Blocked Appointment in 1968: Draft Violation Cases and Shootings ##


In about 1967, we didn't have a Democratic senator in California, so we had the congressmen with that political patronage authority divulged upon them, and there were five or six congressmen from Northern California, and there were about 2,000 people who wanted to be appointed a United States district judge, and it got pretty much fractionated. Some of the machinations were not very noble. In any event, I had a couple of very strong friends who were congressmen. One of them was Philip Burton. But they represented a minority of the congressman.

As I said, there were about six congressmen and there was one who apparently did not take any real position, and three or four of them who were for a lawyer across the bay who had been, I guess he still was, a superior court judge. Brown had appointed him as a superior court judge, and he had his troubles with the bar, that is the lawyers, because they said he had the record for the highest number of refusal challenges made by anybody over there. In any event, they prevailed upon President Johnson to give his blessing to this guy's appointment, if he could qualify by the ABA [American Bar Association]. He didn't get through ABA. They rejected him, and that left me as a survivor. So the ABA gave me a recommendation as well qualified, and I went back to Washington, and they told me the president was going to make the announcement, and I went and had a picture taken with President Johnson, and the next day he made the announcement.


This was '68 by this time, wasn't it?


This was in 1968, yes, and in '68 they were going to have another election. They had a Republican Senate, and we had a senator by the name of George Murphy, and Murphy gave as his reason [for blocking the appointment] the contention that I was soft on draft dodgers. As I mentioned before, he was really after Ramsey Clark, who had become the attorney general, and I was simply the henchman.


What was his problem with Ramsey Clark?


Well, I don't know. We didn't have any policies that came from the attorney general about how to treat draft violations. The problem we had was that we had some judges who required strict compliance with the law before you convicted a person of a draft violation. And as I said, we had the technical problem that the process by which a person becomes in violation of the Selective Service law is (a) he doesn't register when he is required to; (b) if he registers, he doesn't give his full name or his right name; (c) if he is called up for registration, he doesn't come; or (d) he doesn't give his right address. Everybody at one time had to

do all this registering. So if they call him up to have a physical and he doesn't show up for his physical, or if he does show up for his physical and they call him up for induction and he doesn't come for induction—all of those are violations. All of these actions made up the record that the agency made that constituted the basis of the designation of a violator.

Draft Board members were not experts, they were citizens who did the work, so what they often did was they skipped a step or two in the process. For example, say the person didn't show up, but there would be no proof in their record that they had ever sent anything out, or if he didn't show up, claiming that he was ill or whatever it was, there was nothing in the record that he wasn't ill.


So the paperwork didn't back up the statements?


That's right, and that's true of [what you find] when you review a lot of agency actions. So the agency record, which was the Draft Board of the Selective Service System, was very often defective. Well, you'd go on that and you make a charge on it, and you start the trial, jeopardy attaches, and, on the whole, you find that there is a hole in the thing. You can't try him again. He's been tried, so double jeopardy. So to stop that, I set up in my office what was the equivalent of a group, and their function was to examine the record when it came to us from the Selective Service and before we took it into court. As a result of that, we threw a number of them out, because they couldn't get through.

The members of the Draft Board would usually resent this as a kind of a slur or criticism of their competence, and they would make these reports to the state director of Selective Service, and they'd even make reports to General Hershey, who was the national head of Selective Service. And General Hershey would talk to his friends in the Senate and say, That's what Ramsey Clark and his people are doing out there in California. That was the story that they used.


And you said they were trying to get at Mr. Clark through you.


Yes, that's right. Also, some of the local law enforcement people, the sheriff's office over in Alameda County particularly—they had a lot of parades and demonstrations and all that—and sometimes did some quite foolish things. Some of the things were unlawful. Once I was in Chicago someplace, and I got a call saying these guys in California threw a big log on a railroad track. The statutes say if you try to derail a train that's a death penalty case.


It's one of those things where you didn't get anybody who said I saw it. But they said, "All of these people are dancing around, they must have done it." I said, "Who did it?" They said they should be charged with attempted homicide. Remember—you may remember it, it's been a long time ago—the demonstrations on Telegraph Avenue? These kids protesting the draft and a lot of people who just wanted to get into some action were up there. They'd stop traffic on Telegraph Avenue. They'd do a whole lot of things, and they'd throw bricks at the cops and stones at them. The police got to the place where they were loading them up with those big buckshots in their guns, the sheriffs were, I mean.

They had a couple of situations in which people were shot seriously and several of them killed. In one case, there was the owner of an establishment on Telegraph Avenue—about a two-story building—and he had a little penthouse on the top of the two stories. When they announced they were going to have another demonstration there, he said to his employer, "I don't want anybody to get up on that roof, because if they get upon that, they'll throw stones down at the police. You go up there and keep it clear." To get to the top of this little shed on top of the second floor, there was a ladder in place. So he's climbing up there. Somebody had thrown something at somebody, and they shot him, and they killed him.


The police shot him?


Yes. It was the deputy sheriffs. It was horrible. Here they just shoot him, and this guy wasn't doing anything to them at all. On that same day, there was a fellow—he was either a carpenter or a painter. He was driving a truck on an assignment, and when he got to Telegraph—there was a blockade—he stopped his truck and got out and walked from the side street down toward Telegraph to see which way he might be able to go, if he could maybe go back on the street and get across Telegraph. A deputy sheriff comes around the corner and shoots at him and just throws him off his feet. This was crazy.


Yes, panic.


We got a lot of reports. We had some problems. We knew about these things, but the witnesses—most of them—would be demonstrators, and they wouldn't talk to us. Even though I had meetings with some of them, they had said to me, "We trust you on that, but if we give you the information you want, our names and addresses and what we know about this sort of thing, that will be turned over to the FBI, and the FBI will arrest us for dodging the draft." They didn't want to do it. I couldn't get witnesses for what I knew had happened.


Finally, I talked with the Civil Rights Division of the Department of Justice, and they had a couple of young people out there, and they sent them out here. These youngsters made friends with a lot of them and persuaded them that we were serious out here and they ought to cooperate. So they finally agreed. They said they were being represented by the American Civil Liberties Union. At least some of them agreed that they would tell us what they knew. So I brought them in quietly. Oh, first I had to get the approval of John Mitchell, who was then the attorney general. The rule at that time was that no United States attorney could initiate a civil rights case without the permission of the Department of Justice. The southerners had it all locked up, you see. I hadn't been able to do it, because I couldn't get these witnesses in, and when I finally got them, someone called me and said— Oh, let me tell you what happened.

We were within days of convening a grand jury. There were two incidents during World War II. One was the police in Chicago raided the home or whatever it was of the Black Panthers, and the police in Los Angeles did the same with Black Panthers in Los Angeles. A couple of people were killed and that sort of thing.

The Department of Justice Civil Rights Division had been assuring me that we were going to get this thing through. After those two incidents, they called me and said that John Mitchell—Attorney General Mitchell—said that this department was not in the business of prosecuting law enforcement people. So he wouldn't give the authorization. I remember getting the chief of the Investigative Division of Civil Rights Division and I told him, "I'm going to tell you, I guess it's time for me to go. I've been here long enough. But on this thing, I think it's a disgrace that Mitchell, who apparently, according to what I had been told, had okayed this investigation, and I'd geared up for it, had now had decided that he will not do it." I said, "Let me tell you, I'll assure you one thing, this information is not going to stay secret. Because when I walk out that door, it's going to walk out with me." "Try to hold off," he said, "it may weaken. It's not a good idea to do it." So I did, and then I got a call back.

"John Mitchell says okay, you can proceed. Not only that," he said, "but he says he will announce the convening of the grand jury." I said, "Do me one more favor." He said, "What's that?" I said, "I have never believed that it was any business of a district attorney or United States attorney to be announcing what his grand jury is going to do. That's done purely for some public purposes. But actually we want the members of the grand jury to be selected and to have the independence of mind and listen to the evidence, not to get the backwash of how newspapers write the story up, what's going to be coming up, and that sort of thing.

If you would, tell him that out here, I have always thought that the best policy was to make no announcement, but eventually that we'll tell the grand jury that it's been done with the permission of the attorney general, but we'll not put this out." They said, "Okay."

So I convened the grand jury, and by this time, the grand jurors were naturally skeptical of these radicals who were on Telegraph Avenue, and some of them thought that they deserved what they got. When they found out what the cases were going to be like, they asked me, "Aren't these really largely a bunch of Communists and radicals and that sort of thing—draft dodgers?" And I said, "Perhaps. Let me suggest this to you. Why don't you start off with the assumption that that is who these people are, and then we'll bring the evidence in before you? Then if, after you've heard the evidence, you don't think this is a proper case to proceed on, then you vote no on the indictment. I can't do anymore than that for you. I want you to give me a hearing on it, and then I want you to use your common sense on what you hear." So we put all of these witnesses in there. We had the guy who got shot in the leg, and he told how the deputy sheriff just came around the corner, saw him, and boom! That's what they were doing. Instead of having shotguns, they had this fine stuff and it doesn't go through.


Oh, sprays?


No, they had these thirty-ought shells in there. It will put a hole in you like this [demonstrates large]. I had talked to Frank Madigan, who was the sheriff of Alameda County, and I asked him to let us have the records of what the shots were that were issued, and what the instructions were. He told me he wasn't going to give me a damn thing. I said, "You'll give it to me, Frank." And he said, "Is that so?" I said, "Yes, because I'm going to subpoena them from you. Actually, I'm going to name you right there as the person who's in charge of it, who has custody of these things. You're going to do it. You're going to come to the grand jury and do it." "We'll see about that," he said.

So I had the United States Marshal go out and serve him. Well, someone called from his office and said he would be late. He was at his attorney's office, but he would come. He was going to come. So he came. I was out in the hallway when he arrived there. He said, "But first, I want to go in and talk to the grand jury." I said, "You're here as a witness and to bring some documents. You first turn them over to me, and then we'll see whether the grand jury wants to hear you now or later. I suspect they're not going to want to hear you now, because they haven't heard any evidence yet. I suspect that this isn't the time, but

that will be their decision." He said, "I won't go anywhere until I get a chance to talk with them and I won't do anything." I said, "Where are the records?" He said, "They're in my car." I said, "You'd better bring them, Frank, because if you don't, I'm going to have you held for contempt of court." He talked with somebody. I guess it was his lawyer. He went out and he brought the records, or some of the records anyhow. I asked a couple of my assistants, "How many records do you think he destroyed?" They said, "Well, not all of them."

I said to the grand jury, "The sheriff of Alameda County wants to talk with you. If you want to hear him, I'll bring him in, but I would suggest this much. First of all, you don't hear him with respect to the facts of an investigation except that [unless] you hear him under oath, like any other witness, and he's then subject to cross-examination. "You can hear anybody you want to hear, and you can do it any way you really want to do it. But I will tell you, if you're going to have him come in talking, and not under oath, I don't think you should do that, and I won't come in for that. But you're the grand jury." They thought and said, "Well, if you don't think we should." I said, "What I think is that he wants to tell you before you've heard any evidence what the evidence is going to be. I think he should do that later on if he wants to, but be assured that we want him. We have subpoenaed him to come, but it's not for the first day."

They finally sent word out to him that they would see him at another time. Frank said he talked to his lawyer and he said, "I don't think I'm going to turn these over." I said, "I think, Frank, if you're going to do that, you ought to go with me upstairs to the district court, and let's take it up with the judge up there, the duty judge, and he can probably give you advice that you'll listen to. Then you can act on your own."

We put that case on, and it went on for several weeks. There was a lot of stuff in the papers about it. The grand jury indicted ten or twelve of the deputy sheriffs. They were identified. Those are tough cases.

I stayed on as U.S. attorney to finish this indictment. President Nixon had already selected my successor. Jim Browning was his name—no relation to ours here [Ninth Circuit Judge James R. Browning]. I had him come over to the office one day, and I told him about this investigation. I said, "I'm sure you know about it. Everybody knows about it. But the grand jury is pretty much finished with its inquiry, and it has occurred to me that maybe you might wish to take it on and decide for yourself whether you think an indictment is appropriate, because you're going to have to take the responsibility. I am not trying to pull anything

fast on you." So he said he wanted to think about it. I guess he went around and got some advice from somebody. He called and said, "No, I think since you put it in, you ought to finish it."

On the last day of the grand jury, they agreed on an indictment of at least ten deputies. We went before the district court and returned the indictments. That was pretty sensational too. What Jim Browning did was he selected two of the people who had been my assistants to try the case. They tried it, and the jury hung. I had gone by that time. Then they tried the second trial, and I think the jury acquitted most of the people, but hung on several of them. Jim Browning called me, and he said, "How about coming over to the office? Let's talk about this." So I went over. He said, "I am reluctant to go to trial a third time on this, because there hasn't been any movement of the trial jury. Two of them have now refused to return—not an indictment—to convict them. What would you do if you were in my shoes?" I said, "I don't have the faintest idea how it is to be in your shoes. What I say to you is this: I appreciate the fact that you authorized the trial to go forth, and you put a couple of my old former people in to try. Now you raise the question whether you should try it a third time. Jim, I'll just have to tell you, that's a decision you have make. Remember, I offered to let you decide whether there should even be an indictment, and you felt that since I had amassed the evidence and done the work—


—and now you have caused the trial to go forth, I think you have to make that decision." So they dismissed the case. I felt that it was a pretty hot potato for him to have to handle. He had just gotten in there.


Do you know what the name of that case was? Did it have a name, or was it— It's not in the record is it, since it was not appealed or anything?


I think I have some clippings somewhere on it, if I can find them. As I say, there were about ten deputies who were named in the indictment. They were the defendants. There was a lot of interest, and the Board of Supervisors of Alameda County issued a statement blasting Mr. Poole for his insistence upon trying to prosecute these people. I was on the campus at that time, so the press followed me over there, and they said, "What comment do you have?" I said, "Which supervisor was it whom you're quoting there?" They gave me his name. I've forgotten his name now. I said, "Isn't he the same person who was in the news about two weeks ago because he was driving a county car drunk and wrecked

it?" [Laughs] They said, "Yes." I said, "Well, a law enforcement person if I've ever seen one." [Laughter]