473 F.2d 1113 (1972)

[Edited for course use.]

JUDGES: Bazelon, Chief Judge, Leventhal, Circuit Judge, and Adams, * Circuit Judge, United States Court of Appeals for the Third Circuit. Bazelon, Chief Judge, concurring in part and dissenting in part.

* Sitting by designation pursuant to 28 U.S.C. 291(a) (1970).

OPINION:  [*1116]  LEVENTHAL, Circuit Judge:

Seven of the so-called "D.C. Nine" bring this joint appeal from convictions arising out of their unconsented entry into the Washington offices of the Dow Chemical Company, and their destruction  [*1117]  of certain property therein. Appellants, along with two other defendants who subsequently entered pleas of nolo contendere, were tried before District Judge John H. Pratt and a jury on a three count indictment alleging, as to each defendant, one count of second degree burglary, and two counts of malicious destruction of property valued in excess of $100. On February 11, 1970, after a six-day trial, the seven were each convicted of two counts of malicious destruction. The jury acquitted on the burglary charges but convicted on the lesser-included offense of unlawful entry. . . .

Appellants urge three grounds for reversal as follows: (1) The trial judge erred in denying defendants' timely motions to dispense with counsel and represent themselves. (2) The judge erroneously refused to instruct the jury of [**3]  its right to acquit appellants without regard to the law and the evidence, and refused to permit appellants to argue that issue to the jury. (3) The instructions actually given by the court coerced the jury into delivering a verdict of guilty. On the basis of defendants' first contention we reverse and remand for new trial. To provide an appropriate mandate governing the new trial, we consider the second and third contentions, and conclude that these cannot be accepted.

I. The Record in District Court

The undisputed evidence showed that on Saturday, March 22, 1969, appellants broke into the locked fourth floor Dow offices at 1030 - 15th Street, N.W., Washington, D.C., threw papers and documents about the office and into the street below, vandalized office furniture and equipment, and defaced the premises by spilling about a blood-like substance. The prosecution proved its case through Dow employees who testified as to the lack of permission and extent of damage, members of the news media who had been summoned to the scene by the appellants and who witnessed the destruction while recording it photographically, and police officers who arrested appellants on the scene.

Initially,  [**4]  the court appointed separate counsel for each defendant. Following their arraignment on June 20, 1969, all save appellant Robert Begin elected interim joint representation by Philip Hirschkop, Addison Bowman and Caroline Nickerson. Mr. Begin was represented by Edward Bennett Williams. All attorneys were court-appointed.

At the pre-trial conference held on January 29, 1970, in his chambers, Judge Pratt indicated he had received a letter from Mr. Hirschkop to the effect that appellants JoAnn Malone, Arthur Melville, and Joseph O'Rourke no longer wished to be represented by counsel. On his own behalf, appellant Begin had written the Court requesting that the appointment of Mr. Williams be terminated, and that he be permitted a pro se defense. Judge Pratt deferred a ruling on the pro se motions in order to give the matter further consideration, observing that to waive counsel 

is not quite as easy as merely getting up and saying that you want to represent yourself. You've got the matter of the waiver being knowing and intelligent, and we are going to take testimony on that; and furthermore, the possibility of prejudice, not only  [*1118]  to themselves but also to [**5]  their co-defendants. (Tr. 3)

Later in the conference he indicated how important he felt the lawyer's role was likely to be in achieving tranquility at trial: 

Let me emphasize as strongly as I can that the way this case is handled is presumably my responsibility, but the decorum in the courtroom -- I'm talking particularly about the defendants themselves -- will be affected to a great degree by the advice and example that they get from their own lawyers. (Tr.14).
The day before, it seems, Judge Pratt had attended a seminar on the problems of disruption encountered in multi-defendant trials, and he was concerned that "there have been rumors that maybe some disruptive tactics are going to be employed." (Tr. 15, 17 n4). Defense counsel assured him that they knew of no such rumors and that they anticipated no disruptive behavior. In any event, Judge Pratt scheduled a hearing for February 3, 1970, on the four defendants' requests as a matter preliminary to the trial.

At a "supplementary" conference the next day, January 30, the Judge acceded to Mr. Williams's request that his associate, William McDaniels, be substituted as Begin's counsel of record. Mr. Williams's request stemmed from statements of emphatic, indeed vitriolic, dissatisfaction with Mr. Williams's representation contained in Begin's motion for a pro se defense.

At the February 3, 1970, hearing on the pro se motions, the four original movants were joined by appellant Dougherty. For approximately three-quarters of an hour the court heard from the five defendants and from their lawyers. The judge showed particular interest in the defendants' education, and specifically whether any of the five had had formal legal training. None had, although appellant Begin asserted he had "taken pains to familiarize (himself) with courtroom procedure." In general, the testimony showed that the five movants were quite articulate and highly educated. It also appeared that all five movants -- indeed all defendants save appellant Slaski -- were associated with a religious order, either at that time or in the recent past and, in varying degrees, had been active in work among the poor and underprivileged,  [**7]  in this country and in Latin America.

After a brief recess, the court denied defendants' motions in an oral opinion, set forth in the margin. n5 The judge indicated  [*1119]  that he was not troubled by defendants' general educational background, nor, importantly, by their motivation. However, he emphasized their lack of formal legal training, the multidefendant context of the trial, and the seriousness of the charges. The interplay of those factors he felt created too great a risk of disruption of the trial, and risk of jury prejudice against movants and their co-defendants. After the judge delivered his ruling, there was some confused interchange between the court, counsel and several defendants. At Mr. Hirschkop's request, court was recessed in order that counsel and defendants could determine how to proceed in light of the judge's ruling.

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n5 The opinion appears at Tr. 33-35: 
The defendants are charged in Count One, with burglary in the second degree. And in Counts Two and Three, with destroying private property. These charges are serious. The accumulative possible punishment which could be imposed on each of these defendants could total as much as 35 years imprisonment, and also, a fine.

This Court conducted an examination of the moving defendants. There is no doubt that they are well educated people, and as far as the Court is concerned, there is no question about the matter of their motivation.

However, they have indicated that none of them have ever studied common law, and they indicated their unfamiliarity with the essential rules of evidence and procedure.

Although it is expected that they will desire to consult with counsel before and during trial, this Court is under the opinion that such consultation would be inadequate under the circumstances in this case.

A large number of defendants are involved here. Examination, cross-examination and objections made by five persons, totally unfamiliar with the rules of evidence and procedure, might not only disrupt the proceedings, it might also prejudice the jury and jeopardize the rights of their co-defendants.

The right of a defendant to appear pro se in a criminal matter, cannot be isolated from the other elements of the fair and orderly administration of justice. [The judge cited United States v. Davis, 260 F. Supp. 1009 (M.D.Tenn. 1966); United States v. Bentvena, 319 F.2d 916 (2d Cir.), cert. denied, 375 U.S. 940, 84 S. Ct. 345, 11 L. Ed. 2d 271 (1963).] The right of a defendant to appear pro se, despite the language of the Constitution, despite the language of the applicable statute, and despite Rule 44 of the Criminal Rules, may be denied when the trial court finds the defendants rights should [sic] not be sufficiently protected if he appeared on his own behalf. [Citing United States v. Davis, supra; United States v. Jones, 369 F.2d 217 (7th Cir. 1966), cert. denied, 386 U.S. 944, 87 S. Ct. 976, 17 L. Ed. 2d 875 (1967).] The right to appear pro se may also be denied when the trial court finds that this allowance would be likely to disrupt the proceedings. [Citing United States v. Private Brands, Inc., 250 F.2d 554 (2d Cir. 1957); United States v. Mitchell, 138 F.2d 831 (2d Cir.), cert. denied, 321 U.S. 794, 64 S. Ct. 785, 88 L. Ed. 1083 (1943); Overholser v. DeMarcos, 80 U.S. App. D.C. 91, 149 F.2d 23, cert. denied, 325 U.S. 889, 65 S. Ct. 1579, 89 L. Ed. 2002 (1945).]

The Seventh Circuit Court of Appeals has specifically held, that a criminal defendant is denied his constitutional rights if he objects to appointment of competent counsel, where such defendant is without counsel. [Citing United States v. Jones, supra.]

After carefully weighing all the factors in this case, this Court concludes that in order to insure a fair and impartial trial, all defendants must be represented by counsel.
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When court reconvened after lunch, all defendants were present and a panel of prospective jurors sat in the rear of the courtroom. At that time the remaining four defendants, Catherine Melville, Dennis Moloney, Michael Slaski and Bernard Meyer, made oral motions to represent themselves. These new motions were prompted in large part by the judge's earlier emphasis on prejudice to co-defendants with counsel as a ground for denying the original motions. After some discussion between the court and the defendants, out of the presence of the veniremen, the judge, treating the four new motions as timely made, formally denied them for the reasons given in his oral opinion.

Some collateral matters were then disposed of, including a request -- denied -- by Mr. Hirschkop that Judge Pratt disqualify himself. When the court began its voir dire examination of prospective jurors, there was some dispute about the judge's decision to question the jurors himself rather than to follow the procedure of examination by counsel, but appellants do not bring that issue into this appeal. Similarly, appellants do not complain of the presence or absence of certain questions for the prospective jurors, about [**9]  which there was controversy at the time.

Selection of the jury was reasonably rapid, requiring only a part of the afternoon of Feb. 3 and part of the next morning. As noted, the court conducted the voir dire. Defendants were, however, permitted to exercise their peremptory challenges in propria persona.

The trial formally began on the afternoon of February 4. Judge Pratt required that motions, objections, and examination of witnesses be made through counsel. He did, however, agree to permit each defendant to make a five minute opening statement and to testify, in narrative form, at reasonable length without a specific time limit. After the prosecution's opening statement, Mr. Hirschkop made a brief statement on behalf of all defendants. Then five of the defendants -- including appellants  [*1120]  Dougherty, Begin and Arthur Melville -- made opening statements.

The prosecution's case was completed by the end of the next day, February 5. Prior to the opening of the defense case, defendants Catherine Melville and Bernard Meyer entered pleas of nolo contendere to one count of malicious destruction of property; the remaining charges were dismissed; and they are not before [**10]  us on this appeal.

On Friday, February 6, after an opening statement by Mr. Bowman, appellants O'Rourke and Malone made opening statements on their own behalf, as the other defendants had done prior to the Government's case. They directed their remarks, as had the others, to an attack on the role of Dow Chemical Company and other unspecified corporations in supporting American military efforts in the Vietnam War. When Sister Malone referred to Vietnam, Judge Pratt interjected: "the war in Vietnam is not an issue in this case." A disruption ensued. Events happened too quickly for the court reporter to provide a complete record. The court later inserted this description of what happened, Supplement to Transcript, p. 595: 

The record being unclear as to what transpired in the courtroom shortly before the Court adjourned Friday, February 6, 1970, the following is a recital of those events.

Defendant JoAnn Malone, while making her opening statement, referred to the Vietnam War. (T. 594) The Court ruled that "the War in Vietnam is not an issue in this case." (T. 594) Defendant Arthur Melville rose to object and was ordered by the Court to be seated. Defendant Michael Slaski also [**11]  objected and when he failed to obey the Court's order to be seated, the Marshals were ordered to seat him. (T. 595) While this was taking place, two spectators in the rear of the courtroom then stood and shouted to the bench concerning the relevancy of the War in the case on trial. Marshals moved to eject these two persons. The first was removed without incident. While the second was being ejected with some difficulty, a woman member of the DC-Nine Defense Committee seated in the front row in back of the defendants rose and ran to the back of the courtroom to impede the Marshals and assist the two spectators being removed. When the Marshals resisted her, she screamed at them. Defendant Michael Slaski then wrestled free from the Marshals who were attempting to seat him, hurdled the rail and engaged in an altercation with the Marshals at the rear of the courtroom. During these events the jury was ushered from the courtroom. The Court ordered the courtroom cleared and took a recess. It is reported that the fighting involving defendant Slaski ceased after two or three minutes and the Marshals began clearing the courtroom amid shouts of "pigs" and obscenities. Loud shouting occurred during [**12]  the entire incident. A number of spectators refused to leave the courtroom and had to be ejected forcibly. The Court returned after the courtroom had been cleared and the press, counsel and the defendants had been readmitted. The jury was recalled, admonished to disregard what it had seen, and sent home. The Court then adjourned until Monday, February 9, 1970.

When the trial resumed on Monday, February 9, defendant Slaski was cited for contempt for his role in the disturbances and the judge sternly admonished the spectators and remaining defendants against further outbreaks. Appellants Slaski and Moloney did not make opening statements. After appellant Malone finished her statement, the case for the defense began. It consisted entirely of defendants' testimony. Appellants Arthur Melville, O'Rourke, Malone and Begin testified. During the testimony there were several further disruptions requiring a brief recess at one point and ejection of a spectator from the courtroom  [*1121]  at another. n6 The judge confined closing argument to counsel. He instructed the jury on the three counts of each indictment as well as on the lesser-included offense of unlawful entry under the [**13]  burglary count. He refused to instruct the jury that it could disregard the law as he gave it to them, and refused to instruct the jury that "moral compulsion" or "choice of the lesser evil" constituted a legal defense.
II. The Right of Pro Se Representation

In defendants' view, Judge Pratt violated their constitutional and statutory rights when he refused to permit them to represent themselves. They say the right to dispense with counsel is correlative to the guarantee of the right to counsel and is therefore "implicit" in the Sixth Amendment. They rely as well on 28 U.S.C. 1654 [**14]  which provides: 

In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.
The Government responds that a defendant's right to represent himself is not protected by the Sixth Amendment but only exists by virtue of 1654, and that this is significant (a) because statutory rights are generally subject to the "harmless error" principle, and (b) 1654 rights can be limited when, in the judge's view, they would be likely to lead to disruption of the trial or threaten to interfere with effective presentation of the defendant's case. . . .
III. The Issue of Jury Nullification

Our reference to the "intensity" factor underlying the pro se right should not be understood as embracing the principle of "nullification" proffered by appellants. They say that the jury has a well-recognized prerogative to disregard the instructions of the court even as to matters of law, and that they accordingly have the legal right that the jury be informed of its power. We turn to this matter in order to define the nature of the new trial permitted by our mandate.

There has evolved in the Anglo-American system an undoubted jury prerogative-in-fact, derived from its power to bring in a general verdict of not guilty in a criminal case, that is not reversible by the court. The power of the courts to punish jurors for corrupt or incorrect verdicts, which persisted after the medieval system of attaint by another jury became obsolete, was repudiated in 1670 when Bushell's Case discharged the jurors who had acquitted William Penn of unlawful assembly. Juries in civil cases became subject to the control of ordering a new trial; no comparable control evolved for acquittals in criminal cases.

The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge. Most often commended are the 18th century acquittal of Peter Zenger of seditious libel, on the plea of Andrew Hamilton, and the 19th century acquittals in prosecutions under the fugitive slave law. The values involved drop a notch when the liberty vindicated by the verdict relates to the defendant's shooting of his wife's paramour, or purchase during Prohibition of alcoholic beverages.

Even the notable Dean Pound commented in 1910 on positive aspects of "such jury lawlessness." n32 These observations of history and philosophy are underscored and illuminated, in terms of the current place of the jury in the American system of justice, by the empirical information and critical insights and [**47]  analyses blended so felicitously in H. Kalven and H. Zeisel, The American Jury. n33

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n32 See R. Pound, Law in Books and Law in Action, 44 Am. L.Rev. 12, 18 (1910): "Jury lawlessness is the greatest corrective of law in its actual administration. The will of the state at large imposed on a reluctant community, the will of a majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly confronted kings and ministers." Pound comments that the law as written, and invoked by prosecutors, "demands conviction of persons whom local or even general opinion does not desire to punish," and adds that "the law is often too mechanical at a point requiring nicety of adjustment."

n33 (Pub. Little, Brown 1966). The study of the American jury system, undertaken at the University of Chicago Law School, is a composite analysis of 3576 criminal jury trials, with particular focus on the 1063 instances where the judge reported that he disagreed with the jury verdict, and why. Half these cases present an apparent difference between judge and jury on "sentiments on the law."

The study supports in depth the conclusion that the jury is likely to call on its prerogative of lenity and equity, contrary to the judge's instruction, when the case is one where it can empathize with the defendant, feeling either that the jurors might well have been or come to be in the same position, or that in the large the defendant's conduct is not so contrary to general conduct standards as to be condemned as criminally deviate conduct. From a study teeming with illustrations, the following are cited as examples.

The authors broadly discern that "in cases having a de minimis cast or a note of contributory fault or provocation * * * the jury will exercise its de facto powers to write these equities into the criminal law" (p. 285) and "an impatience with the nicety of the law's boundaries hedging the privilege of self-defense" (p. 241). (E.g., acquittal for retaliation following assaults, or even harassment and provocation, without present danger; for violence erupting after domestic strife, or unfaithfulness of spouse; for fraud of a victim still the seller's friend; for statutory rape of a girl unchaste; for sale of liquor to a minor who is a member of the armed forces).

Perhaps most relevant is ch. 19 on Unpopular Laws, p. 286 et seq. Though the authors discerned no law prompting a jury revolt comparable to the historic acquittals on charges of violation of seditious libel or fugitive slave laws, or even Prohibition, the data indicate that the historic role of the jury as a bulwark against official tyranny is "dimly evident in its contemporary role as a moderate corrective against undue prosecutions for gambling, game and liquor violations and, to some extent, drunken driving" (p. 296), the jury's traditional hostility to sumptuary legislation being "keyed to its perception that . . . widespread violation is tolerated" so that prosecution of a particular defendant is contrary to the principle of evenhanded justice (p. 287). And so in some counties "people generally do not like the game law" (p. 288). In counties where jurors play the numbers they acquit broadly in gambling cases (p. 289) etc. When the jurors "feel the same thing could happen to them," they will acquit even of negligent manslaughter charges, as in running a red light, though there are more convictions in cases involving extreme speed. (Ch. 24).

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 [*1131]  Reflective opinions upholding the necessity for the jury as a protection against arbitrary action, such as prosecutorial abuse of power, stress fundamental features like the jury "common sense judgment" and assurance of "community participation in the determination of guilt or innocence." n34 Human frailty  [*1132]  being what it is, a prosecutor disposed by unworthy motives could likely establish some basis in fact for bringing charges against anyone he wants to book, but the jury system operates in fact, (see note 33) so that the jury will not convict when they empathize with the defendant, as when the offense is one they see themselves as likely to commit, or consider generally acceptable or condonable under the mores of the community.

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n34 See Duncan v. Louisiana, 391 U.S. 145, 156, 88 S. Ct. 1444, 1451, 20 L. Ed. 2d 491 (1968):
Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power -- a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.
Williams v. Florida, 399 U.S. 78, 100, 90 S. Ct. 1893, 1906, 26 L. Ed. 2d 446 (1970):
"The essential feature of a jury obviously lies in the interposition between the accused and his accuser of the common sense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence."
See Judge Learned Hand in United States ex rel. McCann v. Adams, 126 F.2d 774, 775-776 (2d Cir. 1942):
The institution of trial by jury -- especially in criminal cases -- has its hold upon public favor chiefly for two reasons. The individual can forfeit his liberty -- to say nothing of his life -- only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came. Moreover, since if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove; and this introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions.

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The existence of an unreviewable and unreversible power in the jury, to acquit in disregard of the instructions on the law given by the trial judge, has for many years co-existed with legal practice and precedent upholding instructions to the jury that they are required to follow the instructions of the court on all matters of law. There were different soundings in colonial days and the early days of our Republic. We are aware of the number and variety of expressions at that time from respected sources -- John Adams; Alexander Hamilton; prominent judges -- that jurors had a duty to find a verdict according to their own conscience, though in opposition to the direction of the court; that their power signified a right; that they were judges both of law and of fact in a criminal case, and not bound by the opinion of the court.

The rulings did not run all one way, but rather precipitated "a number of classic exchanges on [**50]  the freedom and obligations of the criminal jury." n36 This was, indeed, one of the points of clash between the contending forces staking out the direction of the government of the newly established Republic, a direction resolved in political terms by reforming but sustaining the status of the courts, without radical change. n37 As the distrust of judges appointed and removable by the king receded, there came increasing acceptance that under a republic the protection of citizens lay not in recognizing the right of each jury to make its own law, but in following democratic processes for changing the law.

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n37 A. Ellis, the Jeffersonian Crisis (Oxford Press, 1971) passim, and see Ch. XIII.

The articles of impeachment of Justice Chase included charges that he had failed to instruct juries on their power to disregard the judge's instructions. His vigorous defense of his course was in terms like those later developed by Justice Story in United States v. Battiste, see infra. On this, as on other articles, the radical Republicans were defeated. Evans, Report of the Trial of the Hon. Samuel Chase.

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The crucial legal ruling came in United States v. Battiste, 2 Sum. 240, 24 F. Cas. 1042 (C.C.D.Mass. 1835). Justice Story's strong opinion supported the conception that the jury's function lay in accepting the law given to it by the court and applying that law to the facts. This considered ruling of an influential jurist won increasing acceptance in the nation. The youthful passion for independence accommodated itself to the reality that the former rebels were now in control of their own destiny, that the practical needs of stability and sound growth outweighed the abstraction of centrifugal philosophy, and that the judges in the courts, were not the colonial appointees projecting royalist patronage and influence but were themselves part and parcel of the nation's intellectual mainstream, subject to the checks of the common law tradition and professional opinion, and capable, in Roscoe Pound's words, of providing "true judicial justice" standing in contrast with the colonial experience. n38

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n38 See IV Pound, Jurisprudence (West Pub. Co. 1959) pp. 8-9. 

Fear of arbitrary judicial action . . . was especially strong in the United States because in seventeenth century England (the time of colonizing America) the criminal law, in the hands of appointees of the crown subject to arbitrary removal, had been found an effective agent of political and religious persecution. . . . Colonial justice was long executive or legislative. There had been but little experience of true judicial justice with the checks upon judicial action which the common law tradition and pressure of professional opinion provided.

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 [*1133]  The tide was turned by Battiste, but there were cross-currents. At mid-century the country was still influenced by the precepts of Jacksonian democracy, which spurred demands for direct selection of judges by the people through elections, and distrust of the judge-made common law which enhanced the movement for codification reform. But by the end of the century, even the most prominent state landmarks had been toppled; n39 and the Supreme Court settled the matter for the Federal courts in Sparf v. United States, 156 U.S. 51, 102, 15 S. Ct. 273, 39 L. Ed. 343 (1895) after exhaustive review in both majority and dissenting opinions. The jury's role was respected as significant and wholesome, but it was not to be given instructions that articulated a right to do whatever it willed. The old rule survives today only as a singular relic. n40

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n39 See e.g., State v. Burpee, 65 Vt. 1, 34-35, 25 A. 964, 974 (1892), overruling State v. Croteau, 23 Vt. 14 (1849). In State v. Wilkinson, 2 Vt. 480, 531-532 (1829), the court had laid down that although the principle that the jury is to determine the law in criminal cases represents a departure from "logical symmetry," it is a safeguard against tyranny in the law, and one of the law's "great landmarks" for all who view "liberty and law as almost synonymous." [**53] 
n40 Wyley v. Warden, 372 F.2d 742 (4th Cir. 1967), cert. denied, 389 U.S. 863, 88 S. Ct. 121, 19 L. Ed. 2d 131 (1967). In holding the provision of the Maryland Constitution consistent with the Federal Constitution, Judge Sobeloff noted that "a practice may be deemed unwise, yet not be unconstitutional." He referred to the "potent and persuasive arguments . . leveled against the wisdom of the Maryland practice," and the various jurists' analyses condemning it as "archaic, outmoded and atrocious," "unique and indefensible," an "antique constitutional thorn" in "the flesh of Maryland's body of Criminal Law."

In Maryland the juries must be told the judge's instructions on the law are only "advisory". In Indiana, a similar constitutional provision was attenuated by a decision that a trial court in a criminal case "is not required to neutralize the effect of its instructions by telling the jury that they are at liberty to disregard them, and to decide the law for themselves." Bridgewater v. State, 153 Ind. 560, 566, 55 N.E. 737, 739 (1889).
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The breadth of [**54]  the continuing prerogative of the jury, however, perseveres, as appears from the rulings permitting inconsistent verdicts. These reflect, in the words of Justice Holmes, an acknowledgment that "the jury has the power to bring in a verdict in the teeth of both law and facts," n41 or as Judge Learned Hand said: "We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity." n42

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n41 Horning v. District of Columbia, 254 U.S. 135, 138, 41 S. Ct. 53, 54, 65 L. Ed. 185 (1920) (jury power to render illogical and inconsistent verdicts).

n42 Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1920).

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Since the jury's prerogative of lenity, again in Learned Hand's words (supra, note 34) introduces a "slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions," it is only just, say appellants, that the jurors be so told. It is unjust to withhold [**55]  information on the jury power of "nullification," since conscientious jurors may come, ironically, to abide by their oath as jurors to render verdicts offensive to their individual conscience, to defer to an assumption of necessity that is contrary to reality.

This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy. This is the concern voiced by Judge Sobeloff in United States v. Moylan, 417 F.2d 1002, 1009 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S. Ct. 908, 25 L. Ed. 2d 91 (1970):

To encourage individuals to make their own determinations as to which laws they will obey and which they  [*1134]  will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic.

The statement that avowal of the jury's prerogative runs the risk of anarchy, represents, in all likelihood, the habit of thought of philosophy and logic, rather than the prediction of the social scientist. But if the statement contains an element of hyperbole, the existence of risk and danger, of significant magnitude, cannot be gainsaid. In contrast, the advocates of jury "nullification" apparently assume that the articulation of the jury's power will not extend its use or extent, or will not do so significantly or obnoxiously. Can this assumption fairly be made? We know that a posted limit of 60 m.p.h. produces factual speeds 10 or even 15 miles greater, with an understanding all around that some "tolerance" is acceptable to the authorities, assuming conditions warrant. But can it be supposed that the speeds would stay substantially the same if the speed limit were put: Drive as fast as you think appropriate, without the posted limit as an anchor, a point of departure?

Our jury system is a resultant of many vectors, some explicit, and some rooted in tradition, continuity and general understanding without express formulation. A constitution may be meaningful though it is unwritten, as the British have proved for 900 years.

The jury system has worked out reasonably [**57]  well overall, providing "play in the joints" that imparts flexibility and avoid undue rigidity. An equilibrium has evolved -- an often marvelous balance -- with the jury acting as a "safety valve" for exceptional cases, without being a wildcat or runaway institution. There is reason to believe that the simultaneous achievement of modest jury equity and avoidance of intolerable caprice depends on formal instructions that do not expressly delineate a jury charter to carve out its own rules of law. n43 We have taken due and wry note that those whose writings n44 acclaim and invoke Roscoe Pound's 1910 recognition of the value of the jury as safety valve, omit mention of the fact that in the same article he referred to "the extreme decentralization that allows a local jury or even a local prosecutor to hold up instead of uphold the law of the state" as one of the conditions that "too often result in a legal paralysis of legal administration," n45 that his writings of that period are expressly concerned with the evils of the "extravagant powers" of juries, n46 and that in 1931 he joined the other distinguished  [*1135]  members of the Wickersham Commission in this comment: n47

In [**58]  a number of jurisdictions juries are made judges of the law in criminal cases, thus inviting them to dispense with the rules of law instead of finding the facts. The juror is made judge of the law not to ascertain what it is, but to judge of its conformity to his personal ideals and ascertain its validity on that basis. . . . It is significant that there is most satisfaction with criminal juries in those jurisdictions which have interfered least with the conception of a trial of the facts unburdened with further responsibility and instructed as to the law and advised as to the facts by the judge.

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n43 See Kalven and Zeisel, op cit. supra note 33, p. 427.

n44 E.g., Scheflin, Jury Nullification: The Right to Say No, 45 So.Calif. L.Rev. 168, 182 (1972).

n45 See R. Pound, Law in Books and Law in Action, cited supra note 32, at p. 35: 

The clash of departments or even of officials, so characteristic of our polity, the extreme decentralization that allows a local jury or even a local prosecutor to hold up instead of uphold the law of the state, the elaborate machinery of check, balance and subdivision which the Puritan jealousy of the magistrate has fixed in our institutions, too often result in a legal paralysis of legal administration.

n46 See Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 29 ABA Rpts. 395, 401 (1906). He discourses on the necessarily mechanical operation of legal rules, as a penalty of uniformity; the inevitable difference in rate of progress between law and public opinion; the invalidity of the popular assumption that anyone is competent for the task of administration of justice ("The public seldom realizes how much it is interested in maintaining the highest scientific standard in the administration of justice.")

n47 National Commission on Law Observance and Enforcement (1931), Report No. 8 (Criminal Procedure) pp. 26-27. See also R. Pound, Jurisprudence, quoted supra note 38.
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The way the jury operates may be radically altered if there is alteration in the way it is told to operate. The jury knows well enough that its prerogative is not limited to the choices articulated in the formal instructions of the court. n48 The jury gets its understanding as to the arrangements in the legal system from more than one voice. There is the formal communication from the judge.  [**60]  There is the informal communication from the total culture -- literature (novel, drama, film, and television); current comment (newspapers, magazines and television); conversation; and, of course, history and tradition. The totality of input generally convey adequately enough the idea of prerogative, of freedom in an occasional case to depart from what the judge says. Even indicators that would on their face seem too weak to notice -- like the fact that the judge tells the jury it must acquit (in case of reasonable doubt) but never tells the jury in so many words that it must convict -- are a meaningful part of the jury's total input. Law is a system, and it is also a language, with secondary meanings that may be unrecorded yet are part of its life.

When the legal system relegates the information of the jury's prerogative to an essentially informal input, it is not being duplicitous, chargeable with chicane and intent [**61]  to deceive. The limitation to informal input is, rather a governor to avoid excess: the prerogative is reserved for the exceptional case, and the judge's instruction is retained as a generally effective constraint. We "recognize a constraint as obligatory upon us when we require not merely reason to defend our rule departures, but damn good reason." n49 The practicalities of men, machinery and rules point up the danger of articulating discretion to depart from a rule, that the breach will be more often and casually invoked. We cannot gainsay that occasionally jurors uninstructed as to the prerogative may feel themselves compelled to the point of rigidity. n50 The danger of the excess rigidity that may now occasionally exist is not as great as the danger of removing the boundaries of constraint provided by the announced rules.

We should also note the inter-relation of the unanimity requirement for petit juries, which was applicable to this trial, and is still the general rule though no longer constitutionally required for state courts. n51 This is an additional reason -- a material consideration, though neither a necessary nor sufficient condition -- to brake the wheels of those who would tell the petit jurors they are to determine the rules of law, either directly or  [*1136]  by telling them they are free to disregard the judge's statement of the rules. The democratic principle would not be furthered, as proponents of jury nullification claim, it would be disserved by investing in a jury that must be unanimous the function not merely of determining facts, hard enough for like-minded resolution, but of determining the rules of law.

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n51 See Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972); Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972).

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Rules of law [**63]  or justice involve choice of values and ordering of objectives for which unanimity is unlikely in any society, or group representing the society, especially a society as diverse in cultures and interests as ours. To seek unity out of diversity, under the national motto, there must be a procedure for decision by vote of a majority or prescribed plurality -- in accordance with democratic philosophy. To assign the role of mini-legislature to the various petit juries, who must hang if not unanimous, exposes criminal law and administration to paralysis, and to a deadlock that betrays rather than furthers the assumptions of viable democracy.

Moreover, to compel a juror involuntarily assigned to jury duty to assume the burdens of mini-legislator or judge, as is implicit in the doctrine of nullification, is to put untoward strains on the jury system. It is one thing for a juror to know that the law condemns, but he has a factual power of lenity. To tell him expressly of a nullification prerogative, however, is to inform him, in effect, that it is he who fashions the rule that condemns. That is an overwhelming responsibility, an extreme burden for the jurors' psyche. And it is not inappropriate [**64]  to add that a juror called upon for an involuntary public service is entitled to the protection, when he takes action that he knows is right, but also knows is unpopular, either in the community at large or in his own particular grouping, that he can fairly put it to friends and neighbors that he was merely following the instructions of the court.

In the last analysis, our rejection of the request for jury nullification doctrine is a recognition that there are times when logic is not the only or even best guide to sound conduct of government. For machines, one can indulge the person who likes to tinker in pursuit of fine tuning. When men and judicial machinery are involved, one must attend to the many and complex mechanisms and reasons that lead men to change their conduct -- when they know they are being studied; when they are told of the consequences of their conduct; and when conduct exercised with restraint as an unwritten exception is expressly presented as a legitimate option.

What makes for health as an occasional medicine would be disastrous as a daily diet. The fact that there is widespread existence of the jury's prerogative, and approval of its existence as a "necessary [**65]  counter to case-hardened judges and arbitrary prosecutors," n52 does not establish as an imperative that the jury must be informed by the judge of that power. On the contrary, it is pragmatically useful to structure instructions in such wise that the jury must feel strongly about the values involved in the case, so strongly that it must itself identify the case as establishing a call of high conscience, n53 and  [*1137]  must independently initiate and undertake an act in contravention of the established instructions. This requirement of independent jury conception confines the happening of the lawless jury to the occasional instance that does not violate, and viewed as an exception may even enhance, the over-all normative effect of the rule of law. An explicit instruction to a jury conveys an implied approval that runs the risk of degrading the legal structure requisite for true freedom, for an ordered liberty that protects against anarchy as well as tyranny.

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n53 Compare the London Juror's Petition of September 6, 1831, protesting against undue use of capital punishment. "That in the present state of the law, juries feel extremely reluctant to convict where the penal consequences of the offence excite a conscientious horror on their minds, lest the rigorous performance of their duty as jurors should make them accessory to judicial murder. Hence in Courts of Justice, a most unnecessary and painful struggle is occasioned, by the conflict of the feelings of a just humanity with the sense of the obligation of an oath." See Appendix 4, at p. 731, of L. Radzinowicz, The Movement for Reform, 1750-1833, A History of English Criminal Law (Macmillan 1948).

But jurors sufficiently beset by the strain respond on their own to a call of higher conscience they believe strong and clear. Indeed in 1830 the bankers of England formally petitioned the Commons to abolish capital punishment for forgery because this prevented convictions "and thus endangers the property which it is intended to protect." Radzinowicz, op. cit. supra, Appendix 3, p. 730. (The Petition of Bankers from 214 Cities and Towns, May 24, 1830)

Blackstone refers to the "pious perjury" under which jurors understated the value of articles stolen in order to avoid the capital charge. 4 Comm. 239. Professor Radzinowicz (op. cit. supra, at ch. 3, and 4) develops this and other lenity practices of grand and petit juries in the 18th and 19th centuries, and even includes (p. 94, fn. 49) an instance wherein Lord Mansfield -- a strict judge -- advised a jury to find a gold trinket of less value than 40 shillings. When the prosecutor indignantly exclaimed that its fashion alone was worth double that, Lord Mansfield observed, "God forbid, gentlemen, we should hang a man for fashion's sake."

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Finally, we are aware that the denial of defendants' request for a nullification instruction will be considered by them to negative some, or perhaps most, of the value of the right of pro se representation which we have recognized. This point could be answered in terms of logic: The right of self-representation is given for reasons recognized by the law, and cannot be a springboard to establish the validity of other advantages or conditions that lie in its tactical wake. Thus, a defendant's ability to present his demeanor and often even a kind of testimony, without exposure to impeachment or cross-examination, may be a tactical consequence of pro se representation, and even a moving cause of its invocation, but this is not to say it is an objective of the law. But defendants' position merits a more spacious answer, that lies outside the domain of formal logic. It is this. The jury system provides flexibility for the consideration of interests of justice outside the formal rules of law. This embraces whatever extra the defendant conveys by personal representation, whether through demeanor or sincerity of justification. But it is subject to the overriding consideration that [**67]  what is tolerable or even desirable as an informal, self-initiated exception, harbors grave dangers to the system if it is opened to expansion and intensification through incorporation in the judge's instruction.

IV. The Jury Instructions

Finally, defendants assert that one segment of the charge to the jury, set forth in the margin, n54 was coercive,  [*1138]  tantamount to a directed verdict of guilty, and outside the proper scope of a judicial instruction.

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n54 Finally, ladies and gentlemen, you are not trying the Vietnam War. The Vietnam War is not an issue in this case. You are not trying ideas. You are not trying the United States. You are not trying society. You are not trying any individual, any corporation, large or small. For there can be no freedom, no equal opportunity in an environment of criminal behavior. No nation should tolerate disregard of the law.

As Mr. Justice Goldberg said in the recent Supreme Court case of Cox against Louisiana [379 U.S. 559, 85 S. Ct. 476, 13 L. Ed. 2d 487]:

The constitutional guarantee of liberty implies the existence of an organized society maintaining public order without which liberty itself would be lost.


And he went on further to say in that case: 

We also reaffirm the repeated decisions of this Court that there is no place for violence in a democratic society dedicated to liberty under law, and that the right of peaceful protest does not mean that everyone with opinions or beliefs to express may do so at any time and at any place. There is a proper time and place for even the most peaceful protest and a plain duty and responsibility on the part of all citizens to obey all valid laws and regulations.


If you find that the Government has proven beyond a reasonable doubt that one or more of the defendants committed each of the elements comprising the crimes of second degree burglary and/or malicious destruction of property, then I must instruct you further that the law does not recognize as a defense to either of these charges that the defendants were motivated to commit their acts by sincere political, religious or moral convictions or in obedience to some higher law.

Individuals who believe that the Vietnam War is illegal or immoral or that certain activities of the Dow Company are undesirable have the right under our system of government to express their views or to protest these events by any lawful means, such as by peaceful picketing or parading. But the Constitution of the United States does not protect as a form of symbolic speech the destruction of private property and the violation of valid laws designed to protect society.

The defendants may have been motivated by the highest moral principles, and they may have been sincerely and passionately inspired. But such motives do not confer immunity from prosecution or conviction for the violation of a valid law, and as such the motives of the defendants are not controlling in the case which is before you for decision.

Therefore, if you find beyond a reasonable doubt that one or more of the defendants had the required intent to commit one or more of the offenses with which they are charged, then it is no defense that he or she also had one or more other intentions, reasons, purposes or motives, such as to protest against the Vietnam War or the activities of the Dow Company; nor is it a defense that he or she acted from sincere, religious motives, or that he or she believed that his or her intent was justified by some higher law. (Tr. 825 -827.)

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For the most part, defendants' real complaint seems to be that the court stated the law applicable to the case. There is no contention -- apart from the jury nullification claim, which we have rejected -- that the charge was inaccurate as a statement of the applicable law. If a judge is to instruct the jury on the ultimate facts that are material under the law, he may properly advise the jury of what matters brought forward by defendants are not material under the applicable rule of law -- as surely as he may charge that voluntary intoxication is no defense to a charge of second degree murder. Since it is the essence of the judicial function to declare the applicable law, it follows that the mere declaration of the law cannot be held outside the judicial function. This is tautological, but it is often the part of wisdom to be able to recognize which propositions are true tautologies. The jury were not told they must bring in a guilty verdict nor was there the kind of language or conduct, going beyond a declaration of the applicable law, that has in other cases n55 been held coercive, and an improper departure from the role of the judge.

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n55 Starr v. United States, 153 U.S. 614, 626-628, 14 S. Ct. 919, 38 L. Ed. 841 (1894) (court advocated defendant's guilt to the jury in a long address); Quercia v. United States, 289 U.S. 466, 53 S. Ct. 698, 77 L. Ed. 1321 (1933) (judge expressed opinion that defendant was a liar); Hardy v. United States, 118 U.S. App. D.C. 253, 335 F.2d 288 (1964) (judge stated government's case as affirmative facts); Blunt v. United States, 100 U.S. App. D.C. 266, 244 F.2d 355 (1957) (judge stated matter in issue as a fact, and in other respects advocated the prosecution's position).

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* * *

The judgment must be reversed, for the reasons stated in part II of this opinion, and the case remanded for new trial, if the Government be so advised, in accordance with parts III and IV.

So ordered.

 [*1147contd]  EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published documents.]

On Appellee's Petition for Rehearing and Suggestion for Rehearing En Banc

LEVENTHAL, Circuit Judge:

The Government's petition for rehearing leads us to amplify our opinion.

1. The Government argues that defendant's right to defend himself at trial is not absolute, and cites the Standards Relating to the Function of the Trial Judge (ABA Project on Standards for Criminal Justice, 6.6, Tentative Draft, June 1972, at 85), which states in pertinent commentary:

Moreover, the interest of the public in an orderly, rational trial is entitled to consideration in determining the defendant's right to appear pro se. See United States v. Bentvena, 319 F.2d 916, 937 (2d Cir. 1963); Butler v. United States, 317 F.2d 249, 258 (8th Cir. 1963). [**70] 


We agree with this statement to the extent set forth in our opinion, including e.g., that a defendant's disruption may waive his right to pro se representation. We note that both Butler, cited in our opinion (at fn. 14), and Bentvena, are cases involving requests for pro se representation made after the commencement of trial -- a situation that, as our opinion points out, is entirely different from that of a pro se claim made timely before trial begins. Indeed in Bentvena the court stated, 319 F.2d at 938:

One charged with crime has an absolute right to do without an attorney and conduct his own defense (28 U.S.C. 1654), but that is quite different from the right to discharge counsel after trial has begun. This latter right is a qualified one.


2. The petition for rehearing submits: 

With particular regard to the value of an orderly trial, we believe that a trial judge should have authority to engraft reasonable conditions on the  [*1148]  exercise of a defendant's right of self-representation.


It suffices to say that this case did not present a situation where the trial judge [**71]  sought to prescribe reasonable conditions to accompany pro se representation. We do not have before us whether, or in what manner, a trial judge could prescribe conditions for the purpose of assuring a trial without disruption -- to carry out the implied premise that there will be reasonable cooperation from the defendants, as opposed to any manipulation of the trial process so as to interfere with fair administration of justice.

3. The Government stresses a contention that the court's opinion improperly bypasses the doctrine of harmless error. Apart from the matters set forth in the opinion already filed, we observe that if the conventional doctrine of harmless error is applied, it will in effect undercut the right of pro se representation, since rarely if ever can there be a showing of prejudice in terms of result from the conduct of a trial by counsel. There is no requirement of a showing of prejudice when counsel has been denied. A like rule is applicable, although for different reasons, when pro se representation is denied.

4. The Government objects that our opinion means that any denial of pro se representation will per se require reversal. It does not require reversal [**72]  in a case where the trial judge makes findings of defendants' prior disruption, or refusal to assure reasonable cooperation, or inability to waive counsel, etc. The effort to cope with the problem of disruptions necessarily puts an obligation on the trial judge * to stake out the considerations explicitly and with care. In the absence of some exposition of an appropriate basis for denying his right, the defendant is entitled to a trial at which he is accorded his right to represent himself.

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* See Mayberry v. Pennsylvania, 400 U.S. 455, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971). The need for the contempt issue to be determined by a different judge means that the trial judge must take pains to develop a clear and complete record permitting a sound and fair resolution.

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Petition for rehearing denied.

Circuit Judge BAZELON dissents.



DISSENT:  [*1138contd] 
[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence;  [**73]  however, this pagination accurately reflects the pagination of the original published documents.]

BAZELON, Chief Judge, concurring in part and dissenting in part:

I concur in the Court's discussion of the statutory right of self-representation in criminal cases. In view of our holding that the statutory right is "unqualified," our decision need not rest on the asserted constitutional right to proceed pro se. I emphasize, however, that my concurrence reflects no retreat from the position I expressed thirteen years  [*1139]  ago in Brown v. United States, 105 U.S. App. D.C. 77, 84, 264 F.2d 363, 370 (1959) (en banc) (dissenting opinion). I believed then, and I believe today, that the sixth amendment guarantees a defendant the right to act on his own behalf in resisting a criminal prosecution.

My disagreement with the Court concerns the issue of jury nullification. As the Court's opinion clearly acknowledges, there can be no doubt that the jury has "an unreviewable and unreversible power * * * to acquit in disregard of the instructions on the law given by the trial judge * * *." Majority opinion at 1132. More important, the Court apparently concedes -- although [**74]  in somewhat grudging terms -- that the power of nullification is a "necessary counter to case-hardened judges and arbitrary prosecutors," n1 and that exercise of the power may, in at least some instances, "enhance, the over-all normative effect of the rule of law." Id. at 1137. We could not withhold that concession without scoffing at the rationale that underlies the right to jury trial in criminal cases, n2 and belittling some of the most legendary episodes in our political and jurisprudential history. n3

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n1 Majority opinion at 1136 and n. 52, quoting Fortas, Follow-Up/The Jury, Center Magazine 61 (July, 1970).

n2 See Williams v. Florida, 399 U.S. 78, 100, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970); Duncan v. Louisiana, 391 U.S. 145, 155-156, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); United States v. Spock, 416 F.2d 165, 180-182 (1st Cir. 1969); United States v. Bennett, 148 U.S. App. D.C. 364, at 368, 460 F.2d 872, at 876 (1972); United States v. Eichberg, 142 U.S. App. D.C. 110, 113, 439 F.2d 620, 623 (1971) (Bazelon, C. J., concurring); Scheflin, Jury Nullification: The Right to Say No, 45 S.Cal. L.Rev. 168, 187-88 (1972).

In Duncan the Supreme Court stated: 
A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. * * * Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the complaint, biased, or eccentric judge. * * * Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.


391 U.S. at 155-156, 88 S. Ct. at 1451. [**75] 

n3 See generally Scheflin, supra, note 2; H. Kalven & H. Zeisel, The American Jury 310-11 (1966); J. Alexander, A Brief Narration of the Case and Trial of John Peter Zenger (1963); cf. Duncan v. Louisiana, 391 U.S. 145, 155-156, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968).

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The sticking point, however, is whether or not the jury should be told of its power to nullify the law in a particular case. Here, the trial judge not only denied a requested instruction on nullification, but also barred defense counsel from raising the issue in argument before the jury. The majority affirms that ruling. I see no justification for, and considerable harm in, this deliberate lack of candor.

At trial, the defendants made no effort to deny that they had committed the acts charged. Their defense was designed to persuade the jury that it would be unconscionable to convict them of violating a statute whose general validity and applicability they did not challenge. An instruction on nullification -- or at least some argument to the jury on that issue -- was, therefore, the linchpin of the defense.  [**76] 

At the outset it is important to recognize that the trial judge was not simply neutral on the question of nullification. His instruction, set out in part in the margin, n4 emphatically denied the existence of a "legal defense" based on "sincere religious motives" or a belief that  [*1140]  action was justified by "some higher law." That charge was not directly inconsistent with the theory of jury nullification. Nullification is not a "defense" recognized by law, but rather a mechanism that permits a jury, as community conscience, n5 to disregard the strict requirements of law where it finds that those requirements cannot justly be applied in a particular case. Yet the impact of the judge's instruction, whatever his intention, was almost surely to discourage the jury from measuring the defendants' action against community concepts of blameworthiness.

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n4 Transcript at 825-27: 

Finally, ladies and gentlemen, you are not trying the Vietnam war. The Vietnam war is not an issue in this case. You are not trying ideas. You are not trying the United States. You are not trying society. You are not trying any individual, any corporation large or small. For there can be no freedom, no equal opportunity in an environment of criminal behavior. No nation should tolerate disregard of the law.

As Mr. Justice Goldberg said in the recent Supreme Court case of Cox v. Louisiana: "The constitutional guarantee of liberty implies the existence of an organized society maintaining public order without which liberty would be lost."

* * *

We also reaffirm the repeated decisions of this court that there is no place for violence in a democratic society dedicated to liberty under law, and that the right of peaceful protest does not mean that everyone with opinions or beliefs to express may do so at any time and at any place. There is a proper time and place for even the most peaceful protest and a plain duty and responsibility on the part of all citizens to obey all valid laws and regulations.

If you find that the Government has proven beyond a reasonable doubt that one or more of the defendants committed each of the elements comprising the crimes of second degree burglary and/or malicious destruction of property, then I must instruct you further that the law does not recognize as a defense to either of these charges that the defendants were motivated to commit their acts by sincere political, religious or moral convictions or in obedience to some higher law.

Individuals who believe that the Vietnam War is illegal or immoral or that certain activities of the Dow Company are undesirable have the right under our system of government to express their views or to protest these events by any lawful means, such as by peaceful picketing or parading. But the Constitution of the United States does not protect as a form of symbolic speech the destruction of private property and the violation of valid laws designed to protect society.

The defendants may have been motivated by the highest moral principles, and they may have been sincerely and passionately inspired. But such motives do not confer immunity from prosecution or conviction for the violation of a valid law, and as such the motives of the defendants are not controlling in the case which is before you for decision.

Therefore, if you find beyond a reasonable doubt that one or more of the defendants had the required intent to commit one or more of the offenses with which they are charged, then it is no defense that he or she also had one or more other intentions, reasons, purposes, or motives, such as to protest against the Vietnam War or the activities of the Dow Company. Nor is it a defense that he or she acted from sincere, religious motives, or that he or she believed that his or her intent was justified by some higher law.


n5 I do not contend that the jury is the exclusive spokesman of the community conscience. When the legislature enacts a criminal prohibition it too speaks on behalf of that conscience. But I cannot assume that every criminal statute enacts a rule of liability without fault. The legislative function is to define and proscribe certain behavior that is generally considered blameworthy. That leaves to the jury the responsibility of deciding whether special factors present in the particular case compel the conclusion that the defendant's conduct was not blameworthy.

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Thus, we are left with a doctrine that may "enhance the over-all normative effect of the rule of law," but, at the same time, one that must not only be concealed from the jury, but also effectively condemned in the jury's presence. Plainly, the justification for this sleight-of-hand lies in a fear that an occasionally noble doctrine will, if acknowledged, often be put to ignoble and abusive purposes -- or, to borrow the Court's phrase, will "run  [*1141]  the risk of anarchy." Majority opinion at 1134. A breakdown of the legal order [**78]  is not a result I would knowingly encourage or enjoy. But the question cannot be resolved, at least at this stage of the argument, by asking if we are for or against anarchy, or if we are willing to tolerate a little less law and order so that we can permit a little more jury nullification. No matter how horrible the effect feared by the Court, the validity of its reasoning depends on the existence of a demonstrable connection between the alleged cause (a jury nullification instruction or argument to the jury on that issue) and that effect. I am unable to see a connection.

To be sure, there are abusive purposes, discussed below, to which the doctrine might be put. The Court assumes that these abuses are most likely to occur if the doctrine is formally described to the jury by argument or instruction. That assumption, it should be clear, does not rest on any proposition of logic. It is nothing more or less than a prediction of how jurors will react to the judge's instruction or argument by counsel. And since we have no empirical data to measure the validity of the prediction, we must rely on our own rough judgments of its plausibility.

The Court reasons that a jury uninformed of [**79]  its power to nullify will invoke that power only where it "feels strongly about the values involved in the case, so strongly that it [will] itself identify the case as establishing a call of high conscience * * *." Majority opinion at 1136. In other words, the spontaneous and unsolicited act of nullification is thought less likely, on the whole, to reflect bias and a perverse sense of values than the act of nullification carried out by a jury carefully instructed on its power and responsibility.

It seems substantially more plausible to me to assume that the very opposite is true. The juror motivated by prejudice seems to me more likely to make spontaneous use of the power to nullify, and more likely to disregard the judge's exposition of the normally controlling legal standards. The conscientious juror, who could make a careful effort to consider the blameworthiness of the defendant's action in light of prevailing community values, is the one most likely to obey the judge's admonition that the jury enforce strict principles of law.

Moreover, if it were true that nullification which arises out of ignorance is in some sense more worthy than nullification which arises out of knowledge,  [**80]  the Court would have to go much further. For under the Court's assumption, the harm does not arise because a jury is told of its power to disregard the law, but because it knows of its power. Logically construed, the Court's opinion would seem to require the disqualification at voir dire of any prospective juror who admitted to knowledge of the doctrine. By excluding jurors with knowledge of the doctrine the Court could insure that its invocation would be spontaneous. And yet, far from requiring the exclusion of jurors who are aware of the power, the Court takes comfort in the fact that informal communication to the jury "generally conveys adequately enough the idea of prerogative, of freedom in an occasional case to depart from what the judge says." Majority opinion at 1135. One cannot, it seems to me, have the argument both ways. If, as the Court appears to concede, awareness is preferable to ignorance, then I simply do not understand the justification for relying on a haphazard process of informal communication whose effectiveness is likely to depend, to a large extent, on whether or not any of the jurors are so well-educated and astute that they are able to receive the [**81]  message. If the jury should know of its power to disregard the law, then the power should be explicitly described by instruction of the court or argument of counsel.

My own view rests on the premise that nullification can and should serve an important function in the criminal process. I do not see it as a doctrine that exists only because we lack the power to punish  [*1142]  jurors who refuse to enforce the law or to re-prosecute a defendant whose acquittal cannot be justified in the strict terms of law. The doctrine permits the jury to bring to bear on the criminal process a sense of fairness and particularized justice. The drafters of legal rules cannot anticipate and take account of every case where a defendant's conduct is "unlawful" but not blameworthy, any more than they can draw a bold line to mark the boundary between an accident and negligence. It is the jury -- as spokesman for the community's sense of values -- that must explore that subtle and elusive boundary.

Admittedly, the concept of blameworthiness does not often receive explicit recognition in the criminal process. But it comes very close to breaking through the surface in cases where the responsibility defense [**82]  is raised, see United States v. Brawner, 153 U.S. App. D.C. 1, at 62, 471 F.2d 969, at 1030 (1972) (en banc), (separate opinion); United States v. Bennett, 148 U.S. App. D.C. 364, 368-370, 460 F.2d 872, 876-878 (1972); United States v. Eichberg, 142 U.S. App. D.C. 110, 113, 439 F.2d 620, 623 (1971) (concurring opinion), and it is implicit in every case where criminal sanctions are imposed. More than twenty-five years ago this Court recognized that "our collective conscience does not allow punishment where it cannot impose blame." n6 And the Supreme Court, in a well-known opinion by Justice Jackson, has pointed out that

courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as "felonious intent," "criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "wilfulness," "scienter," to denote guilty knowledge, or "mens rea," to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in  [**83]  mind from conviction of infamous common-law crimes. n7


The very essence of the jury's function is its role as spokesman for the community conscience in determining whether or not blame can be imposed. n8

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n6 Holloway v. United States, 80 U.S. App. D.C. 3, 4-5, 148 F.2d 665, 666-667 (1945), quoted in Durham v. United States, 94 U.S. App. D.C. 228, 242, 214 F.2d 862, 876 (1954).

n7 Morissette v. United States, 342 U.S. 246, 252, 72 S. Ct. 240, 96 L. Ed. 288 (1952) (emphasis supplied). See also United States ex rel. McCann v. Adams, 126 F.2d 774, 775-776 (2d Cir. 1942) (L. Hand, J.), rev'd. on other grounds, 317 U.S. 269, 63 S. Ct. 236, 87 L. Ed. 268 (1962); Hart, The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401 (1958).

The nullification doctrine derives from the same moral principles as the mens rea or responsibility defense. But in view of my conclusion that the trial judge should have granted a nullification instruction, it is unnecessary for me to decide whether reversal would be required on the theory that the instruction that was offered effectively directed the jury to make a finding that the defendant possessed the necessary mens rea. Compare majority opinion at 1137-1138. [**84] 

n8 See Williams v. Florida, 399 U.S. 78, 100, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970); Duncan v. Louisiana, 391 U.S. 145, 155-156, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); United States ex rel. McCann v. Adams, supra; cf. A. Goldstein, The Insanity Defense 91 (1967): 
[The insanity defense] is a normative standard applied to conflicting clusters of fact and opinion by a jury, an institution which is the traditional embodiment of community morality and, therefore, well suited to determining whether a particular defendant, and his act, warrant condemnation rather than compassion.


See also Robinson v. Diamond Housing Corp., 150 U.S. App. D.C. 17, 29, 463 F.2d 853, 865 (1972).

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I do not see any reason to assume that jurors will make rampantly abusive use of their power. Trust in the jury is, after all, one of the cornerstones of our entire criminal jurisprudence, and if that trust is without foundation we must re-examine a great deal more than just the nullification doctrine. Nevertheless,  [*1143]  some [**85]  abuse can be anticipated. If a jury refuses to apply strictly the controlling principles of law, it may -- in conflict with values shared by the larger community -- convict a defendant because of prejudice against him, or acquit a defendant because of sympathy for him and prejudice against his victim. Our fear of unjust conviction is plainly understandable. But it is hard for me to see how a nullification instruction could enhance the likelihood of that result. The instruction would speak in terms of acquittal, not conviction, and it would provide no comfort to a juror determined to convict a defendant in defiance of the law or the facts of the case. Indeed, unless the jurors ignored the nullification instruction they could not convict on the grounds of prejudice alone. Does the judge's recitation of the instruction increase the likelihood that the jury will ignore the limitation that lies at its heart? I hardly think so.

As for the problem of unjust acquittal, it is important to recognize the strong internal check that constrains the jury's willingness to acquit. Where defendants seem dangerous, juries are unlikely to exercise their nullification power, whether or not an explicit [**86]  instruction is offered. Of course, that check will not prevent the acquittal of a defendant who may be blameworthy and dangerous except in the jaundiced eyes of a jury motivated by a perverse and sectarian sense of values. But whether a nullification instruction would make such acquittals more common is problematical, if not entirely inconceivable. In any case, the real problem in this situation is not the nullification doctrine, but the values and prejudice that prompt the acquittal. n9 And the solution is not to condemn the nullification power, but to spotlight the prejudice and parochial values that underlie the verdict in the hope that public outcry will force a re-examination of those values, and deter their implementation in subsequent cases. Surely nothing is gained by the pretense that the jurors lack the power to nullify, since that pretense deprives them of the opportunity to hear the very instruction that might compel them to confront their responsibility.

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n9 See Scheflin, supra note 2, at 226 n. 188.

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One often-cited abuse of the nullification power is the acquittal by bigoted juries of whites who commit crimes (lynching, for example) against blacks. n10 That repellent practice cannot be directly arrested without jeopardizing important constitutional protections -- the double jeopardy bar and the jury's power of nullification. But the revulsion and sense of shame fostered by that practice fueled the civil rights movement, which in turn made possible the enactment of major civil rights legislation. That same movement spurred on the revitalization of the equal protection clause and, in particular, the recognition of the right to be tried before a jury selected without bias. n11 The lessons we learned from these abuses helped to create a climate in which such abuses could not so easily thrive.

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n10 See, e.g., Trial and Terror, Newsweek (Nov. 4, 1946), reprinted in Racial Violence in the United States 161-62 (Grimshaw ed. 1969).

n11 See Carter v. Jury Comm'n., 396 U.S. 320, 90 S. Ct. 518, 24 L. Ed. 2d 549 (1970); Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970).

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Moreover, it is not only the abuses of nullification that can inform our understanding of the community's values and standards of blameworthiness. The noble uses of the power -- the uses that "enhance the over-all normative effect of the rule of law" -- also provide an important input to our evaluation of the substantive standards of the criminal law. The reluctance of juries to hold defendants responsible for unmistakable violations of the prohibition laws told us much about the morality of those laws and about the "criminality" of the conduct they proscribed. And the same can be said of the acquittals returned under the fugitive slave law n12 as well as contemporary  [*1144]  gaming and liquor laws. n13 A doctrine that can provide us with such critical insights should not be driven underground.

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n12 See Scheflin, supra note 2, at 177.

n13 H. Kalven & H. Zeisel, supra note 3, at 296-97. Jury nullification also provides us with crucial information about the morality of the death penalty. See McGautha v. California, 402 U.S. 183, 199, 91 S. Ct. 1454, 1463, 28 L. Ed. 2d 711 (1971):

In order to meet the problem of jury nullification, legislatures did not try, as before, to refine further the definition of capital homicides. Instead they adopted the method of forthrightly granting juries discretion which they had been exercising in fact.


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On remand the trial judge should grant defendants' request for a nullification instruction. At the very least, n14 I would require the trial court to permit defendants to argue the question before the jury. But it is not at all clear that defendants would prevail even with the aid of an instruction or argument. After all, this case is significantly different from the classic, exalted cases where juries historically invoked the power to nullify. Here, the defendants have no quarrel with the general validity of the law under which they have been charged. They did not simply refuse to obey a government edict that they considered illegal, and whose illegality they expected to demonstrate in a judicial proceeding. Rather, they attempted to protest government action by interfering with others -- specifically, the Dow Chemical Company. This is a distinction which could and should be explored in argument before the jury. If revulsion against the war in Southeast Asia has reached a point where a jury would be unwilling to convict a defendant for commission of the acts alleged here, we would be far better advised to ponder the implications of that result than to spend our time devising stratagems [**90]  which let us pretend that the power of nullification does not even exist.

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n14 Compare Sparf & Hansen v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1895).

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ADAMS, Circuit Judge:

This case presents several difficult and subtle issues. Their resolution requires a sensitive understanding of human dignity, American legal and political history, and the interrelationship of those factors with the present criminal justice system, for it is this system that ensures that all persons may peacefully pursue their interests without undue interference from others.

Here, the defendants, by interrupting the business of a large chemical company, attempted to publicize their dissenting views regarding the morality of the American involvement in the Vietnam War. It is apparent that the defendants attempted to exploit their criminal trial by using it as a platform for further exposition of their beliefs, and to rely on their moral position as a defense of criminal charges lodged against them.  [**91]  In furtherance of their efforts to transform what would otherwise be an ordinary criminal trial into a "political" fray, defendants wished to represent themselves, to deviate from the usual mode of conducting a criminal trial, and to argue to the jury that although they were in violation of the applicable statutes, they should be acquitted because their actions were morally justified.

The rulings of the district court regarding (a) the defendants' motions to proceed pro se, (b) the defendants' right to have the court charge the jury as to the nullification issue, and (c) the content of the charge as actually given provide the foundation of this appeal.

In addressing these questions, some of which are to a large extent as philosophical as they are legal, the Court of Appeals is at some disadvantage -- especially with regard to self representation -- in evaluating the district court's action from the cold record, divorced from the climate of the time when the trial took place. We must be mindful that the events in question here -- defendants' criminal acts as well as the trial itself -- occurred during a period of passionate  [*1145]  and at times bitter political dissent. Several [**92]  so-called "political" trials, including those of Dr. Benjamin Spock, the Catonsville Nine, and the Chicago Seven, occurred prior to this proceeding. In particular, it is significant that this trial closely followed that of the Chicago Seven, a trial wracked with violent disruptions when the defendants there challenged the underlying structure of the criminal justice system as we know it today.

In the context of what was transpiring in the judicial process in 1968 and 1969, the trial judge here was faced with a formidable task. On one hand, he had to preserve the judicial atmosphere vital in criminal proceedings to assure that both the Government and the defendants received a fair trial on the merits. The judge could not help but be aware that as a society we believe that an orderly, adversary trial by jury is a most efficacious means of arriving at the truth of the matters into which the court is inquiring. On the other hand, he had to take account of the asserted rights of the defendants to present themselves as moral persons -- possessed with dignity and freedom of spirit, attributes upon which our system of Government was founded and built -- as they sought to be acquitted of [**93]  their crimes. In evaluating whether the trial judge erred, we must be cognizant of the delicate balance he had to strike between ordered tranquility and America's irrepressible desire for liberty. Only if the court unduly weighted the scales against the defendants, either by his application of the facts of this case to the rules governing his actions or by his interpretation of the controlling law, may we reverse the convictions.

The apposite law, in my judgment, is accurately set forth in Judge Leventhal's opinion. Specifically, I concur in his holding that defendants have a statutory right to proceed pro se in a federal criminal trial, and that, in this case, it is not necessary to decide the question in Constitutional terms. n1 I also concur in the conclusion that the right to proceed pro se is waivable, either expressly or constructively, for example, by untimely assertion or by disruptive behavior. However, I disagree with Judge Leventhal's factual conclusion that the defendant's behavior here did not amount to a constructive waiver of the pro se right. Because I do not consider that the trial judge violated this right of the defendants, it is not necessary to decide whether [**94]  such a violation may nevertheless be considered harmless error.

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n1 Defendants argue that the right to proceed pro se is both Constitutional and absolute. But not all Constitutional rights are absolute. Indeed, the right to be represented by counsel may be intelligently and knowingly waived, Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1937), and the right to discharge one attorney for another after the trial has begun is subject to the trial court's discretion, see Evans v. Ockershausen, 69 U.S. App. D.C. 285, 100 F.2d 695 (1938). Other rights, such as the very important right to be present during the trial itself, may be waived by obstreperous conduct. Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970). The considerations deemed important in Allen apply to a case such as this.

In another case, it may be important to distinguish the source of the right to proceed pro se. If that right is Constitutional in origin, as held in United States v. Plattner, 330 F.2d 271 (2d Cir. 1964), then any violation of that right at all might require a remand for new trial, despite the absence of prejudice. See id., at 273, and the cases cited in footnote 2 therein. On the other hand, if the right is statutory only, then it may be subject to the harmless error doctrine. Similarly, if the right here asserted is enshrined in the Constitution, rather than established by statute, then a much more serious question regarding waiver would be presented.

However, these questions need not be decided in this case because the record here clearly establishes a waiver of the right to proceed pro se, even if such right is deemed Constitutional in nature.

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Since I would not reverse these convictions based on violation of defendants'  [*1146]  right to self-representation, I need not express an opinion on the issues of jury nullification and the charge to the jury. With regard to these latter questions, Judge Leventhal's statement of the law is wholly acceptable.

A careful review of the transcript of the proceedings with respect to defendants' motions to dispense with counsel indicates that the defendants on many occasions interrupted the proceeding for various reasons, despite the fact they were represented by counsel at that time. The printed record cannot inform us whether such interruptions were violent, impolite, contemptuous, or made with an impertinent or sarcastic tone of voice. However more than once the judge had to threaten intervention by the marshals to impress upon defendants that they had to obey orders of the court to be seated. At other times, the language used by the defendants appeared to be disrespectful or even rude. That the trial judge appeared to tolerate many instances of this type of behavior, and even engaged in discourse with defendants, does not prove that he acquiesced in such extraordinary tactics,  [**96]  but rather indicates that he was attempting to preserve some sort of order.

Although it may be argued that there are some things in the judicial process more important than decorum in a courtroom, we are not faced with such perplexing alternatives here. Dissent is a healthy manifestation of the freedoms we as a nation profess and cherish. And a criminal trial might serve as the seed around which a point of view may crystallize. But a courtroom is not an arena in which dissention, particularly of a disruptive nature, may supplant, or even take precedence over, the task of administering justice.

As mentioned earlier, it is not without significance that this trial occurred at a time when the judicial system was being subjected to great stress because of the actions of some defendants and attorneys. The trial judge was surely aware of the publicity that attended the commission of the charged crimes, and the notoriety the trial itself would achieve. To paraphrase a slogan of the "new left", he did not have to be a weatherman to tell which way the wind was blowing.

Although a gale may have been raging in the courts at that time, challenging the very assumptions upon which our system [**97]  of justice is based, a counter-current was also evident. Only a month after the trial here in question, the Supreme Court delivered its opinion in Illinois v. Allen, supra. There, the various justices gave notice that they were aware of the storm and the damage it could wreak, and that they were determined that the judiciary have the ability to steer clear of the danger. n2

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n2 Mr. Justice Black, writing for the majority, expressed the concerns of the bench, the bar, and the majority of citizens who were aware of what was occurring: 
"* * * But our courts, palladiums of liberty as they are, cannot be treated disrespectfully with impunity. Nor can the accused be permitted by his disruptive conduct indefinitely to avoid being tried on the charges brought against him. It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humiliated and their orderly progress thwarted and obstructed by defendants brought before them charged with crimes. As guardians of the public welfare, our state and federal judicial systems strive to administer equal justice to the rich and the poor, the good and the bad, the native and foreign born of every race, nationality, and religion. Being manned by humans, the courts are not perfect and are bound to make some errors. But, if our courts are to remain what the Founders intended, the citadels of justice, their proceedings cannot and must not be infected with the sort of scurrilous, abusive language and conduct paraded before the Illinois trial judge in this case." 397 U.S. at 346-347, 90 S. Ct. at 1062.


Justice Brennan, recognizing the importance of orderly trials, also set forth his views in a concurring opinion: 
"* * * The degree of liberty and equality that exists today has been the product of unceasing struggle and sacrifice. Much remains to be done -- so much that the very institutions of our society have come under challenge. Hence, today, as in Lincoln's time, a man may ask 'whether [this] nation or any nation so conceived and so dedicated can long endure'. It cannot endure if the Nation falls short on the guarantees of liberty, justice, and equality embodied in our founding documents. But it also cannot endure if we allow our precious heritage of ordered liberty to be ripped apart amid the sound and fury of our time. It cannot endure if in individual cases the claims of social peace and order on the one side and of personal liberty on the other cannot be mutually resolved in the forum designated by the Constitution. If that resolution cannot be reached by judicial trial in a court of law, it will be reached elsewhere and by other means, and there will be grave danger that liberty, equality, and the order essential to both will be lost." Id. at 348, 90 S. Ct. at 1063.


And Justice Douglas, also cognizant of the threat posed by the strategy of disruption, stated in a separate opinion: 
"I agree with the Court that a criminal trial, in the constitutional sense, cannot take place where the courtroom is a bedlam and either the accused or the judge is hurling epithets at the other. A courtroom is a hallowed place where trials must proceed with dignity and not become occasions for entertainment by the participants, by extraneous persons, by modern mass media, or otherwise."


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 [*1147]  Certainly, what transpired here, coupled with the real threat of further disruption, was sufficient to alert the trial judge to what could be expected if the motions to dispense with counsel were granted. Thus, his determination that to grant the motions would turn the trial into a shambles does not appear to be unreasonable.

Accordingly, I would conclude that defendants had, by their conduct, waived their right to proceed pro se, and would affirm the rulings by the district court that the defendants in these circumstances had to be represented by counsel. Based on this and on Judge Leventhal's opinion with regard to nullification and the charge, I would affirm the judgments of convictions.