"Unnecessary, Unwarranted & Inexcusable": Kent State Investigations

At 12:24 PM on Monday, May 4, 1970, twenty-eight Ohio National Guardsmen pivoted 135 degrees and began shooting into a crowd of student protesters at Kent State University. By the time the shooting ended thirteen seconds later, the guardsmen had fired sixty-seven rounds and four students lay dead or dying with at least another nine having been shot. How did this confrontation happen? And what caused the Guard to open fire? 36 years later, many of the answers are still unclear.

In Part I of this series, we looked at Nixon's curiously timed announcement of the Cambodian invasion and the May Day rally at Yale University. Part II examined the events of that weekend at Kent. Part III explored the events of Monday, May 4. Part IV dealt with the immediate aftermath of the shootings. This, Part V, looks at the multiple investigations that grew out of the shootings. Still to come, Parts VI and VII.

In memory of ?click?click">Jeffrey Miller, Allison Krause, Bill Schroeder, and Sandy Scheuer, join me in exploring the investigations into the events of May 4.

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Before we proceed, let me say I’ve had to rethink this series once again. As you might have noticed, I alluded to Part VI and VII above. I could have condensed and cut and fed you a brief version of the investigations and trials that followed. Or do what the series deserves and detail the nearly 10 year struggle for justice waged by some noble and strong people. Not surprisingly, I’ve opted for the latter. This diary, then, deals with the initial investigations, including the Scranton Commission. Part VI will deal with the 1971-1973 push for a federal grand jury and the federal criminal trial of eight guardsmen that followed. Then, Part VII will cover the civil trials and end this monster series. While I know these have been long, the response has more than justified them for me. I promise to do my best to make sure they are worth your time as well.

Also, I want to cite the work of Bill Gordon, author of “Four Dead in Ohio” for providing the best resources for the next 3 diaries. So, now, let’s investigate Kent State….

Commission on Kent State University Violence

One week after the shootings, KSU President White announced the formation of a faculty-staff-student Commission on Kent State University Violence to be chaired by Dr. Harold Mayer. Commission members included Dr. Ronald Beer, Mr. Thomas Bond, Mr. Robert T. Buckley, Dr. John Doutt, Dr. Doris Franklin, Mr. John Huffman, Dr. Benjamin McGinnis, Dr. John Ohles, Miss Kathy Stafford, Mr. George Urban, Mrs. Kathleen Whitmer, and Mr. Jeff Zink.

The commission issued an “urgent request” for anyone with information to come forward. “No details should be considered too insignificant to mention,” Chairman Mayer said. Mayer promised that the commission would honor the confidence of all statements but acknowledged that the commission’s files might be subject to subpoena. Operating through April 1971, the commission gathered some 270-odd statements. None of the law enforcement agencies involved in the events of May 1-4 cooperated, however. In the end, the commission failed to issue any report although a “minority report” by Doris Franklin, Kathy Stafford, Kathleen Whitmer, and Jeffrey Zink was written and is available from the May 4 Archives at Kent State. A footnote on page one of the forward to the minority report gives some sense of the divisions within the commission:

This narrative, in the beginning designed as Part I of the Report and subsequently changed to Part II, was on January 15, 1971, reduced to ‘Supplemental Input, Part A.’ The effect of this change was to make it an addendum to the final Report – not to be regarded as essentially a Commission document but part of an appended body of materials contributed by individual members and not to be recommended for publication. In the view of those members … herewith submitting Part II… this change is a violation of President White’s charge and runs counter to their own understanding of their obligation.

No doubt, at least in part, the reason why the minority report was shelved by the larger commission is the skeptical tone it adopts:

Our work on the present Commission together with evidence alluded to by the President’s Commission on Campus Unrest as having been supplied by the FBI has nevertheless led us to conclude that without “outside agitation” and preplanning, the weekend of May 1 would not have taken the ugly shape it did. Indignation, dismay, and wrath, expressed in meetings, rallies, and perhaps even in some kinds of disruption, there probably would have been; for not only had long-existing student disaffection been little ministered to during the preceding year, but students and faculty in large numbers were deeply disturbed by what looked to them like an unscrupulous invasion cloaked in high-sounding phrases and like a dangerous broadening of the war. Yet on no reasonable supposition would there have been the irresponsible and criminal violence that brought the National Guard to the campus and that on Monday culminated in death.

The minority report contains a wealth of detail from the statements received. The report is also significant for its detailed exposition of the 1969 Music & Speech demonstrations at Kent State and the House UnAmerican Activities Committee investigation that followed.

Justice Department and FBI Investigations

On the morning of Friday, May 8, the last of the National Guard troops left campus and the Ohio Highway Patrol pulled its last officers out that afternoon. Meanwhile, some 100 FBI agents descended on Kent. As many as 300 FBI agents would eventually fan out all over the country to interview students and others involved in the events of May 1-4, 1970. In the end, their reports would consume seven full rolls of microfilm. Curiously, since many have long believed that the ROTC fire was started by agents provocateur possibly seeking to provide a pretense to get the Guard onto the Kent State campus, initial FOIA requests pertaining to the Kent State shootings did not pry loose the FBI’s investigation into the ROTC fire. After some researchers, especially Charles A. Thomas of the National Archives, realized that information on the ROTC fire appeared to be missing, another FOIA request specifically seeking such information turned up a completely separate report on the ROTC fire, including a wealth of previously undisclosed information.

In studying the FBI files on the Kent State shootings, the sometimes schizophrenic character of the agency comes into focus. J. Edgar Hoover made his opinions known early in the investigation when he told Egil “Bud” Krogh that “the students invited (the shootings) and got what they deserved.” And, while many will always suspect that the FBI, through their undercover agents, played a role in the escalating confrontation at Kent State, reading the FBI’s investigative files also makes clear that their investigators tried very hard to gather all the information they could. As a result, the FBI files contain a lot of very valuable information about what happened during that weekend. Despite this, getting the Justice Department to act on those findings would turn out to be enormously difficult.

On May 21, 1970, Attorney General John Mitchell announced he would be stepping up investigations by the Justice Department to determine, as soon as possible, whether there had been violations of federal laws in the shootings at Kent State and the more recent shooting of students at Jackson State. Three days later, the Akron Beacon-Journal, which would earn a Pulitzer Prize for its coverage of the shootings, published a 30,000 word report on Kent State. Among its findings, the report stated that guardsmen had deliberately aimed at students and that they had “violated regulations which stress ‘restraint’ and ‘minimum application of force.’” Moreover, the article charged that Gen. Robert Canterbury, the senior ONG officer on the scene, had exercised “no control over the men on the hill under his command.”

Two months later, on July 23, 1970, another explosive article in the Akron Beacon-Journal contained details of a Justice Department memorandum summarizing the FBI findings. According to the Beacon-Journal, Jerris Leonard, chief of the civil rights division of the Justice Department, had determined that the shootings “were not necessary and not in order.” In addition, the FBI findings had concluded: there was no sniper; the guardsmen were not surrounded; the Guard still had tear gas available when the firing started; only a few guardsmen had suffered any injuries, with only one warranting medical treatment; at least three responsible members of the Guard stated that their lives were not in danger; and, no student posed a threat to the guardsmen when they opened fire.

The memo, written by civil rights division attorney, Robert Murphy, was titled “Kent State: Preliminary Conclusions and Recommendations.” Recommending against any prosecution of guard officers or Gov. Rhodes, Murphy told Leonard that “their conduct showed foolhardiness and negligence,” but these were not federal crimes. As for the guardsmen, Murphy determined that the most applicable law was a Reconstruction era statute regarding the deprivation of civil rights without due process of law. Murphy wrote:

I do believe that our initial findings indicate that some National Guardsmen intended to, and did, summarily punish members of the crowd by shooting at them, thereby killing, injuring, and intimidating them. The difficult part of proving a violation of 18 U.S.C. 242 (civil rights statute) is proving that the specific intent of the Guardsmen was to deprive the crowd of their constitutional rights.

Murphy, after setting out the facts detailed above by the Akron Beacon-Journal continued:

Proving these six points circumstantially proves intent and intent can rarely be proven in any other way. It is also the law in the Sixth Circuit (covering Kent) that in deciding the issue of intent it is reasonable to infer that a person ordinarily intends all the natural and probably consequences of acts knowingly done and knowingly committed. A person who shoots a gun intends to hurt him.

Murphy concluded that “one case shows specific intent beyond reasonable doubt” – that of Lawrence Shafer who had admitted to shooting Joe Lewis. In addition, Murphy considered the statements of Barry Morris, James Pierce, James McGee and Ralph Zoller as constituting “admissions in varying degrees, of the knowing use of unlawful force.” Based on all that, Murphy recommended convening a federal grand jury to indict those five guardsmen, along with Sergeant William Herschler, who had been identified by his sergeant as having fired, along with “any other that the Grand Jury may develop as a defendant.”

Two weeks after the Akron Beacon-Journal published its article, J. Edgar Hoover wrote John S. Knight, president and editor, disputing article. Hoover insisted that the results of their investigation had been turned over to the Justice Department “without recommendation or conclusion.” Knight published a prominent rebuttal on August 7, acknowledging the paper’s error in attributing the information to the FBI, rather than the Justice Department, but pointed out that Hoover had not rebutted any of the actual charges. “An exercise in semantics,” Knight wrote, “must not be permitted to obscure the fact that our article was essentially correct.” Why Hoover got involved became clear later when declassified materials showed Nixon had called Hoover at 8:47 AM on July 24 to complain about the ABJ article, which had moved into national circulation by then. Three hours later, Hoover sent a memo to his top aides:

The President said that from what he has seen, although it was just a cursory examination of our report, it looks like the Guard had a lot of provocation. I said I thought they definitely had. The President said he told his people he was going to have (the news story) ‘shot down’ as he was not going to have this student business erupting, as basically, what do you expect the Guard to do.

Another memo from Hoover later that day further clarified things Nixon’s position:

The President was quite disturbed about the article…and directed me to take steps to have it ‘knocked down’ insofar as the FBI was concerned. I told him I would see that this was done.

On June 22, Jerris Leonard forwarded Murphy’s recommendations, along with a more detailed memo, to Attorney General John Mitchell. John Mitchell, confronted with these findings, concluded that federal laws had probably been violated. But rather than convene a federal grand jury, as Murphy had recommended, Mitchell cleverly shifted the onus to Ohio, declaring that a federal grand jury might have to be convened “if Ohio authorities do not act.” Portage County Attorney Ron Kane (who had encouraged Rhodes to close Kent State prior to May 4) had resisted convening a grand jury because of lack of resources and manpower. Mitchell then decided to “assist Mr. Kane initially in the development of what we believe were clear violations of state statutes on the part of the Guardsmen.” Soon thereafter, Jerris Leonard flew to Ohio to meet with Kane to urge him to take up the investigation. Leonard promised Kane “a factual account of the shooting on May 4, 1970, a list of possible witnesses, and an analysis of Ohio law.” Robert Murphy, acting at Leonard’s request, then prepared another memo, this one entitled “Potential National Guard Defendants in the Kent State Shootings.” Murphy identified the same guardsmen for possible indictment under Ohio statutes, for crimes ranging from malicious shooting to assault. Murphy concluded:

Taking all the known facts into consideration, the shooting of the students was neither “necessary nor proper.” In conclusion, each of the six identified Guardsmen should be prosecuted under Ohio law.

In late October 1970, the New York Times published excerpts from a second, more detailed, Justice Department summary of the FBI investigation. This repeated the conclusions published earlier by the Akron Beacon-Journal but added even more serious charges against the guardsmen:

1. The Justice Department had some reason to believe that, subsequent to the shooting, guardsmen had conspired to fabricate their story of self-defense;

2. Of those guardsmen who had not admitted shooting, the Justice Department believed that two, and possibly more, had lied to federal agents – its own criminal offense;

3. From statements given to the FBI, it was established that Sergeant Lawrence Shafer of Troop G had deliberately aimed at and shot student Joseph Lewis, who had been standing sixty feet from the firing line. Lewis had thrown nothing at the guardsmen. He had taunted them with an upraised finger.

4. The Justice Department could find no explanation for the shooting, aside from “any questions of specific intent on the part of the Guardsmen or a predisposition to use their weapons.”

Still, the Justice Department dragged its feet, claiming that no decision had been made on whether or not to convene a federal grand jury.

Ohio Special Grand Jury

On August 1, 1970, Adjutant General Sylvester Del Corso called for a state grand jury to be convened. Two days later, following up on the AG Mitchell’s suggestion, Governor Rhodes ordered State Attorney General Paul W. Brown to convene a special state Grand Jury in Portage County to investigate the shootings. Rhodes not only provided funding for the special grand jury but, by doing so, gave the Justice Department an excuse not to convene a federal grand jury. Moreover, since Kane was considered something of a loose cannon, by designating this a “special state grand jury,” Rhodes assured that certain limits would be placed on the investigation. Most importantly, Kane’s public threats to subpoena the governor would now be buried.

That September, the special grand jury began taking testimony in Ravenna. Even before the jury was seated, Ohio’s Attorney General Paul Brown announced that indictments of guardsmen would not be considered. To make sure of that, Brown appointed three special prosecutors, including Seabury Ford who had served with the 107th Cavalry (one of the units involved in the Kent State shootings) in the 1920s.

Some twenty guardsmen were subpoenaed to appear before the special grand jury. However, the questions asked by prosecutors seemed designed less to produce information than to justify their exoneration. Guardsman Leon Smith, for example, was asked, “Did you have reason to believe that some serious personal bodily injury could have come to you?” A more leading question is hard to imagine.

The grand jury, sympathetic to the guardsmen, felt quite differently about the students. After hearing evidence for a month, the grand jury exonerated all the Guardsmen while indicting twenty-four students and one professor for the weekend’s violence. While this seems stunning in and of itself, it appears, from Justice Department memos that subsequently became available, that the grand jury had wanted to indict “hundreds” of students. When it came time to discuss indicting guardsmen, the jury considered only whether to indict Joe Lewis’s admitted shooter, Lawrence Shafer. The grand jury voted 15-0 to let Shafer go and, instead, indicted Lewis. The indictments contained charges ranging from first degree riot to the burning of the ROTC building. In addition to two of the wounded (Joe Lewis and Alan Canfora), those indicted included the student body president and a sociology professor.

In their report, issued on October 16, the grand jury announced that the guardsmen were not “subject to criminal prosecution” because they “fired their weapons in the honest and sincere belief … that they would suffer serious bodily injury had they not done so.” The report put the “major responsibility” for the unrest “clearly with those who are charged with the administration of the University.” The KSU administration, according to the grand jury, “over a period of several years” had “fostered an attitude of laxity, overindulgence, and permissiveness with its students and faculty to the extent that it can no longer regulate the activities of either.” Even Jefferson Airplane, which had performed at the university some months after the shootings, came in for criticism by the Ohio Grand Jury.

The report was immediately condemned by a wide range of people, including Ohio Senator Stephen Young who, on the Senate floor, said the grand jury had been “conceived in fraud and fakery. Its sole purpose was to whitewash Governor James A. Rhodes for his abominable blunder….?? At the same time, information began trickling out about evidence not presented to the grand jury. Guardsmen, such as Raymond Srp, who did not believe the shootings warranted, had not been called to testify. No matter, announced special prosecutor Seabury Ford, because the Guard “should have shot” all the troublemakers. “I think the whole damn country is not going to quiet down,” Ford told a reporter, “until police are ordered to shoot to kill.”

On January 28, 1971, U.S. District Court Judge William K. Thomas upheld the indictments but ordered the grand jury’s report destroyed. Declaring that the grand jury “took over the duties of a petit (regular) jury and acted as a trying body and determined guilt,” Thomas decreed that, were the report to stand, it would “irreparably injure” the defendants’ right to a fair trial. The report “renders moral and social judgments on policies, attitudes, and conduct of the university administration and some faculty and students.” Thomas also noted that the finding that the guardsmen acted in self-defense “is another way of saying that the ‘rioters’ are guilty.” Nonetheless, Thomas believed that, once the report was destroyed, individual decisions could be made about the ability of the defendants to obtain a fair trial. Ten months later, after Thomas’s order was upheld by the Sixth Circuit U.S. Court of Appeals, the Portage County Grand Jury report met an ignoble end when it was burned in a trash barrel behind the courthouse.

The first of the student trials began on November 22, 1971. Jerry Rupe was charged with rioting, arson, slashing a fire hose, and throwing rocks at fire fighters on May 2. As the trial started, Portage County Common Pleas Court Judge Edwin W. Jones imposed a gag order and prohibited picketing, parading and passing out leaflets in front of the courthouse. Cameras and electronic recording equipment were also forbidden. A week later, after no witnesses could connect Rupe to the ROTC fire, the jury found Rupe guilty of the misdemeanor of interfering with a fireman. They were, however, unable to reach a verdict on any of the three felony counts: rioting, arson, and throwing rocks. Rupe was sentenced to six months, to run concurrently with an unrelated 10- to 20-year drug sentence.

That same day, the state dismissed the charges against Peter Bliek, scheduled to be the second to stand trial. On December 1, the third defendant due to stand trial, Larry Shub, pleaded guilty to first degree riot in exchange for having other charges dropped. Five days later, Thomas Fogelsong also pleads guilty to first degree riot. On December 7, Judge Edwin Jones instructs the jury to find Helen Nicholas not guilty of interfering with fireman. With their cases in obvious disarray, the state, citing a lack of evidence, moves to drop all remaining charges against Richard Felber, Thomas Lough, Craig Morgan, Douglas Cormack, Alan Canfora (who was wounded on May 4), Kenneth Hammond, James Riggs, Joseph Callum, Joseph Lewis, Jr. (another May 4 victim), Ronald Weissenberger, Jeffrey Hartzler, John Gerbetz, Thomas Miller, Michael Steven Erwin, William Arthrell, David Adams, Rosemary Canfora (Alan’s sister), and Ruth Gibson.

With the remaining indictments dropped, Thomas Fogelsong’s attorney, with the concurrence of the state of Ohio, quietly changes his guilty plea to one of “nolo prosequi” (“we won’t prosecute further”). In the end, no one spends a day in jail as the result of the special grand jury’s indictments.

The President’s Commission on Campus Unrest; the “Scranton Commission”

On Sunday, May 24, White House Director of Communications, Herbert Klein, announced the formation of a commission to investigate the killings at Kent State and Jackson State. Officially known at “The President’s Commission on Campus Unrest,” this group would come to be known as the Scranton Commission, after its chairman, William Scranton, former governor of Pennsylvania. Other members include: James Ahern, chief of police of New Haven, CT; Erwin D. Canham, editor-in-chief of the Christian Science Monitor; Dr. James E Cheek, president of Howard University; Benjamin O. Davis, public safety director of the city of Cleveland; Martha A. Derthick, professor of political science at Boston College; Bayless Manning, dean of the Stanford University School of Law; Revius O. Ortique of New Orleans, lawyer and past president of the National Bar Association; and, Joseph Rhodes, Jr., a junior fellow at Harvard University and former student president at the California Institute of Technology. The Commission’s goals, as articulated by Scranton, include:

1. To identify the background causes of the disturbances on the campus;

2. To examine the plans and preparations of local and University officials to handle such disorders; and,

3. To formulate recommendations to ensure that there would never be a recurrence of May 4.

Scranton, however, also made clear that he would not allow the commission’s work to interfere with future judicial proceedings. Therefore, the commission announced they would not “subpoena any Guardsmen who shot people or any students who threw rocks.” Despite this, the public hearings included a broad cross-section of the community who were given an opportunity to describe what they witnessed. But when one witness started to describe what he believed was a hand signal to fire, Scranton dismissed him, stating again that the commission had no desire to “assess the guilt or innocence of any individual…”

The commission, working under tight time constraints, held their final public hearings at Kent State on August 19-21, 1970. Among those testifying were KSU President White and Brigadier General Canterbury who disagree over whether the university requested troops on campus and who ordered the May 4 rally dispersed. Also testifying were Mayor Satrom and Kent Police Chief Thompson who agreed that the disturbances were planned and orchestrated by outsiders, an opinion seconded by President White who states that Kent State was “targeted” by agitators “interested in either doing some burning or shutting us down.” One of the last witnesses is commission investigator George Warren. He tells the commissioners that the FBI has “concluded that no other person than a guardsmen fired a weapon.”

In early October, 1970, the commission released its findings. The report begins:

The crisis on American campuses has no parallel in the history of the nation. This crisis has roots in divisions of American society as deep as any since the Civil Wear. The divisions are reflected in violent acts and harsh rhetoric, and in the enmity of those Americans who see themselves as occupying opposing camps. Campus unrest reflects and increases a more profound crisis in the nation as a whole.

This crisis has two components: a crisis of violence and a crisis of understanding. We fear new violence and growing enmity.

Their primary findings: “The actions of some students were violent and criminal and some others were dangerous, reckless, and irresponsible.” Nevertheless, the Commission concludes that the shootings were “unnecessary, unwarranted, and inexcusable.” Two months later, Joseph Rhodes, Jr., the only student member of the Scranton Commission, told private investigators that two guardsmen had gone to Kent State with the intention of shooting students. And, according to Rhodes, the FBI knows who these guardsmen were. A few months later, James Ahern, Scranton Commission member, says that the only question is whether the crime committed by the National Guardsmen constituted murder or manslaughter. Only someone with a deep cynicism, according to Ahern, could conclude that someone killed unnecessarily and inexcusably had not been killed illegally.

Coming next: Watergate overwhelms Nixon, bringing new opportunities to push for a real investigation, and the Justice Department finally convenes a federal grand jury.

I know we can do so much better than this.

At least, maybe then, we won't have to repeat it again with a new generation of victims, killed, wounded, and traumatized.