No Again on the Conspiracy Law

After ten long weeks, 64 witnesses and many thousands of pages of testimony, the pivotal question in the trial of the Harrisburg Seven remained unanswered: When does chitchat become conspiracy?

From the beginning, the defense contended that the letters between the Rev. Philip Berrigan and Sister Elizabeth McAlister, some of which alluded to the kidnaping of Henry Kissinger and the blowing up of heating tunnels in Washington, D.C., were merely loose talk. "Conspiracy," said Assistant Defense Attorney Leonard Boudin in his closing argument, "is when a group of people get together and make a commitment--a firm commitment--to action." Countered Chief Prosecutor William Lynch: "Words are the trigger of action." In the end, no amount of words could trigger the jury to action. Last week, after seven days of wearying deliberation, the nine women and three men confessed that they were hopelessly deadlocked on the conspiracy charges, and the case was declared a mistrial.

The jurors did find Berrigan and Sister Elizabeth guilty of the charge of illegally smuggling their letters in and out of the Lewisburg, Pa., federal prison where the Catholic priest was serving a six-year term for destroying Selective Service records. Convicted on seven smuggling counts in all, Berrigan and Sister Elizabeth face possible maximum sentences of 40 and 30 years respectively for violating the prison contraband law. The defense was quick to point out, however, that the rule is primarily concerned with drugs and weapons and that the smuggling of letters is so commonplace as to be generally overlooked. Laying the groundwork for a May 2 hearing on a motion to reverse the convictions, the defense claims that the U.S. has never tried other similar offenders of the statute and that to do so in the case of the Harrisburg pen pals would be "discriminatory prosecution."

Throughout the jury's marathon deliberation, the defense was never idle, firing off one motion for a mistrial after another. Obviously perplexed by the legal complexities of the charges, the jurors on two occasions asked Federal Judge R. Dixon Herman to please re-explain exactly what comprises a conspiracy. His explanation, the defense objected, was "contradictory, irrelevant to the issues, grossly confusing and repetitious." In one note breaking down the subdivisions under count 1, the all-important conspiracy charge, the jury asked: "Do we find some of the defendants guilty if we have evidence that they have conspired to commit A, B, C (the vandalizing of draft boards) and F (the Kissinger kidnaping) and if we cannot find enough evidence that anyone conspired to commit D and E (the bombing of heating tunnels)?" When the judge replied affirmatively, the defense charged that his answer "amounts to a directed verdict of guilty against at least some of the defendants."

Hugging. The jury pondered for a total of 59 1/2 hours, one of the longest periods ever in a federal criminal case. Along the way, the defense made several of its motions for a mistrial (all denied) by posing the question of how long a jury can deliberate before free discussion becomes court "coercion" to arrive at a verdict. At one point, the defense called for a mistrial based in part on the fact that Judge Herman had "summarily denied" a request by married jurors for conjugal visits. That in turn led trial-goers to pass the time by envisioning such headlines as SEX-STARVED JURY CONVICTS CELIBATES, a gag based on the fact that six of the seven defendants are or were priests or nuns.

When no conviction came, the Harrisburg Seven eagerly claimed a moral victory, hugging one another and raising their fingers in the peace sign. Though they elected not to testify in their own behalf, the defendants' cause was stridently reiterated in the Easter week demonstrations in Harrisburg that attracted speakers ranging from Alger Hiss and the Rev. Ralph Abernathy to Daniel Ellsberg and Congresswoman Bella Abzug. "We have a feeling that we are celebrating something of a victory," said Sister Elizabeth. Eqbal Ahmad, a Pakistani scholar and the only non-Catholic defendant, announced to cheering supporters: "My plans are to get out of here as soon as I can and go into the streets to protest the Viet Nam War. We have not been frightened by the Government." Referring to the prison letters, the Rev. Daniel Berrigan predicted: "They'll probably be a literary treasure in a few years."

Afterward, Juror Lawrence Evans, a supermarket owner, claimed that he was one of only two jury members who held out for a conviction. Asked if some jurors were influenced by the religious calling of the defendants, he said: "Yes. Some felt they could do no wrong. They were really prejudiced." Juror Vera Thompson, a Carlisle, Pa., stock clerk, allowed that Boyd Douglas, the Government's star witness, was "the reason you had a hung jury." She explained that several jurors simply did not believe Informer Douglas, the ex-convict who shuttled the Berrigan-McAlister letters in and out of prison and later turned copies over to the FBI (see THE LAW). Mrs. Thompson added that she, like many of the jurors, was "totally confused" by the conspiracy law.

The Results. That confusion should give the Justice Department pause when it decides whether to retry the Harrisburg Seven, in a case that has already cost the Government an estimated $1,500,000. Indeed, the conspiracy law, invoked against such varied defendants as Charles Manson, Dr. Benjamin Spock, Bobby Scale and members of the Mafia, has lately come under attack as one of the most elusive and elastic on the books. According to legal critics, U.S. prosecutors have increasingly and often unfairly exploited the fact that a conspiracy charge requires less evidence of actual injurious conduct than any other crime. There is also rising concern about the Government's use of the law against militant political groups.

Perhaps with that in mind, late last week a Justice Department official admitted that a retrial of the Harrisburg Seven was not likely. "You look at the results we got," he said, "and where they got tried, and you have to come to the conclusion that there's nothing more to be gained." Or to be lost.

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