution saw as dangerous plots, such as an alleged Yippie conspiracy to place LSD in the Chicago water supply, were only play. The defense also attempted, without much success because of Judge Hoffman's rulings excluding such testimony, to make the Viet Nam War an issue in the trial. The defense countered the prosecution's attempt to prove a conspiracy with evidence that the alleged conspirators never met as a group--and would have agreed upon little if they had. Defense witness Norman Mailer probably made the point best when he said, "Left-wingers are incapable of conspiracy because they're all egomaniacs." Abbie Hoffman made the same point more colorfully when he said, "Conspiracy? Hell, we couldn't agree on lunch."
The jury had scarcely begun its deliberations in the Chicago Conspiracy Trial when Judge Hoffman began sentencing each of the defendants and the two defense attorneys, William Kunstler and Leonard Weinglass, to lengthy prison terms on 159 specifications for criminal contempt. The specifications ranged from minor acts of disrespect (such as not standing for the judge) to playful acts (such as baring rib cages or blowing kisses to the jury) to insulting or questioning the integrity of the court ("liar," "hypocrite," and "fascist dog"). William Kunstler, who seemingly became a radicalized brother of his clients over the course of the trial, was sentenced by Hoffman to four years and thirteen days in jail. One specification for Kunstler concerned an incident on February 3 when he said "I am going to turn back to my seat with the realization that everything I have learned throughout my life has come to naught, that there is no meaning in this court, there is no law in this court." The Seventh Circuit Court of Appeals later reversed all contempt convictions, ruling that contempt convictions resulting in more than six months in prison require jury trials.
The jury initially split, with eight jurors voting to convict defendants on both the conspiracy and intent to incite riot charges and four jurors voting to acquit on all charges. Foreman Edward Kratzke handed a hung-jury message to the marshal to take to Judge Hoffman. The judge's response: "Keep deliberating!" Juror Kay Richards finally brokered a compromise between the two jury factions. In the end, jurors acquitted all defendants on the conspiracy charge, while finding the five defendants charged with having an intent to incite a riot while crossing state lines guilty. The jury acquitted Froines and Weiner of the charge of teaching and demonstrating the use of an incendiary device.
On February 20, 1970, Judge Hoffman sentenced the five members of the Chicago Seven found guilty by the jury. Each defendant made a statement before sentence was imposed. David Dellinger told Hoffman that he was "a man who had too much power over too many people for too many years," but that he admired his "spunk." Rennie Davis announced that when he got out of prison he intended to "move next door to [prosecutor] Tom Foran, and bring his sons and daughter into the revolution." Tom Hayden offered the opinion that "we would hardly have been notorious characters if they left us alone on the streets of Chicago," but instead "we became the architects, the masterminds, and the geniuses of a conspiracy to overthrow the government-- we were invented." Abbie Hoffman recommended that the judge try LSD: "I know a good dealer in Florida [where the judge was soon to head for a vacation]; I could fix you up." Jerry Rubin offered the judge a copy of his new book Do It! with an inscription inside: "Julius, you radicalized more young people than we ever could. You're the country's top Yippie." After listening to each defendant give his statement, Judge Hoffman sentenced each defendant to five years' imprisonment plus a $5,000 fine.
The Seventh Circuit Court of Appeals reversed all convictions on November 21, 1972. The appellate court based its decision on the refusal to allow inquiry into the cultural biases of potential jurors during voir dire as well as Judge Hoffman's "deprecatory and often antagonistic attitude toward the defense." The court also noted that it was determined after appellate argument that the F. B. I, with the knowledge and complicity of Judge Hoffman and prosecutors, had bugged the offices of the Chicago defense attorneys. The Court of Appeals panel said that it had "little doubt but that the wrongdoing of F. B. I. agents would have required reversal of the convictions on the substantive charges."
All seven Chicago police officers charged with violating the civil rights of demonstrators were acquitted. Charges against an eighth officer were dismissed. Richard Shultz explained the verdicts by observing, "The people who sit on juries in this city are just not ready to convict a Chicago policeman."
There is no simple "yes" or "no" answer to the question of whether the Chicago defendants intended to incite a riot in Chicago in 1968. Abbie Hoffman said, "I don't know whether I'm innocent or I'm guilty." The reason for the confusion--as Norman Mailer pointed out--was that the alleged conspirators "understood that you didn't have to attack the fortress anymore." All they had to do was "surround it, make faces at the people inside and let them have nervous breakdowns and destroy themselves."
In May, 1868, the Senate came within a single vote of taking the unprecedented step of removing a president from office. Although the impeachment trial of
Andrew Johnson was ostensibly about a violation of the Tenure of Office
Act, it was about much more than that. Also on trial in 1868 were
Johnson's lenient policies towards Reconstruction and his vetoes of the
Freedmen's Bureau Act and the Civil Rights Act. The trial was, above all
else, a political trialTrial Account by Douglas O. Linder
In May, 1868, the Senate came within a single vote of taking the unprecedented step of removing a president from office. Although the impeachment trial of Andrew Johnson was ostensibly about a violation of the Tenure of Office Act, it was about much more than that. Also on trial in 1868 were Johnson's lenient policies towards Reconstruction and his vetoes of the Freedmen's Bureau Act and the Civil Rights Act. The trial was, above all else, a political trial.Andrew Johnson was a lifelong Democrat and slave owner who won a place alongside Abraham Lincoln on the 1864 Republican ticket in order to gain the support of pro-war Democrats. Johnson was fiercely pro-Union and had come to national prominence when, as a Senator from the important border state of Tennessee, he denounced secession as "treason."
On April 11, 1865, Abraham Lincoln gave his last major address. Lincoln congratulated Lee on his surrender, announced that his cabinet was united on a policy of reconstructing the Union, and expressed the hope that the states of the confederacy would extend the vote to literate negroes and those who served as Union soldiers.
When Andrew Johnson became president after the assassination of Abraham Lincoln, some of the Republicans in Congress most opposed to what they saw as the too-lenient policies of Lincoln toward reconstruction saw Johnson's ascension as a hopeful sign. One of the radical Republicans of the Senate, Benjamin Wade, expressed his support: "Johnson, we have faith in you. By the gods, there will be no more trouble in running the government." Less than three years later, Wade would cast a vote to convict Johnson in the impeachment trial that nearly made him the next president of the United States.
There were two contending theories in post-war Washington concerning reconstruction. One theory argued that the states of the United States are indestructible by the acts of their own people and state sovereignty cannot be forfeited to the national government. Under this theory, the only task for the federal government was to suppress the insurrection, replace its leaders, and provide an opportunity for free government to re-emerge. Rehabilitation of the state was a job for the state itself. The other theory of reconstruction argued that the Civil War was a struggle between two governments, and the southern territory was conquered land, without internal borders, much less places with a right to statehood. Under this theory, the federal government might rule this territory as it pleases, admitting places as states under whatever rules it might prescribe. Andrew Johnson was a proponent of the first, more lenient theory, while the radical Republicans who would so nearly remove him from office were advocates of the second theory. The most radical of the radical Republicans, men like Thaddeus Stevens and Charles Sumner, believed also in the full political equality of the freed slaves. They believed that black men must be given equal rights to vote, hold office, own land, and enter into contracts, and until southern states made such promises in their laws they had no right to claim membership in the Union. Republicans also had more practical reasons to worry about Johnson's lenient reconstruction policy: the congressmen elected by white southerners were certain to be overwhelmingly Democrats, reducing if not eliminating the Republican majorities in both houses.
The first serious conflict over the course of reconstruction concerned the plan drafted by the Johnson Administration for North Carolina. The plan called for residents to elect delegates to a state convention that would frame a new state constitution. The cabinet split 4 to 3 in favor of allowing black residents to vote, but Johnson sided with those who would restrict voters to those qualified to vote under state law at the time of North Carolina's secession-- whites only. Secretary of War Edwin Stanton reported that "the opposition of the President to throwing the franchise open to the colored people appeared to be fixed."
In January, 1866, Senator Lyman Trumbull introduced two bills. One would enlarge the powers of the Freedmen's Bureau while the other would extend basic civil rights to negro citizens. Andrew Johnson surprised many who believed he would postpone confrontation with the radical Republicans by vetoing both bills. Congress was unable to override the Freedmen's Bureau veto, but succeeded in overriding the Civil Rights Act veto on a Senate vote of 33 to 15. Except for veto overrides on two minor pieces of legislation, one in the Pierce and one in the Tyler administrations, it was the first successful override in the nation's history and portended serious trouble for the President and his reconstruction policies. By February of 1866, the radicals viewed Johnson as "an outlaw undeserving of quarter."
A summer massacre in New Orleans further fueled the growing animosity between Johnson and the Republican Congress. A mob, including members of the Louisiana police, fired upon whites and blacks gathering for a Republican-backed convention that would frame a new state government. Forty were killed and over one hundred wounded. Only after the killing was over did U. S. troops arrive to place the city under martial law. Republicans angrily denounced Johnson for not anticipating trouble and protecting convention delegates and supporters. Impeachment talk began to swirl around Washington. Complaints against Johnson included his public drunkenness, generous use of the pardon power, and even suggestions that he was a principal in the Lincoln assassination plot.
Johnson, for his part, answered denunciation with denunciation. In a series of combative speeches in cities such as Cleveland and St. Louis, the President lashed out at his congressional critics as "traitors." He accused ultra-radicals Thaddeus Stevens, Wendell Phillips, and Charles Sumner of comparing themselves to "the Savior." Johnson's a intemperate speeches would later become the basis for articles of impeachment.
In the spring of 1867, the new Congress passed over Johnson's veto a second Freedmen's Bureau bill and proposed to the states a Fourteenth Amendment to the U. S. Constitution. (The Fourteenth Amendment is best known today for its requirement that states guarantee equal protection and due process of law, but the most controversial provisions of the time concerned the conditions precedent that imposed on states for readmission to the Union.) Johnson announced his opposition to the Fourteenth Amendment and campaigned for its defeat. The Reconstruction Act of 1867, also passed over a presidential veto, wiped out the "pretended state governments" of the ten excluded states and divided them into five military districts, each commanded by an officer of the army. To escape military rule, states were required to assent to the Fourteenth Amendment, frame a new constitution with delegates chosen without regard to color, and submit the new constitution to the Congress for examination. Johnson's message vetoing the Reconstruction Act was angry and accusatory, calling the act "a bill of attainder against nine millions people at once" and suggesting that it reduced southerners to "the most abject and degrading slavery." Impeachment efforts in the House intensified, but the doubtfulness of conviction in the Senate, due in part to the knowledge that removal of Johnson would elevate to the presidency the less than universally popular Ben Wade, President Pro Tempore of the Senate, convinced many in the House to hold their fire. Representative Blaine spoke for a number of conservative Republicans when he said he "would rather have the President than the shallywags of Ben Wade."
The issue that finally turned the tide in favor of impeachment concerned Johnson's alleged violation of the Tenure of Office Act. The Tenure of Office Act, passed in 1867 over yet another presidential veto, prohibited the President from removing from office, without the concurrence of the Senate, those officials whose appointment required Senate approval. The Act was passed primarily to preserve in office as Secretary of War Edwin Stanton, a holdover from the Lincoln Administration, who the radical Republicans regarded "as their trusty outpost in the camp of the enemy." Although Stanton for many months largely acquiesced in Johnson's reconstruction policies, by June of 1867, his opposition was out in the open. By July, Johnson was close to convinced that Stanton must go, Tenure of Office Act or no Tenure of Office Act. The final straw appears to have been the revelation on August 5, 1867, during an ongoing trial of Lincoln assassination conspirator John Surratt that Stanton two years earlier had deliberately withheld from Johnson a petition from five members of the military commission that convicted Mary Surratt urging that her death sentence be commuted to imprisonment. Stanton, Johnson believed, had hood-winked him into signing the death warrant of a woman who he most likely would have spared. That day Johnson sent Secretary Stanton the following message: "Sir: Public consideration of high character constrain me to say that your resignation as Secretary of War will be accepted." Stanton answered "that public considerations of a high character...constrain me not to resign." The Tenure of Office Act allowed the President to "suspend" an officer when the Congress was out of session, as it was at the time, so the President responded by suspending Stanton and replacing him with war hero Ulysses S. Grant.
In January of 1868 the returning Senate took up the issue of Johnson's suspension of Secretary Stanton, and voted 35 to 6 not to concur in the action. On January 14, a triumphant Stanton marched to his old office in the War Building as the President considered his next move. Johnson was anxious to challenge the constitutionality of the Tenure of Office Act in court, but to do so he would have to replace Stanton and defy the Senate. This he did on February 21, 1868, naming as the new Secretary of War Major General Lorenzo Thomas. When Stanton notified his Capitol Hill allies of the presidential order to vacate his office, he received from Senator Sumner a one-word telegram: "Stick." Impeachment in the House for violation of the Tenure of Office Act and other "high crimes and misdemeanors" was by now inevitable. On February 24, the House voted to adopt an Impeachment Resolution by a vote of 126 to 47. Five days later, formal articles of impeachment were adopted by the House.
On March 30, 1868, Benjamin Butler rose before Chief Justice Salmon Chase and fifty-four senators to deliver the opening argument for the House Managers in the impeachment trial of Salmon Chase. Historians such as David Dewitt have been struck by the improbability of the scene: "The ponderous two-handed engine of impeachment, designed to be kept in cryptic darkness until some crisis of the nation's life cried out for interposition, was being dragged into open day to crush a formidable political antagonist a few months before the appointed time when the people might get rid of him altogether." Butler's three-hour opening argument was "a lawyer's plea with a dash of the demagogue." He contemptuously dismissed arguments that the Tenure of Office Act didn't cover Stanton, read parts of Johnson's 1866 speeches that were the basis of the tenth article of impeachment, and referred to the President as "accidental Chief" and "the elect of an assassin."
House Managers proceeded to introduce documentary evidence and witness testimony supporting the eleven various articles of impeachment. Two witnesses described the confrontation between Edwin Stanton and Lorenzon Thomas in the War Office on the day of Stanton's firing, February 22. One witness brought on torrents of laughter by his description of his meeting with Thomas in the East Room of the White House when he told Thomas "that the eyes of Delaware were upon him." Several witnesses testified as to details concerning speeches by the President delivered in Cleveland and St. Louis in September of 1866. On Thursday, April 9, the Managers closed their case. Many observers concluded that the testimony added little to the Manager's case, and may have actually hurt their case by emphasizing the President's isolation and powerlessness in the face of a hostile Congress.
The opening argument for the President was delivered by Benjamin Curtis, a former justice of the Supreme Court best known for his dissent in the famous Dred Scott case. Curtis argued that Stanton was not covered by the Tenure of Office Act because the "term" of Lincoln ended with his death, that the President did not in fact violate the Act because he did not succeed in removing Stanton from office, and that the Act itself unconstitutionally infringed upon the powers of the President. As for the article based on Johnson's 1866 speeches, Curtis said "The House of Representatives has erected itself into a school of manners...and they desire the judgment of this body whether the President has not been guilty of indecorum." Curtis argued that conviction based on the tenth article of impeachment would violate the free speech clause of the First Amendment.
Counsel for the President called only two witnesses of real consequence. Lorenzo Thomas, Johnson's would-be Secretary of War, was sworn in as a witness for the President and examined by Attorney General Stanbery concerning his encounters with Stanton. According to Thomas's testimony, the two were surprisingly cordial after Stanton had Thomas arrested, at one point sharing a bottle of whiskey together. Secretary Welles was called for the purpose of testifying to the fact that the Cabinet had advised Johnson that the Tenure of Office Act was unconstitutional, and that Secretaries Seward and Stanton had agreed to prepare a draft of a veto message. Benjamin Curtis argued that the testimony was relevant because an article of impeachment charged the President with "intending" to violate the Constitution, and that Welles's testimony tended to show that the President honestly believed the law to be unconstitutional. Over the House Managers' objection, Chief Justice Chase ruled the evidence admissible, but was overruled by the Senate 29 to 20, and the testimony was not allowed.
Final arguments in the impeachment trial stretched from April 22 to May 6, with the Managers speaking for six days and counsel for the President speaking for five days. Arguments ranged from the technical to the hyperbolic. Manager Thaddeus Stevens railed against the "wretched man, standing at bay, surrounded by a cordon of living men, each with the axe of an executioner uplifted for his just punishment." Manager John Bingham brought the crowded galleries to its feet with his thunderous closing:
"May God forbid that the future historian shall record of this day's proceedings, that by reason of the failure of the legislative power of the people to triumph over the usurpations of an apostate President, the fabric of American empire fell and perished from the earth!...I ask you to consider that we stand this day pleading for the violated majesty of the law, by the graves of half a million of martyred hero-patriots who made death beautiful by the sacrifice of themselves for their country, the Constitution and the laws, and who, by their sublime example, have taught us all to obey the law; that none are above the law;... and that position, however high, patronage, however powerful, cannot be permitted to shelter crime to the peril of the republic."
William Groesbeck's peroration for the President offered a spirited defense of Johnson's view of reconstruction:
"He was eager for pacification. He thought that the war was ended. It seemed so. The drums were all silent; the arsenals were all shut; the roar of the cannon had died away to the last reverberations; the army was disbanded; not a single enemy confronted us in the field. Ah, he was too eager, too forgiving, too kind. The hand of reconciliation was stretched out to him and he took it. It may be that he should have put it away, but was it a crime to take it? Kindness, forgiveness a crime? Kindness a crime? Kindness is statesmanship. Kindness is the high statesmanship of heaven itself. The thunders of Sinai do but terrify and distract; alone they accomplish little; it is the kindness of Calvary that subdues and pacifies."
William Everts contended in his closing argument for the President that violation of the Tenure of Office Act did not rise to the level of an impeachable offense:
"They wish to know whether the President has betrayed our liberties or our possessions to a foreign state. They wish to know whether he has delivered up a fortress or surrendered a fleet. They wish to know whether he has made merchandise of the public trust and turned the authority to private gain. And when informed that none of these things are charges, imputed, or even declaimed about, they yet seek further information and are told that he has removed a member of his cabinet."
Finally, Attorney General Henry Stanbery's closing for the President compared conviction to a despicable crime:
"But if, Senators, as I cannot believe, but as has been boldly said with almost official sanction, your votes have beencanvassed and the doom of the President is sealed, then let that judgment not be pronounced in this Senate Chamber; not here,where our Camillus in the hour of our greatest peril, single-handed, met and baffled the enemies of the Republic; not here,where he stood faithful among the faithless; not here, where he fought the good fight for the Union and the Constitution; not inthis Chamber, whose walls echo with that clarion voice that, in the days of our greatest danger, carried hope and comfort tomany a desponding heart, strong as an army with banners. No, not here. Seek out rather the darkest and gloomiest chamberin the subterranean recesses of this Capitol, where the cheerful light of day never enters. There erect the altar and immolate thevictim."
Outwardly, House Managers were confident. Benjamin Butler told a Republican audience on May 4 that "The removal of the great obstruction is certain. Wade and prosperity are sure to come with the apple blossoms." Privately, the were less optimistic. In the week before the vote, much money was being bet by professional gamblers on the outcome of the trial, and the odds favored acquittal. On May 11, from 11 am to midnight, senators debated the merits of the case behind closed doors. The best chance for conviction seemed to rest with the eleventh article that charged the President with attempting to prevent Stanton from resuming his office after the Senate disapproved his suspension. It was obvious that the vote would be very close, depending upon the decisions of two or three undecided Senators. No Senator's vote was more critical than that of Edmund Ross of Kansas, who remained stubbornly silent throughout the trial and discussions.
At noon on May 16, 1868, the High Court of Impeachment was called to order by Chief Justice Chase. The galleries were packed and the House of Representatives was present en mass. A motion was made and adopted to vote first on the eleventh article. The Chief Justice said, "Call the roll." Historian David Dewitt described the tension as the roll call reaches the name of Senator Ross:
"Twenty-four 'Guilties' have been pronounced and ten more certain are to come. Willey is almost sure and that will make thirty-five. Thirty-six votes are needed, and with this one vote the grand consummation is attained, Johnson is out and Wade in his place. It is a singular fact that not one of the actors in that high scene was sure in his own mind how his one senator was going to vote, except, perhaps, himself. 'Mr. Senator Ross, how say you?' the voice of the Chief Justice rings out over the solemn silence. 'Is the respondent, Andrew Johnson, guilty or not guilty of a high misdemeanor as charged in this article?' The Chief Justice bends forward, intense anxiety furrowing his brow. The seated associates of the senator on his feet fix upon him their united gaze. The representatives of the people of the United States watch every movement of his features. The whole audience listens for the coming answer as it would have listened for the crack of doom. And the answer comes, full, distinct, definite, unhesitating and unmistakable. The words 'Not Guilty' sweep over the assembly, and, as one man, the hearers fling themselves back into their seats; the strain snaps; the contest ends; impeachment is blown into the air."
Lieutenant William Calley
Calley Court Martial Excerpts, Medina Court Martial Excerpts,Questions
for DiscussionOpinion Polls An Account'by Douglas Linder (c) 1999
The My Lai courts-martial are the stories of two tragedies growing out of American involvement in Viet Nam. One was the massacre by United States soldiers of as many as 500 unarmed civilians-- old men, women, children--in My Lai on the morning of March 16, 1968. The other was the cover-up of that massacre.
An Introduction to the My Lai Courts-MartialBy Doug Linder
Two tragedies took place in 1968 in Viet Nam. One was the massacre by United States soldiers of as many as 500 unarmed civilians-- old men, women, children-- in My Lai on the morning of March 16. The other was the cover-up of that massacre.
U. S. military officials suspected Quang Ngai Province, more than any other province in South Viet Nam, as being a Viet Cong stronghold. The U. S. targeted the province for the first major U.S. combat operation of the war. Military officials declared the province a "free-fire zone" and subjected it to frequent bombing missions and artillery attacks. By the end of 1967, most of the dwellings in the province had been destroyed and nearly 140,000 civilians left homeless. Not surprisingly, the native population of Quang Ngai Province distrusted Americans. Children hissed at soldiers. Adults kept quiet.
Two hours of instruction on the rights of prisoners and a wallet-sized card "The Enemy is in Your Hands" seemed to have little impact on American soldiers fighting in Quang Ngai. Military leaders encouraged and rewarded kills in an effort to produce impressive body counts that could be reported to Saigon as an indication of progress. GIs joked that "anything that's dead and isn't white is a VC" for body count purposes. Angered by a local population that said nothing about the VC's whereabouts, soldiers took to calling natives "gooks."
Charlie Company came to Viet Nam in December, 1967. It located in Quang Ngai Province in January, 1968, as one of the three companies in Task Force Barker, an ad hoc unit headed by Lt. Col. Frank Barker, Jr. Its mission was to pressure the VC in an area of the province known as "Pinkville." Charlie Company's commanding officer was Ernest Medina, a thirty-three-year-old Mexican-American from New Mexico who was popular with his soldiers. One of his platoon leaders was twenty-four-year-old William Calley. Charlie Company soldiers expressed amazement that Calley was thought by anyone to be officer material. One described Calley as"a kid trying to play war." [LINK TO CHAIN OF COMMAND DIAGRAM] Calley's utter lack of respect for the indigenous population was apparent to all in the company. According to one soldier, "if they wanted to do something wrong, it was alright with Calley." The soldiers of Charlie Company, like most combat soldiers in Viet Nam, scored low on military exams. Few combat soldiers had education beyond high school.
Seymour Hersh wrote that by March of 1968 "many in the company had given in to an easy pattern of violence." Soldiers systematically beat unarmed civilians. Some civilians were murdered. Whole villages were burned. Wells were poisoned. Rapes were common.
On March 14, a small squad from "C" Company ran into a booby trap, killing a popular sergeant, blinding one GI and wounding several others. The following evening, when a funeral service was held for the killed sergeant, soldiers had revenge on their mind. After the service, Captain Medina rose to give the soldiers a pep talk and discuss the next morning's mission. Medina told them that the VC's crack 48th Battalion was in the vicinity of a hamlet known as My Lai 4, which would be the target of a large-scale assault by the company. The soldiers' mission would be to engage the 48th Battalion and to destroy the village of My Lai. By 7 a.m., Medina said, the women and children would be out of the hamlet and all they could expect to encounter would be the enemy. The soldiers were to explode brick homes, set fire to thatch homes, shoot livestock, poison wells, and destroy the enemy. The seventy-five or so American soldiers would be supported in their assault by gunship pilots.
Medina later said that his objective that night was to "fire them up and get them ready to go in there; I did not give any instructions as to what to do with women and children in the village." Although some soldiers agreed with that recollection of Medina's, others clearly thought that he had ordered them to kill every person in My Lai 4. Perhaps his orders were intentionally vague. What seems likely is that Medina intentionally gave the impression that everyone in My Lai would be their enemy.
At 7:22 a.m. on March 16, nine helicopters lifted off for the flight to My Lai 4. By the time the helicopters carrying members of Charlie Company landed in a rice paddy about 140 yards south of My Lai, the area had been peppered with small arms fire from assault helicopters. Whatever VC might have been in the vicinity of My Lai had most likely left by the time the first soldiers climbed out of their helicopters. The assault plan called for Lt. Calley's first platoon and Lt. Stephen Brooks' second platoon to sweep into the village, while a third platoon, Medina, and the headquarters unit would be held in reserve and follow the first two platoons in after the area was more-or-less secured. Above the ground, the action would be monitored at the 1,000-foot level by Lt. Col. Barker and at the 2,500-foot level by Oran Henderson, commander of the 11th Brigade, both flying counterclockwise around the battle scene in helicopters.
My Lai village had about 700 residents. They lived in either red-brick homes or thatch-covered huts. A deep drainage ditch marked the eastern boundary of the village. Directly south of the residential area was an open plaza area used for holding village meetings. To the north and west of the village was dense foliage [MAP].
By 8 a.m., Calley's platoon had crossed the plaza on the town's southern edge and entered the village. They encountered families cooking rice in front of their homes. The men began their usual search-and-destroy task of pulling people from homes, interrogating them, and searching for VC. Soon the killing began. The first victim was a man stabbed in the back with a bayonet. Then a middle-aged man was picked up, thrown down a well, and a grenade lobbed in after him. A group of fifteen to twenty mostly older women were gathered around a temple, kneeling and praying. They were all executed with shots to the back of their heads. Eighty or so villagers were taken from their homes and herded to the plaza area. As many cried "No VC! No VC!", Calley told soldier Paul Meadlo, "You know what I want you to do with them". When Calley returned ten minutes later and found the Vietnamese still gathered in the plaza he reportedly said to Meadlo, "Haven't you got rid of them yet? I want them dead. Waste them." Meadlo and Calley began firing into the group from a distance of ten to fifteen feet. The few that survived did so because they were covered by the bodies of those less fortunate.
What Captain Medina knew of these war crimes is not certain. It was a chaotic operation. Gary Garfolo said, "I could hear shooting all the time. Medina was running back and forth everywhere. This wasn't no organized deal." Medina would later testify that he didn't enter the village until 10 a.m., after most of the shooting had stopped, and did not personally witness a single civilian being killed. Others put Medina in the village closer to 9 a.m., and close to the scene of many of the murders as they were happening.
As the third platoon moved into My Lai, it was followed by army photographer Ronald Haeberle, there to document what was supposed to be a significant encounter with a crack enemy battalion. Haeberle took many pictures [HAEBERLE PHOTOS]. He said he saw about thirty different GIs kill about 100 civilians. Once Haeberle focused his camera on a young child about five feet away, but before he could get his picture the kid was blown away. He angered some GIs as he tried to photograph them as they fondled the breasts of a fifteen-year-old Vietnamese girl.
An army helicopter piloted by Chief Warrant Officer Hugh Thompson arrived in the My Lai vicinity about 9 a.m. Thompson noticed dead and dying civilians all over the village. Thompson repeatedly saw young boys and girls being shot at point-blank range. Thompson, furious at what he saw, reported the wanton killings to brigade headquarters [THOMPSON'S STORY].
Meanwhile, the rampage below continued. Calley was at the drainage ditch on the eastern edge of the village, where about seventy to eighty old men, women, and children not killed on the spot had been brought. Calley ordered the dozen or so platoon members there to push the people into the ditch, and three or four GIs did. Calley ordered his men to shoot into the ditch. Some refused, others obeyed. One who followed Calley's order was Paul Meadlo, who estimated that he killed about twenty-five civilians. (Later Meadlo was seen, head in hands, crying.)
Calley joined in the massacre. At one point, a two-year-old child who somehow survived the gunfire began running towards the hamlet. Calley grabbed the child, threw him back in the ditch, then shot him.
Hugh Thompson, by now almost frantic, saw bodies in the ditch, including a few people who were still alive. He landed his helicopter and told Calley to hold his men there while he evacuated the civilians. Thompson told his helicopter crew chief to "open up on the Americans" if they fired at the civilians. He put himself between Calley's men and the Vietnamese. When a rescue helicopter landed, Thompson had the nine civilians, including five children, flown to the nearest army hospital. Later, Thompson was to land again and rescue a baby still clinging to her dead mother.
By 11 a.m., when Medina called for a lunch break, the killing was nearly over. By noon, "My Lai was no more": its buildings were destroyed and its people dead or dying. Soldiers later said they didn't remember seeing "one military-age male in the entire place". By night, the VC had returned to bury the dead. What few villagers survived and weren't already communists, became communists. Twenty months later army investigators would discover three mass graves containing the bodies of about 500 villagers.
II.The cover-up of the My Lai massacre began almost as soon as the killing ended. Official army reports of the operation proclaimed a great victory: 128 enemy dead, only one American casualty (one soldier intentionally shot himself in the foot). The army knew better. Hugh Thompson had filed a complaint, alleging numerous war crimes involving murders of civilians. According to one of Thompson's crew members, "Thompson was so pissed he wanted to turn in his wings". An order issued by Major Calhoun to Captain Medina to return to My Lai to do a body count was countermanded by Major General Samuel Koster, who asked Medina how many civilians has been killed. "Twenty to twenty-eight," was his answer. The next day Colonel Henderson informed Medina that an informal investigation of the My Lai incident was underway-- and most likely gave the Captain "a good ass-chewing" as well. Henderson interviewed a number of GIs, then pronounced himself "satisfied" by their answers. No attempt was made to interview surviving Vietnamese. In late April, Henderson submitted a written report indicating that about twenty civilians had been inadvertently killed in My Lai. Meanwhile, Michael Bernhart, a Charlie Company GI severely troubled by what he witnessed at My Lai discussed with other GIs his plan to write a letter about the incident to his congressman. Medina, after learning of Bernhart's intentions, confronted him and told him how unwise such an action, in his opinion, would be.
If not for the determined efforts of a twenty-two-year-old ex-GI from Phoenix, Ronald Ridenhour, what happened on March 16, 1968 at My Lai 4 may never have come to the attention of the American people. Ridenhour served in a reconnaissance unit in Duc Pho, where he heard five eyewitness accounts of the My Lai massacre. He began his own investigation, traveling to Americal headquarters to confirm that Charlie Company had in fact been in My Lai on the date reported by his witnesses. Ridenhour was shocked by what he learned [RIDENHOUR'S STORY]. When he was discharged in December, 1968, Ridenhour said "I wanted to get those people. I wanted to reveal what they did. My God, when I first came home, I would tell my friends about this and cry-literally cry." In March, 1969, Ridenhour composed a letter detailing what he had heard about the My Lai massacre[LINK TO LETTER]and sent it to President Nixon, the Pentagon, the State Department, the Joint Chiefs of Staff, and numerous members of Congress. Most recipients simply ignored the letter, but a few, most notably Representative Morris Udall, aggressively pushed for a full investigation of Ridenhour's allegations.
By late April, General Westmoreland, Army Chief of Staff, had turned the case over to the Inspector General for investigation. Over the next few months, dozens of witnesses were interviewed. It became apparent to all connected with the investigation that war crimes had been committed. In June, 1969, William Calley was flown back from Viet Nam to appear in a line-up for identification by Hugh Thompson. By August, the matter was in the hands of the army's Criminal Investigation Division for a determination as to whether criminal charges should be filed against Calley and other massacre participants. On September 5, formal charges, included six specifications of premeditated murder, were filed against Calley.
Calley hired as his attorney George Latimer, a Salt Lake City lawyer with considerable military experience, having served on the Military Court of Appeals. Latimer pronounced himself impressed with Calley. "You couldn't find a nicer boy," he said, adding that if Calley was guilty of anything it was only following orders "a bit too diligently."
Meanwhile, the issue of the My Lai massacre had gotten the attention of President Nixon. Secretary of Defense Melvin Laird briefed Nixon at his San Clemente retreat. The White House proceeded with caution, sensing the potential of the incident to embarrass the military and undermine the war effort. The President characterized what happened at My Lai as an unfortunate aberration, as "an isolated incident."
In November, 1969, the American public began to learn the details of what happened at My Lai 4. The massacre was the cover story in both Time and Newsweek. CBS ran a Mike Wallace interview with Paul Meadlo. Seymour Hersh published in depth accounts based on his own extensive interviews. Life magazine published Haeberle's graphic photographs.
Reaction to the reports of the massacre varied. Some politicians, such as House Armed Services Subcommittee Chair L. Mendel Rivers maintained that there was no massacre and that reports to the contrary were merely attempts to build opposition to the Viet Nam war. Others called for an open, independent inquiry. The Administration took a middle course, deciding on a closed-door investigation by the Pentagon, headed by William Peers, a blunt three-star general.
For four months the Peers Panel interviewed 398 witnesses, ranging from General Koster to the GIs of Charlie Company. Over 20,000 pages of testimony were taken. The Peers Report criticized the actions of both officers and enlisted men. The report recommended action against dozens of men for rape, murder, or participation in the cover-up.
III.The Army's Criminal Investigation Division continued its separate investigation. Most of the enlisted men who committed war crimes were no longer members of the military, and thus immune from prosecution by court-martial.
A 1955 Supreme Court decision, Toth vs Quarles, held that military courts cannot try former members of the armed services "no matter how intimate the connection between the offense and the concerns of military discipline." Decisions were made to prosecute a total of twenty-five officers and enlisted men, including General Koster, Colonel Oran Henderson, Captain Medina. In the end, however, only few would be tried and only one, William Calley, would be found guilty. The top officer charged, General Samuel Koster, who failed to report known civilian casualties and conducted a clearly inadequate investigation was, according to General Peers, the beneficiary of a whitewash, having charges against him dropped and receiving only a letter of censure and reduction in rank. Colonel Henderson was found not guilty on all charges after a trial by court martial. Peers again expressed his disapproval, writing "I cannot agree with the verdict. If his actions are judged as acceptable standards for an officer in his position, the Army is indeed in deep trouble."
Captain Ernest Medina faced charges of murdering 102 Vienamese civilians. The charges were based on the prosecution's theory of command responsibility: Medina, as the officer in charge of Charlie Company should be accountable for the actions of his men. If Medina knew that a massacre was taking place and did nothing to stop it, he should be found guilty of murder. (Medina was originally charged also with dereliction of duty for participating in the coverup, but the offense was dropped because the statute of limitations had run.) Medina was subjected to a lie-detector test which tended to show he responded truthfully when he said that he did not intentionally suggest to his men that they kill unarmed civilians. The same test, however, tended to to show that his contention that he first heard of the killing of unarmed civilians about 10 to 10:30 A.M. was not truthful, and that he in fact knew non-combattants were being killed sometime between 8 A.M. and 9 A.M., when there would still have been time to prevent many civilian deaths. The prosecution, led by Major William Eckhardt, was unable, however, to get the damaging lie-detector evidence admitted. Medina's lawyer, flamboyant defense attorney F. Lee Bailey, conducted a highly successful defense, forcing the prosecution to drop key witnesses and keeping damaging evidence, such as Ronald Haeberle's photographs, from the jury. After fifty-seven minutes of deliberation, the jury acquitted Medina on all charges. (Months later, when a perjury prosecution was no longer possible, Medina admitted that he had suppressed evidence and lied to the brigade commander about the number of civilians killed.)
The strongest government case was that against Lt. William Calley. On November 12, 1970, in a small courthouse in Fort Benning, Georgia, young Prosecutor Aubrey Daniel stood to deliver his opening statement: "I want you to know My Lai 4. I will try to put you there." Captain Daniel told the jury of six military officers the shocking story of Calley's role in My Lai's tragedy: his machine-gunning of people in the plaza area south of the hamlet; his orders to men to execute men, women, and children in the eastern drainage ditch; his butt-stroking with his rifle of an old man; his grabbing of a small child and his throwing of the child into the ditch, then shooting him at point-blank range. Daniel told the jury that at the close of evidence he would ask them to "in the name of justice" convict the accused of all charges.
Daniel built the prosecution's case methodically. For days, the grisly evidence accumulated without a single witness directly placing Calley at the scene of a shooting. One of the early witnesses was Ronald Haeberle, the army photographer whose pictures brought home the horror of My Lai [TESTIMONY OF HAEBERLE]. Another was Hugh Thompson, My Lai's hero. Defense attorney Latimer's handling on cross of Haeberle, Thompson, and other witnesses led many courtroom observers to conclude that his glowing reputation was undeserved. His questioning of Haeberle, whose credibility was largely irrelevant, was pointless. His attempt to question Thompson's heroism "failed utterly," according to Richard Hammer, author of The Court-Martial of Lt. Calley.
In the second week of the trial Daniel began to call his more incriminating witnesses. Robert Maples, a machine gunner in the first platoon, testified that he saw Calley near the eastern drainage ditch, firing at the people below. Maples said that Calley asked him to use his machine gun on the Vietnamese in the ditch, but that he refused [TESTIMONY OF MAPLES]. Dennis Conti provided equally damning evidence. Conti testified that he was ordered to round up people, mostly women and children, and bring them back to Calley on the trail south of the hamlet. Calley, Conti said, told us to make them "squat down and bunch up so they couldn't get up and run." Minutes later Calley and Paul Meadlo "fired directly into the people. There were burst and shots for two minutes. The people screamed and yelled and fell." Conti said that Meadlo "broke down" and began crying [TESTIMONY OF CONTI].
The prosecution's final witness was its most anticipated witness. Paul Meadlo had been promised immunity from military prosecution in return for his testimony in the Calley case, but when he was called earlier in the trial, Meadlo had refused to answer questions about March 16, 1968, claiming his fifth amendment right not to incriminate himself. Daniel called Meadlo to the stand for a second time, and the ex-GI, who had lost a foot to a mine shortly after the massacre, limped to the stand in his green short-sleeve shirt and green pants. Judge Kennedy warned Meadlo that if he refused to answer questions, two U. S. marshals would take him into custody.
Meadlo said he would testify. He told the jury that Calley had left him with a large group of mostly women and children south of the hamlet saying, "You know what to do with them, Meadlo." Meadlo thought Calley meant he should guard the people, which he did. Meadlo told the jury what happened when Calley returned a few minutes later:
He said, "How come they're not dead?" I said, I didn't know we were supposed to kill them." He said, I want them
dead." He backed off twenty or thirty feet and started shooting into the people -- the Viet Cong -- shooting automatic. He was
beside me. He burned four or five magazines. I burned off a few, about three. I helped shoot ‘em.
Q: What were the people doing after you shot them?
A: They were lying down.
Q: Why were they lying down?
A: They was mortally wounded.
Q: How were you feeling at that time?
A: I was mortally upset, scared, because of the briefing we had the day before.
Q: Were you crying?
A: I imagine I was....
Daniel then asked Meadlo about the massacre at the eastern drainage ditch, and in the same almost emotionless voice, Meadlo recounted the story, telling the jury that Calley fired from 250 to 300 bullets into the ditch. One exchange was remarkable:
Q: What were the children in the ditch doing?
A: I don't know.
Q: Were the babies in their mother's arms?
A: I guess so.
Q: And the babies moved to attack?
A: I expected at any moment they were about to make a counterbalance.
Q: Had they made any move to attack?
A: No.
At the end of Meadlo's testimony, Aubrey Daniel rested the for the prosecution [MEADLO'S TESTIMONY].
The defense strategy had two main thrusts. One was to suggest that the stress of combat, the fear of being in an area thought to be thick with the enemy, sufficiently impaired Calley's thinking that he should not be found guilty of premeditated murder for his killing of civilians. Latimer relied on New York psychiatrist Albert La Verne to advance this defense argument [LAVERNE TESTIMONY]. The second argument of the defense was that Calley was merely following orders: that Captain Ernest Medina had ordered that civilians found in My Lai 4 be killed and was the real villain in the tragedy.
On February 23, 1971, William Calley took the stand. He told the jury he couldn't remember a single army class on the Geneva Convention, but that he did know he could be court-martialed for refusing to obey an order. He testified that Medina had said the night before that there would be no civilians in My Lai, only the enemy. He said that while he was in the village, Medina called and asked why he hadn't "wasted" the civilians yet. He admitted to firing into a ditch full of Vietnamese, but claimed that others were already firing into the ditch when he arrived. Calley said, "I felt then--and I still do-- that I acted as directed, I carried out my orders, and I did not feel wrong in doing so" [CALLEY TESTIMONY].
Ernest Medina was called as a witness of the court. Medina directly contradicted Calley's testimony. Medina said he was asked at the briefing on March 15 whether "we kill women and children," and-- looking straight at Calley behind the defense table--he said to the GIs "No, you do not kill women and children...Use common sense." At the close of his testimony, Medina saluted Judge Kennedy, then marched past Calley's table without glancing at him [MEDINA TESTIMONY].
It was time for summations. George Latimer for the defense argued that Medina was lying about not giving the order to kill civilians, that Medina knew perfectly well what was going on in the village, and now he and the army were trying to make Calley a scapegoat[LATIMER SUMMATION]. Aubrey Daniel for the prosecution asked the jury who will speak for the children of My Lai. He pointed out that Calley as a U. S. officer took an oath not to kill innocent women and children, and told the jury it is "the conscience of the United States Army"[DANIEL SUMMATION].
After thirteen days of deliberations, the longest in U. S. court-martial history, the jury returned its verdict: guilty of premeditated murder on all specifications. After hearing pleas on the issue of punishment, jury head Colonel Clifford Ford pronounced Calley's sentence: "To be confined at hard labor for the length of your natural life; to be dismissed from the service; to forfeit all pay and allowances."
IV.Opinion polls showed that the public overwhelmingly disapproved of the verdict in the Calley case [OPINION POLLS]. President Nixon ordered Calley removed from the stockade and placed under house arrest. He announced that he would review the whole decision. Nixon's action prompted Aubrey Daniel to write a long and angry letter in which he told the President that "the greatest tragedy of all will be if political expediency dictates the compromise of such a fundamental moral principle as the inherent unlawfulness of the murder of innocent persons" [AUBREY LETTER]. On November 9, 1974, the Secretary of the Army announced that William Calley would be paroled. In 1976, Calley married. He now works in the jewelry store of his father-in-law in Columbus, Georgia.
My Lai mattered. Two weeks after the Calley verdict was announced, the Harris Poll reported for the first time that a majority of Americans opposed the war in Viet Nam. The My Lai episode caused the military to re-evaluate its training with respect to the handling of noncombatants. Commanders sent troops in the Desert Storm operation into battle with the words, "No My Lais-- you hear?"
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