Excerpted From: Laurie L. Levenson, Judicial Ethics: Lessons from the Chicago Eight Trial, 50 Loyola University Chicago Law Journal 879 (Summer, 2019) (166 Footnotes) (Full Document)
In September of 1969, eight defendants--known widely as the "Chicago Eight" charged with conspiracy and, in violation of the federal Anti-Riot Act, "individually crossing state lines and making speeches with intent to 'incite, organize, promote and encourage' riots." Though the substantive charges arose from the defendants' protests against the Vietnam War, the trial focused on a different type of contempt--contempt toward the court. The showdown between '60s radicals, their determined attorneys, and an authoritarian judge became a showcase for the critical lesson judges and the country must learn--the quality of justice depends not only on the laws themselves, but on those responsible for implementing the laws, especially our judges.
In the Chicago Eight Trial, the defendants--David Dellinger, Abbie Hoffman, Bobby Seale, Thomas Hayden, Jerry Rubin, Rennard Davis, John Froines, and Lee Weiner--were considered "left-wing radicals" who opposed America's involvement in the Vietnam War. The charges brought against them resulted from a fervent and violent protest of the 1968 Democratic National Convention. On the first day of trial, seven of the eight defendants--all but Bobby Seale--immediately set the contentious tone when they declined to stand for the judge. At that moment, those defendants previewed how they would transform the courtroom into "a circus" in protest of the judicial and political systems of the United States. From bringing "a birthday cake to court on the judge's birthday" to displaying the Vietnamese flag, the defendants would make every effort to ensure a boisterous and unforgettable trial. On the other hand, Bobby Seale, National Chairman of the Black Panther Party, quickly stood out from the rest of the group. Though all of the defendants acted contemptuously in their own respects, Bobby Seale served as an especially profound disturbance to the judge. After recurring courtroom outbursts, which led to his being bound and gagged, Seale was severed from the case and sentenced to four years in prison for contempt of court.
Presiding over the case was the controversial Judge Julius J. Hoffman. One commentator, who observed Judge Hoffman's courtroom before and during the Chicago Eight Trial, described the Judge's demeanor: "He was just as ready and salty of tongue and just as domineering and just as enjoying of himself when he felt himself looking good and winning, as he would be in the [Chicago Eight] Trial." Judge Hoffman, embraced by federal prosecutors because of his vehement support for the United States government, portrayed himself as a "keeper of the gate of culture against the counterculture." Moreover, his keen awareness of the public scrutiny of his role, both in previous cases and in the Chicago Eight Trial, ensured that he would maintain the perception of control in his courtroom. However, Judge Hoffman was ill equipped for such a political trial, choosing to adhere to his own code of authoritarianism and admonition rather than the judicially upstanding position with which he was tasked to embody.
Ultimately, Judge Hoffman was criticized by the Seventh Circuit Court of Appeal for several of his actions, which seemed to proliferate once he allowed his personal opinions and biases to invade the courtroom. The Seventh Circuit found that Judge Hoffman's personal entanglement in the trial was so significant that all impartiality had been eroded, ultimately requiring the reversal of all convictions.
The Chicago Eight represented nonconformance and individuality. Though often regarded as "disrespectful and contemptuous," the defendants were adamant that they would not be passive casualties of the American judicial system. In the end, their passion and perseverance led to their success. Simply put, "the personalities overpowered the issues." Accordingly, Judge Hoffman's courtroom is best remembered not only for the political issues that were raised, but for Judge Hoffman's failure to rise to the challenge of ethically and responsibly controlling the trial.
Perhaps no one could have controlled the chaos of the courtroom, but Judge Hoffman failed spectacularly in his efforts to do so. His actions and inactions provide an important case example showing the need for clear codes of judicial conduct. In the heat of the moment, judges, like lawyers, must be guided by standards, not ego.
Sadly, there are still too many judges with Judge Hoffman tendencies. In November 2018, a Pennsylvania judge was removed for her gratuitously sarcastic and disparaging statements about defense counsel. At nearly the same time, a New York judge told a litigant that he "symbolizes everything that's wrong with the world," and a Wisconsin judge threatened to hold in contempt and incarcerate an assistant public defender for "acting like [the judge was] some kind of idiot." Judges acting injudicious does not occur exclusively in high-profile cases. It also happens to everyday litigants and, now, on different platforms. Social media sites have opened the avenues for judges to launch their vitriol.
A key reason to revisit Judge Hoffman's behavior in the Chicago Eight Trial is so that we can appreciate why it was critical to establish codes of conduct for judges and to recommit to enforcing those codes. Therefore, after examining the trial and Judge Hoffman's background, this Article focuses on the evolution of ethical standards addressing when a judge should recuse himself for having a bias in a case. Judge Hoffman had an agenda for the trial; the ethical rules require the exact opposite. Judges must remain impartial, and if they cannot, they must not judge a case.
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"This is the way my generation was taught."
Sometimes it takes a high-profile matter to shine the light on problems in our criminal justice system. Overly authoritarian judges who become personally involved in a case is not a problem that ended with the Chicago Eight Trial. It is a problem that continues to this day. Federal judges may be independent, but having codes of behavior for everyone in a courtroom-- including the judge--is not contrary to creating a strong and independent judiciary. In fact, improving standards of conduct is likely to lead to more respect and power for the bench. It is also likely to ensure better protection of individuals' constitutional rights.
Judge Hoffman was the wrong judge for the wrong case. When a case becomes a spectacle, a judge must know how to take control without becoming an autocrat. The best judges are not those who use their contempt power to show who is boss. The best judges are those who do not need to use their contempt power to afford both sides a fair trial.
Arming judges with an explicit code of behavior allows them to choose options other than those used by Judge Hoffman without fear that they will be perceived as weak. This move might be particularly important as the bench becomes more diversified. The angry father figure need not be the current symbol of a good jurist. Men and women from different backgrounds bring a different style of communication. Thank goodness that Judge Hoffman showed us how judges should not act. It is now time for the judiciary to create and abide by standards that will guarantee that the madness and injustice of that trial is never repeated.
Professor of Law & David W. Burcham Chair in Ethical Advocacy, Loyola Law School, Los Angeles.
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