Civil Liberties and the 1981 Brink's Case: A 1991 `Downtown' Inquiry--Part 3

Attorney Tipograph felt that the activists arrested on Oct. 20th received sham trials because anonymous juries were used and the jurors were brought to the courthouse in buses with blackened windows. She also recalled that “the creation of a police state atmosphere was participated in by the press—as well as the Left.” According to Tipograph, “Most Left forces didn’t want to have any association with the defendants. And, in the name of wanting to disassociate, many progressive Movement people refused to protest the violations of the civil liberties of the defendants.”

Gilbert recalled that the post-arrest Establishment media coverage of the case was “like an avalanche to discredit us in every way. They created what they knew from their own police analysis—and the documents we’ve seen—was a pure propaganda creation: that the whole thing started with the revolutionaries just jumping out of the van shooting. When they know, that the method of this group was to always to try to avoid shooting the police people if they freezed and did not shoot back.

“They created scares in the community that all sorts of people would be coming attacking the community. They created fears that juries would be attacked, even though there was never any Black Liberation Army trial or Weather Underground trial or trial of any of these groups in history where any juror had been the least bit threatened or approached. So they convinced the community that anybody who was on the jury would be under grave risk for their life.

“And it was treated as a real setback for civil liberties in terms of what jury trials are supposed to mean: with anonymous juries, with jurors who were never given their names. They were rushed in and out of the building in buses with blackened windows, covered by paramilitary police, for the incredible scare operation against the public in general and against the jurors, specifically, and for a broader propaganda effect that the revolutionaries were just `thugs' and `criminals' and `murderers'. They had a hard time, in terms of our histories and what we had stood for. And they had to do things like having artists’ sketches making us look like psychotics. Weird stuff. Even some of the guards of the jurors said” `Jesus! You people don’t look anything like what I’ve seen in the papers.’”

Because of the pre-trial publicity in Rockland County, on Dec. 15, 1982 the Appellate Division ordered the Brink’s Case trial shifted to Orange County after finding that The Rockland Journal-News had prejudiced the defendants’ chances for a fair trial. The Appellate Court had determined that “In a 50-day period ending Nov. 20, 1982, fully 76 news articles appeared in the local press concerning the case. Thirty-two occupied front page space and were accompanied by more than 50 photographs.”

Establishment media in New York City also published articles which may have jeopardized the fair trial rights of the Brink’s Case defendants. In its Nov. 22, 1981 issue, for instance, the New York Times Magazine published a pre-trial article by then-New York District Attorney Robert Morgenthau’s wife, former Times reporter Lucinda Franks, which was entitled “The Seeds of Terror: How Children Of Privilege Became The Weather Underground,” and which concluded “But those white radicals who massacred innocents at Nyack never seemed to move forth from that moment when they blindly assembled anti-personnel bombs on West 11th Street.”

The granting of the change of venue motion did not really make a fair trial more likely for Boudin, Clark and Gilbert—and for an additional co-defendant who had been arrested on Jan. 20, 1982, Kuwasi Balagoon (Balagoon died of AIDS while in prison in 1986, after being sentenced at the same time as Gilbert and Clark), according to Tipograph. “Essentially, people had been subjected to the same sort of press coverage in all the adjacent counties,” Tipograph said in a 1991 interview. A preliminary screening of potential Orange County jurors by Boudin’s attorneys had found, according to Castellucci’s book, that “half the Orange County residents called for jury duty had already judged the defendants guilty.” Although attorneys for the Brink’s Case defendants applied to have the trial moved to New York City—where the defendants were from and where their peers lived—the court denied this application.

Downtown asked the now-deceased Kunstler in 1991 why he thought the application to move the trial to New York City was rejected?

“New York City is too cosmopolitan a jury pool. The courts have held that large cities are more likely to overcome pre-trial publicity prejudice than rural towns. But there would have been less chance to influence the jury to convict. You can’t ride horses in front of the courthouse in New York City since it’s too cosmopolitan. They wanted the defendants tried in a rural area where the atmosphere could best influence the verdict,” Kunstler answered..
(end of part 3)

Next: Civil Liberties and the 1981 Brink’s Case: A 1991 Downtown Inquiry—Part 4