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A deserved honor for the ‘Catonsville Nine’

Jack LB Gohn

There were two pieces recently in The Baltimore Sun about the “Catonsville Nine,” a group of Catholic anti-war demonstrators who, 50 years ago this month, seized and burned draft records in Catonsville and went to prison for it. One story told how the Nine were recently acknowledged with a state historical plaque on the site of their demonstration.

In the other, an op-ed piece, Stephen H. Sachs, former U.S. attorney for Maryland, later Maryland Attorney General, the man who supervised the prosecution of the Nine, while crediting their courage and conviction, faulted their behavior and called them “self-righteous.”

Sachs is a colleague most Maryland lawyers, including myself, hold in great esteem. However, he does that esteem no favors with these remarks.

In 1968, the Vietnam War was being prosecuted by a government that already secretly knew to a near-certainty it could not be won. Popular support had been maintained only by the government’s lies about the prospects for victory, and slipped irreversibly below 50 percent shortly after the Nine’s demonstration. It is now well known that the only reason President Lyndon B. Johnson kept it going was to avoid the nation’s losing face. And it was costing, on average, over a thousand American lives and countless Vietnamese ones each month.

An undeclared war carried on simply to save face is unforgivably immoral and arguably illegal. And there was no way the war could have been waged without the draft. It followed that an attack on the draft was a direct attack on a clearly immoral and possibly illegal war.

Of course, a war’s immorality does not justify all possible responses. But Sachs finds the Nine’s legal theories dangerous and their characters wanting. And on both counts he is wrong, and, worse than wrong, blind to the dangers in his own approach, then and now.

Nullification

The Nine hoped to be acquitted by a jury, in the teeth of both the evidence and law. Jurors have the power and the right to do this, a practice known as nullification. Nullification has been a part of American jurisprudence at least since the 1735 sedition trial of New York journalist John Peter Zenger, in which his lawyer was permitted to argue to the jurors that they had the right to acquit him, even though the prosecution had proved its case. The jury did acquit, much to the annoyance of the Crown, and thereby speeded the eventual and welcome demise of sedition laws in the republic which succeeded the colonial government that had tried Zenger.

Nullification is an important social safety valve where prosecutorial discretion is questionable – for instance, when it might violate a community’s conscience to penalize illegal behavior but the prosecution insists on trying to penalize it anyway. Despite nullification’s value, courts and prosecutors hate it. By 1968, many courts had sought to curtail it by forbidding defense lawyers to inform juries that they had that power.  Obviously, a jury not informed about nullification may not know it can nullify, and for that reason alone may fail to do so, disabling the safety valve, to society’s detriment. Sachs and his team unfortunately prevailed on the 4th U.S. Circuit Court of Appeals to bless this unwise interference with the jurors’ right to know a legal principle vital to their deliberations.

Sachs has a point that jury nullification has occurred in defense of bad causes as well as good ones. But that has not happened, one suspects, nearly as often as laws that have lost their legitimacy have continued to be enforced, nor as often as legitimate laws are enforced in ways that nonetheless violate the conscience of the community. Misguided prosecutorial discretion is a much greater menace to us all than jury nullification.

In the background of the Catonsville case was the problem of standing, the power of the protestors, who were not personally being subjected to the draft or sent to war, to raise the possible illegality and the clear immorality of the Vietnam War as a defense. The biggest justification for a standing requirement is that a person not directly involved in a dispute may not have the motivation or facts to litigate it. But that only makes sense where someone else with a closer involvement is able to maintain the action. This was not the case with attempts to litigate the legitimacy of Vietnam; draftees who fought attempts to induct them personally were always prevented from litigating that point. In this context, attacks on draft boards, which violated other laws, as a way both to make a point and get into court, seemed like a reasonable alternative, even if the attacks were carried out by non-draftees.

Intelligent tactic

In any case, the absence of legal standing does not deprive an action of the status of civil disobedience, which is effectively what Sachs would make of it. (Sachs seems to consider himself qualified to say what was and was not civil disobedience, while exhibiting no awareness of the complex technical debates around the term.) He says the Nine did not engage in civil disobedience, by contrast with Thoreau, Gandhi, and King because, in part, the Nine did not face a “personal choice between the demands of government and the demands of conscience.” This is not completely accurate. To make their point, King and Gandhi broke laws they could have sidestepped, just as the Nine did.

Sachs also writes that “no law of doubtful validity was being applied to” the Nine – though it seems the laws protecting the property of the Catonsville draft board were, formally speaking, no more nor less valid than the tax law Thoreau violated, the public safety laws King violated or the sedition laws Gandhi violated. Anyway, formality aside, the validity of the laws was indeed doubtful – to the extent they were being used to support the Vietnam carnage.

Most especially, Sachs faults as both reprehensible and inconsistent with civil disobedience the Nine’s choice to seek exoneration via jury nullification. This criticism is the hardest to fathom. If, in 1968, judges were not going to address the war’s validity, it made good sense to turn to juries. The effort would have been pointless without the Nine’s seeking acquittal, because it could only be through jury nullification – and hence acquittal – that they could push aside the judicial roadblock to consideration of the basic question they wanted adjudicated. Seeking exoneration by a jury was an intelligent, if ultimately unsuccessful, tactic to bypass judicial intransigence.

Lack of self-doubt

Finally, as a stick to beat the Nine, Mr. Sachs trumpets the virtues of “self-doubt,” which he says the Nine lacked. If Mr. Sachs thinks self-doubt is so important, one wonders why none is displayed in his op-ed, even at a moment when the verdict of history seems to call into question how he exercised his prosecutorial discretion. Or is self-doubt only for defendants, and moral certainty reserved for prosecutors?

A U.S. attorney entertaining self-doubt might have considered legal philosopher Ronald Dworkin’s thoughts on civil disobedience published in June 1968, prompted precisely by draft protests: “A prosecutor may properly decide not to press charges … for dozens of … reasons…. One is the obvious reason that (draft protestors) act out of better motives than those who break the law out of greed or a desire to subvert government. Another is the practical reason that our society suffers a loss if it punishes a group that includes—as the group of draft dissenters does—some of its most thoughtful and loyal citizens.”

The Nine were thoughtful and loyal citizens (two were veterans, four were present or former clergy). Knowing that they would probably land in federal prison, they took concrete steps to halt a war machine that needed halting, and to enlist juries in the effort. For this, they deserve our respect.

Jack L.B. Gohn is partner emeritus with Gohn Hankey & Berlage LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com.


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