Bill of Rights in Action

Vol. 6  No. 4 | BRIA Archives

The Case of the Defendant who was Bound and Gagged

On October 29, 1969, a startling scene unfolded in a Chicago courtroom. A defendant who had constantly interrupted the proceedings at his trial was chained to a chair and gagged in full view of the jury. The defendant was Bobby Seale, a leader of the Black Panther Party. Seale was accused along with seven white men of conspiring to cross state lines with the intent of causing riots during the 1968 Democratic Nominating Convention.

Some Americans wondered if Seale, as he rattled his chains and tried to speak through his gag, could possibly receive a fair trial as demanded by the Sixth Amendment of the Bill of Rights. Others argued that something had to be done to prevent Seale from sabotaging the judicial process.

Days of Rage

The late l960s were times of great turmoil in the United States. While nearly 500,000 U.S. troops fought in South Vietnam, anti-war protests at home grew larger and, at times, violent. College campuses were scenes of vigorous political protests. Riots, mainly in poor black neighborhoods, erupted in major American cities, reflecting the lack of progress in addressing racism and poverty. At the same time, a youth counter-culture movement, characterized by mammoth rock concerts, widespread drug use, and dramatic rejection of traditional values, swept the nation. 

The Democrats had controlled the White House and Congress during most of the 1960s. When the Democratic Party announced that its convention would be held in Chicago during August of 1968, Vietnam War opponents and other protesters saw an opportunity to demonstrate against government leaders.

While protest groups made their plans, government officials prepared for the worst. In April 1968, President Johnson signed a law allowing the federal government to prosecute persons who had travelled across state lines to incite a riot. Meanwhile, in Chicago, rumors that assassinations, sabotage, and other violent acts would occur during convention week set the city on edge. 

Protest organizers negotiated with Chicago officials for permits to allow demonstrators to sleep in city parks and to hold a march and rally. Fearing such activities would turn into riots, the city denied the permits.

In mid-August people from all over the country began to drift into the city. By the Saturday before convention week, about 10,000 persons had assembled in Lincoln Park, far below the number predicted by protest organizers. Nevertheless, the Chicago police, expecting trouble, ringed the park. 

Chicago police were determined to prevent Lincoln Park from being used as a campsite by the demonstrators. On Saturday, August 24, the police proceeded to clear the park at 11:00 p.m. with only a handful of arrests. The next evening the Chicago lawmen used tear gas and clubs to drive the people out of the park. The crowd members responded by yelling obscenities and throwing stones and bottles at the police. A small number of police officers removed their badges and nameplates and then beat individuals with clubs.

As convention week began, protest organizers led several marches and demonstrations. On Tuesday evening, Black Panther leader Seale spoke to a large group in Lincoln Park. Calling for a revolution in the United States, Seale told his listeners to
". . . get your shotguns, get your .357 magnums and get your .45s and everything else you can get."  He concluded by saying, "If the pigs treat us unjustly tonight we'll have to barbecue some of that pork."

Wednesday, August 28, was the most violent day of convention week. Bobby Seale, speaking to several hundred persons, called for them to "Burn the city. . . tear it down."  Violent incidents between the police and crowds of demonstrators occurred throughout the day. At one point, a line of police officers moving toward a crowd broke ranks and attacked everyone in sight,  including journalists.

The "Chicago 8"

In December 1968, the National Commission on the Causes and Prevention of Violence issued a report on what happened in Chicago. Entitled Rights in Conflict, this report resulted from an exhaustive investigation based on eyewitness accounts, film coverage, and official government documents. It concluded that despite the verbal and physical provocations, a "police riot" had occurred.

Three months later, however, a Chicago federal grand jury indicted David Dellinger, Rennie Davis, Tom Hayden, Abbie Hoffman, Jerry Rubin, Lee Weiner, John Froines, and Bobby Seale for several offenses, including conspiracy to cross state lines with the intent to incite a riot. These "Chicago 8" became co-defendants in one of America's most spectacular criminal trials.

The "Chicago 8" trial was assigned to Judge Julius J. Hoffman, who was known for his rulings favoring the prosecution, strict courtroom decorum, and stiff sentences. Six lawyers represented the defendants. However, Bobby Seale's attorney, Charles Garry, was unable to appear at the trial due to illness. Judge Hoffman denied Garry's request to delay Bobby Seale's part of the trial, and ordered the Black Panther leader brought to Chicago from California.

The trial began with jury selection in late September 1969. The jury members were mostly white, middle class, and middle aged. "What a scene it must have been," defendant Tom Hayden later recalled. "Eight madmen in bright clothes passing notes, climbing over the table, whispering, laughing, arguing over the appearance of the jurors. We were judging them, putting them down, shaking our heads, looking sharply at them, yet we were the ones on trial."

The defendants punctuated the trial with wild gestures and outbursts of laughter. They refused to rise when Judge Hoffman entered the courtroom. They wore American and Communist Vietnamese flags. One day Jerry Rubin and Abbie Hoffman appeared wearing judicial robes, which they threw onto the floor to wipe their feet.

Bobby Seale vs. Judge Hoffman

When the "Chicago 8" trial began, Bobby Seale claimed he had no lawyer to defend him since Charles Garry was still recovering from surgery. Seale demanded to defend himself until Garry was well enough to be present. Judge Hoffman ignored this demand, telling Seale he was already represented by William Kunstler,  another defense attorney who had spoken for Seale at some pre-trial hearings. Seale replied that he had "fired" Kunstler, again claiming the right to defend himself. The judge, however, refused to allow Seale to make any opening statement, cross-examine witnesses, or speak to the jury in any way.

Claiming that Judge Hoffman had denied his right to counsel, Bobby Seale began to interrupt the proceedings. When he attempted to speak and to question witnesses, Judge Hoffman ordered him to remain quiet. This led to numerous verbal exchanges between Seale and the judge. On one occasion Seale called Judge Hoffman, "a bigot, a racist, and a fascist."

Finally, on October 29, Judge Hoffman ordered Bobby Seale chained to a chair with a gag in his mouth. The following day the noisy chains were replaced by a strap. Seale's mouth was taped with a gag on top. His jaw was tied shut by a strip of cloth wrapped from the bottom of his chin to the top of his head.

For several days Seale appeared in court bound and gagged before the jury, struggling to get free and managing to make muffled sounds. Defense attorney Kunstler declared, "This is no longer a court of order, Your Honor, this is a medieval torture chamber."

On November 3, Judge Hoffman allowed Bobby Seale into court without his restraints, warning him against any further interruptions. Seale, however, continued to disrupt the trial. Judge Hoffman then declared a mistrial in Bobby Seale's case,   holding that Seale's misconduct was ". . . a deliberate and wilful attack upon the administration of justice in an attempt to sabotage the functioning of the federal judiciary system."
"That's a lie!" Seale shouted at the judge. "I called you a racist and a fascist and a pig, and that's what I consider you as, and my arguments and my motions will always carry that as long as my constitutional rights are being denied. So it is a lie, and you know it."

Judge Hoffman then found the Black Panther leader guilty of 16 acts of contempt of court and sentenced him to four years in prison. Seale was carried out of the courtroom as spectators screamed "Free Bobby!"

Days of Reason

The trial of the remaining seven defendants went on for more than three months. At the end of the trial, while the jury deliberated, Judge Hoffman found the seven defendants and their attorneys guilty of 159 instances of contempt of court.

The jury returned its verdict on February 18, l970. All seven defendants were acquitted of the conspiracy charge, but Dellinger, Davis, Hayden, Rubin, and Abbie Hoffman were convicted of crossing state lines with the intent of inciting a riot. Judge Hoffman sentenced each to five years in prison and a $5,000 fine, the maximum penalty.

The case did not end there. On May 11, 1972, the Court of Appeals sent the contempt convictions to a new judge for a trial. The appeals court also ruled that Judge Hoffman abused his power by rejecting Bobby Seale's claim that he lacked legal representation. Six months later, the same appeals court reversed the convictions of the five defendants found guilty by the jury and ordered a new trial. It criticized Judge Hoffman's "often antagonistic attitude toward the defense."  [United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972)]

The government prosecutors decided not to pursue a new trial for the five defendants. They did go ahead with a trial on Judge Hoffman's 159 contempt court charges. In Seale's case, the government dropped both the inciting to riot and contempt charges.

Finally, in 1973, three of the "Chicago 8" defendants and defense attorney William Kunstler were found guilty of contempt. But the judge decided that prison sentences were unwarranted. Thus, all of the defendants and their attorneys were free. In the end, reason prevailed.

For Discussion and Writing

1. Read again Bobby Seale's words from his speeches in Chicago on August 27 and 28. Do you think his words were inciting to riot, or were they protected by the First Amendment?
2. Role play an argument between Bobby Seale and Judge Hoffman over Seale's misbehavior in court. Why do you think Seale disrupted the "Chicago 8" trial?  Is there ever any justification for such conduct by Seale and the other defendants?
3. Do you think binding and gagging a defendant in court would prejudice the jury and prevent a fair trial?

A  C  T  I  V  I  T  Y

THE DISRUPTIVE DEFENDANT

The Sixth Amendment states that a defendant in a criminal trial has the right to face in court the witnesses who testify against him or her. But what should a judge do when a defendant continually disrupts the trial?

A. Form small groups to discuss the following two cases:  

1. What do you think Judge Hoffman should have done when Bobby Seale constantly interrupted court proceedings and refused to remain quiet?  

2. What do you think the judge should have done in the case of a man accused of robbery who rejected a court-appointed attorney, insisted on defending himself, threatened the judge, refused to stop talking, and declared "There's not going to be no trial"?

B. Discuss the following questions as a class:  

1. How were the cases above similar?  How were they different?

2. What was the best way for the judge in each case to handle the disruptive defendant?  

3. Make a list on the chalkboard of all the possible ways a judge might deal with a disruptive defendant. By a class vote, rank these strategies from best to worst.

   *  *  *  *  *

The binding and gagging of Bobby Seale never became the subject of a U.S. Supreme Court case because all the charges against him were dropped. The case of the disruptive robbery defendant did reach the Supreme Court. The justices in this case unanimously decided that the Sixth Amendment right of a defendant to be present at his or her trial may be surrendered ". . . if it is abused for the purpose of frustrating the trial."  The Supreme Court identified three constitutionally acceptable strategies to deal with a disruptive defendant: (1) a contempt of court warning, (2) removal from the courtroom until the defendant promises to behave, and (3) binding and gagging, but only as a last resort. [Illinois v. Allen, 397 U.S. 337 (1970)]