NEVILLE: 11 January 18 January 1971 KRONCKE & THERRIAULT,
Judge Phillip Neville exemplified a dissenting trend within the judiciary. He was a liberal Hubert Humphrey selection. Like many other judges, Neville's docket was jammed by draft related cases. Over 50% of all cases in the federal docket were draft related. He took the opportunity to make his own statement about the war by permitting the presentation of the "Defense of Necessity." Over the government's standing objection, Neville allowed Frank and Mike to call witnesses and forward evidence to support this Defense.
Devitt cornered Neville by delivering a maximum sentence of five years before Neville's trial opened.
"The Defense of Necessity." See, http://www.iejs.com/Law/Criminal_Law/defenses_of_necessity_and_choice.htm or do a Google Search. A major source is, "Since the right to command is required by the moral order and has its source in God, it follows that, if civil authorities legislate for or allow anything that is contrary to the will of God, neither the laws made nor the authorizations granted can be binding on the consciences of the citizens, since we must obey God rather than men. Otherwise, authority breaks down completely and results in shameful abuse.” Read several times during the trial, a quote from Pope John XXIII, Pacem in Terris, Part II, par. 51.
Simply, it is reasonable to assume that there are times when one law is violated by appeal to the mandates of a higher law. You can blow up a dam killing a thousand if it saves a million. Mutiny is often argued in this vein. Stealing a car to take a pregnant woman to emergency is another. There is, however, a very slippery slope aspect to this Defense. Bombers of abortion clinics have invoked its principles. "Weathermen" bombers of the Sixties - homegrown terrorists - also used it.
The 8 argued that the draft raids were non-violent acts of civil disobedience. That they were symbolic speech. That their objective was to call attention to the illegalities of an undeclared war and a Selective Service system which, itself, is unconstitutional. As non-violent civil disobedience activists, the 8 readily accepted the consequences of their actions. For example, Kroncke's Opening Argument began, "We did it. And I want to tell you why." So, what happened?
As with Devitt's trial so in his Instructions to the Jury, Neville stated that, "Everything which Mr. Kroncke and Mr. Therriault have said here for the last seven days is irrelevant and immaterial." In sum, the same result, but from a different process.
Neville did not allow the Defense of Necessity to be tried by the Jury. He stretched the law as far as he could, given his lights. He said, "Frank, I've given you your forum." Response, "Phillip, I wanted justice."
The point is that the 8 were not allowed to speak. We were not allowed to make our case to a jury of peers. What did the government fear?
Neville almost made judicial history. Almost. For the third trial had a week of witnesses. Scientists from the American Academy of Sciences who spoke and showed slides about the devastation of Agent Orange and other defoliants. Vietnam Veterans who recounted Search and Destroy Missions and the insanity of the war. Catholic priests and theologians who clearly laid out the Roman Catholic Church's ban on "Total War." And others, notably Daniel Ellsberg, who was trying to release the "Pentagon Papers" as evidence. What happened? By mistake (or so it appeared) the Clerk of the Court left the Roman Catholic "Documents of Vatican II" and Pope John XXIII's encyclical, "Pacem in Terris" ("Peace on Earth") in the evidence box! The jurors read these documents and were split 6-6. Nixon, et al., were aware of the trial because of Ellsberg's appearance. What would a re-trial have meant!
Neville re-asserted that, "You are not to read those documents. Everything which Mr. Kroncke has said or submitted as evidence is irrelevant and immaterial!" Within twenty-minutes, a verdict of guilty was announced. Several jurors contacted Mike Therriault and said that they either wanted the Defense to be judged and/or that they were going to find us not-guilty! But that Neville had given them no alternative.
Kroncke argued his appeal pro se. Tilsen argued Mike's. Charles Bisanz was Frank's consulting appellate lawyer. Their final decision was delayed six months. No one could figure out what was going on. Once out of prison, Kroncke met the clerk to the appellate court's head justice, Judge Heaney. She was influential in holding up a final decision as she and other, mostly younger attorneys, argued for returning the case to Neville for submittal of the Defense of Necessity to the jury. Appellate brief and articles.
ALERT! ALERT! ALERT! ALERT! ALERT!
The military Selective Service Draft has been activated!
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