The Guardsmen Go on Trial: Kent State

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. Part V looked at the many different investigations that grew out of the shootings. This is Part VI covering the federal grand jury. Still to come: Part VII: the civil trials brought by the victims.

In memory of ?CLICK">Jeffrey Miller, Allison Krause, Bill Schroeder, and Sandy Scheuer, join me in exploring the federal grand jury investigation into the events of May 4.

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I want to acknowledge this diary’s debt to the work of Bill Gordon, author of Four Dead in Ohio.

”The President Has Decided”

As 1970 came to a close, calls for a federal grand jury continued but the Nixon White House resolutely took no action. For months, people waited and speculated while Kent State fell from the headlines and the public consciousness. Finally, on August 13, 1971, fifteen months after the shootings, Attorney General John Mitchell announced there would be no federal grand jury despite his earlier statements that the Guardsmen had apparently violated federal laws. While Mitchell accepted the Scranton Commission conclusions of “unnecessary, unwarranted, and inexcusable,” he maintained the Justice Department could not act because they lacked “credible evidence of a conspiracy between National Guardsmen to shoot students on the campus… “ Mitchell echoed the recommendations of William O’Connor, Robert Murphy’s immediate supervisor. O’Connor, ignoring Murphy’s earlier conclusions, recommended the Justice Department close the case “because of serious evidentiary problems,” including the government’s stunning inability to prove which rifles the Guardsman had been holding and firing.

Mitchell shut down the investigation ten months after we now know Nixon had ordered him to do precisely that. On November 18, 1970, Nixon sent Mitchell a memo via John Ehrlichman that stated “the President has decided that no such grand jury would be sought.” The memo, from Ehrlichman to Mitchell stamped “eyes only,” also directed Mitchell to “please ask Mr. (Jerris) Leonard to advise the President by letter or memorandum that he fully understands the President’s instruction in this regard.” Leonard was chief of the civil rights division of the Justice Department. Apparently, he and Murphy had been straying off the White House’s acceptable terrain during their initial investigations. So, at 4:00 on a Friday afternoon in the dead heat of a DC August, John Mitchell carried out Richard Nixon’s orders and shut down the Kent State investigation.

The lid comes off the Nixon Administration

For the next two years, as the country’s attention shifted to Watergate, Kent State dropped off the radar. Even fate seemed to be working against the parents. In 1972, through the good offices of the late, much-missed and totally wonderful Rev. John P. Adams of the Board of Church and Society of the United Methodist Church, the parents of the dead were scheduled to come together for the first time in Washington, DC, to hold a press conference reminding the nation of the questions that had lingered for two years. But on May 2, 1972, J. Edgar Hoover died and the parents cancelled out of a respect that Hoover certainly had not shown their children. Ironically, however, it would be Hoover’s death and the need to replace him, along with Watergate, that would set in motion the next round of events.

Less than a year later, however, Watergate was catching up. On April 30, 1973, Nixon announced he was accepting the resignation of his attorney general, Richard Kleindienst, along with those of H.R. Haldeman and John Ehrlichman. That same day, he fired John Dean. (Former AG John Mitchell had left the administration earlier to take over the running of CREEP, Nixon’s aptly-named re-election committee and was already knee-deep in the scandal.) Elliot Richardson, one of the few squeaky clean members left in the Nixon administration, was appointed to replace Kleindienst.

Meanwhile, student activists, who had not yet given up on getting justice for the Kent State victims, flew to DC in early May to meet with a deputy to Leonard Garment, Nixon’s new counsel, and Deputy Assistant Attorney General William O’Connor. To their amazement, as the students pressed for a grand jury, O’Connor admitted that the Justice Department had developed enough evidence to prosecute the guardsmen. That statement showed up on the front pages of many national and Ohio newspapers as Elliot Richardson’s nomination was moving through the Senate.

On June 13, Richardson wrote KSU’s president Glenn Olds announcing that J. Stanley Pottinger, the new head of the Civil Rights Division, would be taking “a fresh look at the Kent State issue.” It appears that, at least in part, the Justice Department’s change of heart was triggered by the decision of a House Judiciary Subcommittee, chaired by Rep. Don Edwards of California, to investigate the Justice Department’s handling of the case. That investigation would again rattle the cage of Terry Norman, the student photographer who was carrying a gun on May 4. Nathan Lewin, a columnist for The New Republic raised the question many were asking:

Suspicious minds may wonder in light of the recent revelations of the role that partisan politics played in Mr. Mitchell’s Department of Justice, whether there is not a skeleton rattling in this closet, and whether the renewed interest in Kent State was designed to head off some startling disclosures as to how or why the case was initially quashed. …Might there have been other embarrassing information that the prosecution would have been compelled to disclose if it had indicted the Guardsmen?

About the same time, Nixon had to find another candidate for FBI director. L. Patrick Gray, who had replaced Hoover, had been forced to resign after it became known that he had literally “deep-sixed” critical Watergate documents by tossing them into the Potomac River. In mid-July, as Nixon’s new nominee, Clarence Kelley was preparing for his confirmation hearings before the Senate Judiciary Committee scheduled later that month, stories about Terry Norman began appearing again in newspapers across the country, thanks to the threatened House Judiciary Committee hearings. Pat Shea, a Senate Judiciary Committee investigator, suggested to Sen. Birch Bayh that a series of questions about Norman be posed to Kelley at his confirmation hearings:

1. Did Terry Norman ever work for the FBI as an informant?
2. Was he specifically working for them on May 4?
3. Did the FBI ever interview him after May 4?
4. Were any ballistics tests ever conducted on his gun?

With Kelley’s replies, for the first time, we had confirmation that Norman had worked for the FBI, receiving a $125 payment a month before the shootings for information, supposedly, on white power groups. News stories about Kelley’s response resurrected concerns long held by Capt. John Martin of the National Guard who took them to Birch Bayh:

On May 4, 1970, I was in command of Company A, 145th Infantry, of which 54 men were involved in the “skirmish line.” It was through my men that Terry Norman returned after the shooting incident…. Although I did not personally apprehend him, the incident came immediately to my attention and I attempted to gather all the information I could on the matter. Without any formal investigative capabilities, I was only able to gather statements from my own men and tried to relate these to the official investigative bodies which I came in contact with. The FBI seemed to show no interest whatsoever in these statements whenever I reported them….

Along with his letter, Martin sent copies of several statements he had gathered from his troops. Days later, on August 3, Bayh held a press conference to talk about Martin’s letter and what he termed the “shoddy show” run by the FBI. Two hours later, J. Stanley Pottinger announced that the Justice Department would conduct “an additional investigation.”

For the next three months, the Justice Department slowly, and quietly, investigated. That September, Peter Davies’s book, The Truth About Kent State, initially written in response to a request from the Justice Department for information backing up a conspiracy among the guardsmen, was finally published. The tide seemed to be turning and people were hopeful that a real investigation might be on the horizon when, on October 20, Elliot Richardson resigned as part of the “Saturday Night Massacre.” To replace him, Nixon nominated Ohio’s Senator William Saxbe, a loyal friend of not only Nixon but, just as importantly, James Rhodes. Saxbe was not only a long-time National Guard commander, he had once been in charge of the Kent State-implicated 107th Armored Cavalry. In addition, Saxbe, by his own admission, was a long-time acquaintance of both generals Del Corso and Canterbury. When asked how he felt about the “additional investigation” into Kent State, Saxbe told reporters he was inclined to shut it down.

Before Saxbe’s confirmation hearings began on December 12, 1973. supporters of the Kent State investigation scrambled to convince senators that Saxbe must promise not to meddle in the on-going proceedings. While senators promised they would demand Saxbe recuse himself, everything seemed very unsettled as we waited for the confirmation hearings to get underway.

Then, amazingly, around 8:00 PM on December 11, the Justice Department announced it would convene a federal grand jury to investigate the Kent State shootings. In 1978, NBC reported that, when Nixon learned about this decision, he was so upset, he had to be “scraped off the wall with a spatula.” (one of my favorite images of Nixon, I must admit.)

The Grand Jury

The grand jury, so long sought, convened in Cleveland on December 18 under the supervision of Federal Judge Frank Battisti. The prosecutors subpoenaed a number of guardsmen who were finally compelled to give testimony under oath. In early February, leaks suggested that many of the men in Troop G – the men most implicated in the shootings – had taken the fifth amendment rather than testify. In late February, Adjutant General Sylvester Del Corso testified. Sixteen times, he was asked if the shootings were justified and sixteen times, he said “no.” Shortly before the grand jury completed their work, (at this point former, although soon to be elected again) Gov. Rhodes appeared, boasting that he was doing so on his own volition. While technically true, a few days later, the subpoena would have arrived.

On March 25, 1974, nearly four years after the shootings, the Justice Department presented its recommendations to the grand jury. Allegedly, they asked for a conspiracy indictment but the grand jury refused. But, four days later, they indicted eight guardsmen under Section 242 of the U.S. Code, a civil rights statute and the same one Justice Department Civil Rights Attorney Robert Murphy had recommended be used against the guardsmen immediately following the shootings. The indictments charged that the guardsmen

acting under the colors of the laws of the state of Ohio, aiding and abetting each other, did willfully assault and intimidate persons who were inhabitants of the State of Ohio … by willfully discharging loaded (weapons) at, over, into, and in the direction of (the victims), and did thereby willfully deprive said persons of the right secured and protected by the Constitution and the laws of the United States not to be deprived of liberty without due process of law.

The indicted eight were: Lawrence Shafer, James Pierce, William Perkins, James McGee, Barry Morris, Ralph Zoller, Matthew McManus, and Leon Smith. All, except McGee, had invoked their fifth amendment rights before the grand jury.

While many pundits cited the indictments as evidence that “the system worked,” those who had spent nearly four years struggling for some semblance of justice had another take on it. Peter Davies, who had given up most of his personal and professional life to struggle for justice, despite having no ties to Kent State, said wryly, “The system is supposed to work on its own.”

Eight Guardsmen Go on Trial

Seven months of legal motions followed the indictments. In addition to asking that the indictments be dismissed outright, the guardsmen’s attorneys challenged every statement ever made by the guardsmen to an investigative body, including the FBI, the Ohio Highway Patrol, the National Guard Inspector General, and the special Ohio grand jury. Without these, the government would have very little evidence tying any of the individuals to what happened that day. And, while Federal Judge Battisti ruled the statements properly taken, the proceedings to suppress them produced a few interesting new and interesting items, such as Ralph Zoller’s belief that the FBI “was more or less on our side.” Unfortunately for Zoller and the rest of the guardsmen, the statements they signed stated clearly at the bottom: “Anything you say may be held against you in a court of law.”

Battisti, however, did suppress the guardsmen’s after-action statements after Capt. Brent Robertson testified the Guard’s legal staff had instructed him not to tell them they had a right to remain silent. Many wondered whether this directive had been designed to insure that, should a trial ever occur, these statements would be ruled inadmissible.

The trial began October 29, 1974. It was immediately clear that the long sought justice might not be around the corner. After jury selection, one of the guardsmen’s attorneys announced “the jury was perfect.” Another joked that the jurors had “more goddamn guns than the National Guard!” Then, in his opening statement, prosecutor Robert Murphy announced there would be no new revelations during the trial, a statement that was, in itself, a revelation. Murphy then summarized the evidence that had been known by the Justice Department for four years: that there was no massive rush of students, no student shot within sixty feet, and only two students shot from the front.

During his opening statement, defense attorney C.D. “Gus” Lambros, representing Pierce, Zoller, and Barry Morris, painted the students as frenzied rioters with no constitutional right to be demonstrating and repeated the worn-out, but oft-stated, claim that the guardsmen were simply defending themselves.

Another defense attorney, Bernard Stuplinski, called the shootings “a regrettable tragedy” which “occurred not because of any action of these eight men but because of the action of other people.” Stuplinski hinted that the blame belonged on Rhodes, the commanding officers, and KSU administrators. Conveniently, none of them were on trial.

The final attorney for the defendants, Edd Wright, representing Leon Smith, echoed Lambros and then argued: “Leon Smith assaulted no one. He was assaulted himself.”

Murphy spent six days presenting evidence, calling 33 witnesses, including many of the students who had photographed the events of May 4. Murphy also called the nine surviving victims who described their activities that afternoon and their injuries. Murphy then introduced the Guardsmen’s statements to various investigative bodies.

As Murphy wound down his case, Battisti advised him on November 7 that he should have his closing argument ready the next day in case the defense attorneys moved to dismiss the charges. Battisti continued, “I might have something in writing.” The Akron Beacon-Journal noted that this was a highly unusual instruction since defense attorneys routinely ask to have charges dismissed at the end of the prosecutors’ case.

The next day, the reason for Battisti’s unusual recommendation became clear. Once Murphy rested his case, Battisti excused the jury. The defense, as expected, moved to dismiss. Battisti then asked Murphy to summarize what he believed he had proven. As Murphy went through his case, Battisti repeatedly challenged him about what constituted “specific intent.” When Murphy acknowledged they might have some disagreement on that issue, Battisti announced, “We really don’t have to go much further.” The judge then called the jury back in and read parts of the 18-page opinion he had prepared the night before. The important piece was brief and to the point:

The government has presented no evidence directly bearing on the intention of those Guardsmen … who fired weapons.

And, Battisti ruled, even if the government’s argument about specific intent was correct, they had still failed to prove the charges beyond a reasonable doubt. By law, he stated, he was required to dismiss the charges. After four and a half long years of pushing for a day in court, the lawsuit was over.

No guardsmen would be held criminally responsible for their actions on May 4.

Coming next: The victims sue in civil court.

Great job, kainah. Looking forward to the next installment!