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