Another crucial change since the Camden arrests: J. Edgar Hoover had died in May 1972. He had written memos pushing agents to solve the Media case nearly daily beginning the day after the burglary and continuing until the day before he died in his sleep. He continued to be eager for the Camden case to result in convictions for the twenty-eight defendants. He was confident that that would be the outcome despite a major obstacle to the case that arose in March 1972 and infuriated him.
That obstacle: Two months before Hoover died, the FBI lost its chief Camden witness, informer Robert Hardy.
At about the same time that FBI agents in Philadelphia followed instructions in December 1971 to destroy some of the files related to Hardy’s work as an informer, Hardy was thinking more deeply about the morality of what he had done for the FBI at Camden and how it would be used to prosecute the defendants. After he and his wife discussed the matter at length, he decided he needed to tell the truth: that the FBI had used him as a provocateur. He met with Father Doyle and Philadelphia attorney David Kairys to reveal his role. He told them he had decided to tell the truth because of Billy. It “is a matter of spirit to me,” Hardy told the two men. “It’s Billy living on. I want to do what’s right.”
In a step that became significant news and was profoundly important to the defendants, Hardy stated in an affidavit in March 1972 that, at the FBI’s request, he had become the leader of the Camden group, and in the process, he had become an agent provocateur. He said he had advised the group on how to break into the draft board office and taught them techniques they had not needed in earlier draft board raids and therefore did not know. His role was so significant, he said, that the burglary could not have happened without him. Furthermore, the FBI had paid for most of the tools used by the burglars to carry out the burglary and had even paid for the burglars’ groceries during the two months they prepared for the break-in—“right down to every potato chip.”
Hardy said his worries about the meaning of what he had done had started minutes after the Camden raid got under way. He was alone in his pickup truck, at a location agreed to by the burglars and known to the FBI. His truck was one of the blocking vehicles. He was assigned by the burglars to be ready to tell police he was having engine problems if an officer questioned him. He was assigned by the FBI to make sure he informed them about every move by the burglars. As he sat there, listening in on the conversations taking place among the burglars on their walkie-talkies, he realized as minutes passed that no arrests were taking place. He couldn’t understand why nothing was happening. The communication surveillance system the FBI had installed in his truck was only for one-way communication, so Hardy couldn’t use it to ask agents what had gone wrong. He was surprised because, he later said, he had been told repeatedly that “his friends” would never go to jail, that they would be arrested at the outset of the raid and charged with only minor crimes. “They reassured me, even up until the night of the break-in, that they would never go to jail. And, of course, they lied.”
As he sat in his truck faking that his truck was broken down, he realized that criminal charges were mounting the longer his friends were inside the draft board office removing and destroying files. But he couldn’t do anything. He felt helpless. “The next morning, I talked with my two agents, Mike and Terry. I said, ‘You guys really screwed us. You lied to me all the way through.’
“And that’s when Mike Ryman said, ‘Well, the decision was made at the little White House in California: John Mitchell, Mr. Hoover and Mr. Nixon, they made the decision to let these people break in and lock their butts up for as long as they could.’ ”
“I don’t say Terry Neist and Mike Ryman lied, but those who made the decision at the higher levels—their intention was to destroy the Catholic Left,” Hardy said.
From the start, what the FBI wanted from Hardy, he said, was “everything I could find out, particularly about Grady. He was their main target. They thought he did the Media raid.” They “asked me to find out who had done it.” He said he tried, but “that’s the one thing I could not get out of Grady, or anybody that worked with him.” Hardy thought that if he had found who burglarized Media, it would have been as important to the FBI “as finding out today where Jimmy Hoffa is buried.”
Hardy testified later that he did not agree with the defendants’ philosophy of breaking the law as a means of protest, but that he also came to disagree with the government’s use of illegal means to entrap the defendants.
After Hardy’s affidavit became public, and the bureau felt a deep frustration about this case that was supposed to end in triumph at Camden, an official at Washington headquarters, R. J. Gallagher, wrote a memorandum to other bureau officials at headquarters. It was a long lament about how much everything related to solving the Media burglary seemed to be going wrong at that point:
From the moment during June 1971, when we first became aware of the intended plan of John Peter Grady, avid revolutionary and Berrigan Brothers admirer, to mastermind a burglary of Federal space in the Camden, NJ, area, it was obvious as a result of our continuous investigation into the Media incident that both activities were inexorably entwined. Grady, who was eventually caught red handed with his associates as they broke into the Selective Service Office at Camden, New Jersey on August 22, 1971, has been identified through several sources and independent investigation as having masterminded the Media break-in [author’s note: an assertion that was fabricated either by FBI agents or by their sources, though in the end the bureau admitted it had no sources with direct knowledge about the burglary].
An all-out investigation was initiated immediately upon determining that our Media Resident Agency had been broken into.…The investigation from the outset was handicapped by the almost total lack of physical evidence. A thorough crime scene search was conducted followed by another search in order to insure that all possible evidence was brought to light.…
We have constantly attempted to develop new avenues of investigation aimed at developing evidence to support prosecution under Medburg. Supervisors responsible for Medburg and the Camden action have on a regular basis reviewed and double checked all aspects of the investigation.
Recognizing many of the Grady group in the Camden action were responsible for the Media burglary, we have continually, through regular contacts with the U.S. Attorney’s office, Camden, NJ, and the Internal Security Division, pressed for early prosecution in the Camden action. In spite of our pressure … the Camden Action prosecution is still pending. No trial date has been set.…Now possibly due to some extent to the delay in prosecution, Robert Hardy, the informant in the Camden break-in, has soured and has given an affidavit to the defense indicating the break-in was financed to a large extent by the FBI and that he, as an FBI informant, was instrumental in revitalizing the planned break-in which was doomed to failure because of disorganization and ineptness on the part of Grady and his group.
Hardy’s allegations are false, and Newark and Philadelphia agents involved are analyzing same and submitting affidavits.
No such affidavits were submitted by agents or FBI officials.
AS THE CAMDEN TRIAL got under way in the courtroom of a Nixon-appointed judge, Clarkson Fisher, on the surface it looked like it might be a typical antiwar trial of that era where judges, fearing defendants would create a disruptive atmosphere, took steps to prevent such behavior. Known as a tough, pro-prosecution judge, Judge Fisher ruled in favor of the government in nearly every pretrial motion, even refusing to order the government to provide the defendants with the reports based on Hardy’s meetings with his FBI supervising agents.
Fairly early in the trial there were signs that he might not be as inflexible as he appeared at first. In a significant decision, he ruled that the defendants and their lawyers could be “cocounsel”—a ruling that meant all defendants and defense lawyers would be permitted to actively participate in the trial. The right to self-representation was often recognized by judges, but the right of defendants to be c
ocounsel, as lawyers are, was unusual, if not unheard of. Judge Fisher also granted the defendants’ unusual request that jurors be permitted to ask questions of witnesses. He even had no problem when defendant Paul Couming arrived in court with pads and pencils the day after that permission was granted and asked to distribute them to jurors so they could write questions. The judge said he could. In the course of the trial, every juror asked questions.
The judge seemed to recognize early in the five-month trial that these defendants—whose courtroom dress ranged from blue jeans, dashiki, suit and tie, skirt and sweater to clerical black—treated him and the trial proceedings with respect and were unlikely to cause the disruptions he had feared. The judge in turn went out of his way to be respectful to the participants. According to an FBI report, early in the trial Judge Fisher invited one of the government’s witnesses, Joseph E. Ziel of the FBI’s Newark field office, to his chambers after he was cross-examined for five and a half days by sixteen defendants and three defense lawyers. He told Ziel he had been a “magnificent witness.” Much later in the trial, the judge told Robert Good, one of the defendants, in his chambers that he was going to have a very hard time if Good was convicted. He also told Good that he regretted he knew so little about the Vietnam War, and now, inspired by the defendants and their witnesses, was studying the war.
In contrast, at the same time these convivial exchanges were taking place with the Camden judge, the MEDBURG investigative record documents that the FBI agents assigned to assist prosecutors at the trial sent an “all offices expedite” message to FBI offices around the country asking them to “furnish any derogatory information … to discredit … witnesses.” The New York field office, for instance, was asked to check whether its records included documentation that historian Howard Zinn, a defense witness at Camden, had attended the 1948 New York State Communist Party convention. One of the Camden prosecutors later told me the derogatory information about defense witnesses collected by the agents and presented to prosecutors was obnoxious and irrelevant.
At the outset of the trial, for more than two months a parade of FBI agents testified about the details of what had happened at Camden. In cross-examination, defense attorney David Kairys pushed FBI agents on why they did not prevent the crime from taking place. Given the overwhelming manpower they had, it would have been easy to have prevented the destruction of government property, the crime for which the defendants were now being tried. Why did agents wait hours to arrest? They said they didn’t know where all the burglars were, and for safety reasons delayed arrests until they could locate everyone. That answer was not believable, for it was clear that thanks to Hardy’s detailed reports, agents knew in advance exactly where every burglar was and also had the benefit of listening to their conversations at the time. Each agent was asked by defense attorneys if he had taken any step at any time while he was attached to the investigation to prevent the crime. Each said he had not. None of them testified to what the investigative file attests: The agents expected to arrest the defendants before they destroyed property, but were prevented from doing so by orders issued from FBI headquarters in Washington—the orders that Hardy said he was told originated with the attorney general and the president.
On the witness stand, Hardy testified for the defense. Frank Donner, the expert on political surveillance, was in court to observe this historic occasion: the first time in U.S. history that a government informer was a witness for the defense rather than for the government. Hardy described the details of his role as planner, morale booster, creator of schematic drawings of the office where the break-in would occur, and supplier of tools and food at FBI expense. There were numerous dramatic moments in Hardy’s testimony. Perhaps the most powerful were his responses to Kairys’s questions about the tools used during the break-in. Kairys says he had “thought a lot about how I could most convincingly bring home to the jurors what Hardy and the FBI had done.” He did it with vivid visual elements.
“Mr. Hardy,” he began, “I have in front of me all of the tools that the defendants were caught with inside the draft board. These are the burglars’ tools the FBI agents testified were used to break into the draft board office in the middle of the night. I’m going to show you each one and ask you where it came from and who paid for it. Then I’m going to make two piles with these items on the floor directly in front of the jury. One pile will be items you or the FBI provided or paid for; the other will be items the defendants provided or paid for. Include in the second pile—the defendants’ pile—items that you are uncertain about or that you can’t say for sure were provided by you or the FBI.”
“Okay,” said Hardy.
“One thing before we start. Your own personal tools that you gave to the defendants, were you reimbursed for them?”
“Yes, I was reimbursed for anything at all that I provided.”
“So if you say an item was from your shop and you provided it to the defendants, that also means the FBI reimbursed you and paid for it?”
“That’s right.”
“Okay. Exhibit G-11. What is this?”
“These are bolt cutters. I bought them.”
“You bought them for the defendants to use, and the FBI reimbursed you, so these go in the FBI pile?”
“Right.”
“How about these three screwdrivers, Exhibits G-608, 609, and 604?”
“The black-handled one, 604, is my own personal screwdriver. The other two were bought.”
“So the FBI pile. How about G-615?”
“These are utility knives, several of them. One was mine, and the others were bought.”
“And this, G-610?”
“It’s a plumb hammer. That was bought.”
“G-659?”
“This is duct tape that we used from the fifth-floor fire escape to tape over the glass before we drilled it and broke it out. This is my personal tape.”
“G-707, 102, and 104?”
“Walkie-talkies. These I purchased, and the FBI paid me.”
“Okay, D-101?”
“A prying tool. Purchased.”
“D-111?”
“Two drill bits for glass. I didn’t buy these. I told them what to get and where to get it, but I think they paid.”
“D-103?”
“A portable drill. That isn’t mine, but I gave it to them.”
“How about D-100?”
“This is my rope, a long rope.”
When Kairys finished questioning Hardy, the attorney recalls, there were two distinctly different piles. “The FBI pile had a large number and variety of tools and equipment, covering a large portion of the rug in front of the jury. The defendants’ pile had two drill bits, a small flat piece of metal, and a small V-8 juice can.”
Kairys had one more question for Hardy. He walked to the piles on the floor and picked up Exhibit D-103 and said, “Mr. Hardy, this portable drill you had me put in the FBI pile, whose is it?”
“That drill belongs to an FBI agent.”
“An FBI agent. How did it get here?”
“My plan required one of those new kind of drills, portable, run by battery, but I couldn’t find one in stores around here. The group had waited for me to get them one. A few days before the raid, I called my FBI guys and told them I had to have a portable drill right away or the action would be called off. They told me to meet later that day at a parking lot we used in Merchantville. My lead control agent, Mike Ryman, met me there. I asked him where he got the portable drill. He said one of the FBI agents in the office had one in his personal shop. That agent went home to get it so Agent Ryman could give it to me and I could give it to the defendants.”
After that testimony, there was little doubt about whether the FBI had taken steps to make sure this crime happened.
The prosecution made no attempt to rebut Hardy’s testimony.
When the defendants met shortly after their arrest to discuss trial strategy, there was disagreement on whether they would claim they had been entrappe
d by Hardy. Pride prevented some of them from acknowledging that they had depended on him. When Kairys first brought up Hardy’s role with Grady, he said, “Nah, he was nothing. He’s a blowhard. You know, hundreds of draft boards have been raided. We didn’t need him.”
The defendants who shared Grady’s opinion wanted to rely on jury nullification—ask the jury to refuse to convict them because the defendants had engaged in civil disobedience—broken the law—in order to protest the Vietnam War and to take a stand to preserve life rather than cause death. Kairys and the other two lawyers working with the defendants, Marty Stoler and Carl Broge, respected the rich history of jury nullification as it had been used throughout American history to fight unjust laws.
In the end, the defendants agreed to meld two defenses—jury nullification and a defense based on a legal theory that the government had overreached in its effort to make sure the crime took place. That combination of approaches was carried out in a rare collaboration between attorneys and defendants.
Judge Fisher permitted the defendants to explain how their opposition to the war had caused them to commit an act of resistance. He also permitted them to call as witnesses a wide range of people who supported resistance to the war, including both Daniel and Philip Berrigan. One by one, defense witnesses spoke of resistance to the government’s war policy as an admired virtue central to an understanding of American history and to maintaining a just society. One of the most surprising witnesses was Major Clement St. Martin, the commander of the New Jersey State induction center in Newark from 1968 to 1971. Files under his control had been destroyed by the defendants. Nevertheless, he testified in their defense. He said he had become completely frustrated after years of making futile complaints through appropriate channels about the gross corruption in the way the draft forced the sons of the poor to serve in Vietnam and released the sons of the rich and sons of state and federal officials from service. His frustrations had grown particularly deep, he testified, in 1969 when a “very high” Selective Service official, responding to complaints filed by the major, told him, “Mind your business. We have twenty million animals to choose from.”
The Burglary Page 41
