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Punishment first, sentencing after.

The arrest of an additional suspect in the Brink's robbery/murder case on November 30 stirs memories of the trial of the original defendants. At a time when Secretary of State George Shultz has called for a "war on terrorism" even if it means causing the death of "some innocent people," when present Federal Bureau of Investigation guidelines, as in the old COINTELPRO days, permit investigations of individuals or groups merely on the basis of statements, and when the Administration has introduced legislation that would impose ten-year prison sentences on anyone convicted of giving vaguely defined support to "terrorist" governments or groups, it is worth re-examining the government's prosecution of the first group of defendants--and its impact on civil liberties.

"The test of a civilization is how it treats the people it dislikes." Attorney Dan Pochoda repeated that familiar phrase at a particularly frustrating moment during the two-and-a-half-year pretrial confinement of his client Kathy Boudin. Now that almost eight months have elapsed since Boudin's case ended with her pleading guilty and being sentenced to twenty years in prison as a participant in the crime, the phrase remains just as apt.

Not only Boudin's but all the cases that arose from the October 20, 1981, holdup of a Brink's truck in Nyack, New York, in which a guard and two policemen were killed, provided a test of how well our laws and constitutional guarantees work. In many ways, our justice system, and the civilization it represents, have failed the test.

The shrill cry of "terrorism" blotted out reasoned judgment; in the name of law and order, breaches of the law were condoned, even by the courts. This trampling on the defendants' rights was accomplished easily because the liberal community, horrified by the events in Rockland County and wishing to dissociate itself from them, looked the other way.

The defendants weren't the only ones who broke the laws in this case. During the pretrial phase, following their arrest on charges of second-degree murder and armed robbery, the government did its share of lawbreaking as well.

After a brief stay in the Rockland County jail, two of the five defendants who were being tried on state charges were placed in solitary confinement in the Metropolitan Correctional Center in Manhattan. Such confinement is ordinarily a short-term punishment for prisoners who have misbehaved. They were singled out for punitive treatment in other ways. The prison forbade Boudin and co-defendant Judith Clark to touch their babies during visiting hours. "It is said they might be carrying a weapon in their Pampers," Boudin wrote in an affidavit. After two and a half months, U.S. District Cout Judge Kevin Duffy ordered an end to those conditions, saying, "Miss Boudin as a pretrial detainee is not to be punished."

But on the day of Duffy's order, January 7, 1982, the five defendants, including Boudin and Clark, were moved to Woodbourne Correctional Institution, which houses convicted male prisoners. The shift violated a state law which allowed transfers of pretrial detainees to such facilities only when a jail becomes "unfit or unsafe . . . due to an inmate disturbance or a natural disaster." Six months after they were transferred, the state legislature added the words "or other extraordinary circumstances" to the statute to authorize what had been done.

Next the defendants were moved to Orange County, where the guards' names and numbers were concealed for much of their stay, in violation of a state law intended to insure accountability among prison personnel.

State law also mandates that defendants must be housed in the country where they are being tried. In December 1983, Boudin's trial was moved to White Plains, in Westchester County, after her lawyers showed that half the jury pool in Orange County, where three of the defendants had been tried, had already decided that she was guilty. The Appellate Division of the New York State Supreme Court ordered her transferred to Westchester County. But that order was not obeyed. Instead, on February 3, Boudin was returned to the Rockland facility. The State Commission of Correction initially called the transfer "totally unauthorized" but later approved it.

The removal to Rockland County, Boudin's attorneys complained, deprived her of the Sixth Amendment right to counsel. Earlier this year, while a jury was being selected in White Plains, her lawyers could consult with her only briefly at the start and close of each day's session, unless they wanted to travel to Rockland at night, which meant giving up an evening's legal work. At first the Rockland cells were pitch dark, her attorneys charged, so Boudin could not read or work on her case.

"Never just talk about me," Boudin told me, pointing out that other Brink's defendants had fared even worse. Sam Brown had complained for more than two months that he was in excruciating pain caused by five days of beatings in the Rockland County jail following his arrest. Only after he had informed on his colleagues to the F.B.I.--causing further arrests, some believe--was he allowed to see a doctor, who diagnosed a broken neck and ordered a spinal fusion operation. Sekou Odinga spent more than three months in the Kings County Hospital Center after his arrest on Federal charges in connection with the Brink's holdup a few days after it occurred. According to hospital records, he had bruises all over his body, swollen eyes and jaws, and cigarette burns on his arms. His legal advisers, Judith Holmes, Susan Tipograph and Mark Gombiner, say he was tortured while in custody.

None of the officers whom Brown and Odinga accused of beating them have been prosecuted. Queens County Assistant District Attorney Edmund Aleksey, who prosecuted Odinga on separate state charges of attempted murder for shooting at the policemen who arrested him, dismissed the hospital report as "a self-serving declaration" and said he didn't believe Odinga's allegations. He didn't investigate the injuries, he said, "because they're all nuts, they're all terrorists. We're a prosecutorial office. As far as we know, the police didn't commit any crimes."

The state government also justified its unusual treatment of the Brink's prisoners, both before and during their trials, on the ground that they were terrorists. Boudin's lawyers contended that the extraordinary security precautions taken with the defendants contributed to a public perception that they were dangerous, hence guilty. When four of the five defendants were transferred from Rockland to Orange County at 3 A.M. in June 1983, the motorcade of police cars with sirens screeching woke and alarmed people along the route.

At a pretrial hearing in Rockland County in September 1982 law-enforcement officers openly photographed demonstrators supporting the defendants, as well as people entering the courthouse, but as Nat Hentoff pointed out at the time in The Village Voice, the civil liberties community did not speak out. Guards with shotguns were posted night and day on the roof of the Orange County jail. "People wouldn't let their children play outdoors near the jail," Boudin recalled.

Some of the hysteria was manufactured. Bomb threats against the Orange County sheriff and county executive seemed to justify continuing the use of extra deputies and expensive overtime. Later, the sheriff informed the county executive that the threats apparently had been made by a deputy assigned to intelligence duties in the case.

The authorities' fear of terrorism had its occasional comic side. When a suspicious-looking box was spotted in a church near the Orange County jail, an Army demolition team was called in. Carefully they opened what turned out to be a box of candles. Similarly, when Judith Clark, who is 5 feet 3 inches tall, arrived at the state prison for women, a size 18 uniform was waiting for her. The guards told her they thought she was much bigger.

A more serious issue is the effect the extraordinary security measures had on the juries. The jury in Orange County was driven to court each day in a bus with blackened windows. The members were anonymous, and some donned sunglasses when the defendants appeared. At a pretrial hearing, a witness testified anonymously. The same atmosphere affected, and possibly prejudiced, jury selection in Boudin's trial. Potential jurors had to enter through the rear of the Westchester County Courthouse in White Plains because the front door was sealed behind a newly constructed hip-high concrete wall that ringed the building. Armed officers methodically searched their belongings as they passed through airport-style metal detectors. "It was as if we won a change of venue not to White Plains but to Beirut," Boudin's attorney Leonard Weinglass remarked. At least one potential juror made the same comparison. Another said he would serve only if round-the-clock protection was provided for his family.

The defense faced a Catch-22 in picking jurors. It challenged for cause people who were related to police officers or who knew about Boudin's participation in the Weather Underground. (At one point, more than one-quarter of the jury pool fell into each of those categories.) But since the defense planned to appeal the case on the ground that the judge had erred in not excluding those two groups from the jury pool, to maintain its right to appeal on that point, it had to be consistent and challenge all potential jurors who belonged to them, even those who seemed likely to be favorable to the defense. The immediate effect of that strategy was the loss of many desirable jurors, since the D.A. consented only to the removal of--and the judge removed--those jurors who seemed liberal or likely to be sympathetic to the defense. Those who seemed unfavorable stayed on.

On March 26, Judge David Ritter announced that he would remove for cause only those jurors with close relatives on the police force who had been killed or injured by violent acts during the course of duty. Then he violated his own standards, removing four jurors who didn't fit that description. Two of them did not have relatives on the police force injured in the line of duty and seemed possibly favorable to the defense. Meanwhile, he allowed on the panel a woman who said she had owned stock in the Pittston Corporation, the Brink's parent company, at the time of the robbery and had discussed the case with her brother, a former corrections officer, after the judge had forbidden conversations about the case. (When the judge inquired as to why she had asked her brother what he thought about the case, she replied, "I had no one else to ask.") Had the trial taken place, the defense would probably have had to contend with jurors who were affected by family ties to the police and their knowledge of Boudin's past, to say nothing of the high-security atmosphere of the courtroom.

On the afternoon of April 26, within the concrete bunker of the White Plains courthouse, Kathy Boudin pleaded guilty to one count of felony murder for the killing of the Brink's guard, and one count of armed robbery. (It was a plea-bargain arrangement which seemed the most practical way to reduce her term.) She was sentenced to twenty years in prison and will not be eligible for parole until 2001, when she will be 58. "I feel terrible," she said in a quiet voice, "about the lives that were lost as a result of this incident." A week later, at her sentencing, she said: "The meaning of my life has come from being part of a worldwide tradition of fighting for a more just and humane world. My ideals give me strength today as well as yesterday and tomorrow." Ritter gave three consecutive twenty-five-year-to-life sentences to each of her co-defendants, including the informant Brown, long since broken, who in his prison cell talked to both God and the Devil. They will be eligible for parole in seventy-five years.

"A sentence of that severity for someone who did not have a weapon and did not fire a shot is harsh," said Weinglass, noting that Emily Harris and another woman, both convicted for engaging in acts of violence (Harris as a member of the Symbionese Liberation Army and the other as a participant in a robbery/murder in Boston staged allegedly to finance the antiwar movement), served seven years each. "A whole new atmosphere pervades the criminal justice system. Law-and-order judges know that unlike in the past twenty years, they now have friends upstairs in the appellate courts." He added, "The failure of the civil liberties community to come to their [the defendants'] aid gave further license to both the trial and appellate courts."

A number of troubling legal tactics and precedents emerge from the Brink's case. One is the use of the grand jury as an instrument of political harassment. Eleven friends or possible associates of the Brink's defendants were jailed for up to eighteen months for civil contempt stemming from their refusal to cooperate with the grand jury investigation. They were released only because a judge said that holding them would be punitive, and therefore improper, since the purpose of the civil-contempt statute is to coerce testimony and these people clearly weren't going to be coerced. Last year in Brooklyn, a group of Hispanics were tried for refusing to testify to a grand jury under the criminal-contempt statute; they got three years.

Another disturbing development was the use of the Racketeer Influenced Corrupt Organizations Act of 1970 (RICO) against defendants in the Federal Brink's case. Enacted to give prosecutors unusually wide-ranging powers in fighting organized crime, the statute has recently been found useful in prosecuting political people as well. Far broader than the Federal conspiracy statutes used against Dr. Benjamin Spock, the Chicago Eight and the Harrisburg defendants, it carries a twenty-year maximum sentence, instead of the usual five. Sekou Odinga and his five Federal co-defendants were charged under RICO; he was charged on a number of counts of murder and robbery as well. But although Odinga was acquitted of all the murder and robbery charges, including those stemming from the Brink's robbery, he was convicted of both violating RICO and conspiring to violate it. He was sentenced to two terms of twenty years each, which, in an unusual move, were made consecutive.

Kathy Boudin says that the government's treatment of the Brink's defendants set a pattern since followed elsewhere. People who define themselves as political and who are called terrorists by the government are in jail around the country, and for many of them, sentences are longer and conditions are worse than in the bad old days of the Nixon Administration. Some months after Boudin was arrested, she pointed out, a group of Puerto Rican independentistas in Chicago were placed in solitary confinement immediately after their arrest. Boudin told me about two of them, Lucy Rodriguez and Haydee Torres--the former serving a seventy-five-year sentence for seditious conspiracy--who were kept at the Federal Correctional Institution at Alderson, West Virginia, in total solitary. They were forced to stick their hands out their cell door window to be handcuffed before being allowed out, even to go only a short distance--to take a shower, for example.

As Boudin sees it, the current "antiterrorist" campaign is reminiscent of the government's attack on the left during the 1950s. "However one may feel about so-called 'terrorist' activities," she wrote in a letter to a friend this spring, "it is absolutely clear that the government activities are aimed primarily at deepening the patriotism, racism, anticommunism and antidemocratic procedures and are aimed at both politically mobilizing the people in a reactionary direction and at weakening the entire left."
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Title Annotation:illegal mistreatment of the defendants in the Brink's robbery-murder case
Author:Reisig, Robin
Publication:The Nation
Date:Dec 15, 1984
Previous Article:Journalists under the gun in Beirut.
Next Article:A prophecy, a protest, a priest.

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