vol. 33, no. 12

merican

Civil Liberties

~ Union

Volume XXXIII

SAN FRANCISCO, DECEMBER, 1968

No. 12

S.F. Presidio "Mutiny"

Appalling

Conditions at

Stockade

Private Richard Bunch, an inmate of the Presidio Stock-

ade with a long history of emotional turbulence, was shot

to death on October 11, 1968. Bunch was killed while al-

legedly attempting to escape. A note left behind by Bunch

suggested that his escape was feigned-a deliberate attempt

to draw lethal fire from a shot-

gun guard. The motive? To have

the army participate in his sui-

cide.

Prisoners Sit Down

Bunch's killing did nothing to

alleviate the fears and frustra-

tions of an already disgruntled

inmate population. On the Mon-

day following the Bunch killing

the inmates lined up in their

customary morning formation.

But when the first name of the

roll was called, twenty - seven

prisoners did something uncus-

tomary. They stepped from the

formation and walked to a grassy

area where they sat down and

began singing "freedom" songs.

Singing and Chanting

For the next hour they con-

tinued their singing and chant-

ing, augmenting it occasionally

by lifting their hands to reveal

fingers raised to form a "V."

They also called out names of

persons they wanted to see. They

chanted "We want Hallinan," (a

yeferente io San Francisco at-

torney Terrence Hallinan), `we

want the press" and "we want

Lamont," the latter a reference

to Captain Robert Lamont, Com-

mandant of the Presidio.

Grievances

Their last wish was the only

one to come true, Captain La-

mont arrived about half-way

through the demonstration.

When Lamont appeared one of

the prisoners arose and attempt-

ed to read a list of grievances

that the prisoners wanted recti-

fied. They included requests

that guards at the Stockade be

rotated more frequently; guards

be given psychiatric examina-

tions; racial discrimination end

at the Stockade; the over-crowd-

ed conditions be eliminated; the

sanitary facilities in the Stock-

ade be improved; shot-gun work

details be abolished and that

there be a thorough investigation

of the Bunch killing.

Mutiny Act Read

Lamont refused to listen to

the grievances and instead, ac-

cording to him, read to the pri-

soners from Article 94 of the

Uniform Code of Military Justice.

Article 94 is the "Mutiny Act."

The prisoners continued their

singing and chanting while La-

mont read and it was apparent

to him that he could not be

heard. He then addressed the

prisoners over a_ loudspeaker,

read the Mutiny Act again and

ordered the prisoners to return

to the Stockade barracks. The

prisoners maintain that they did

not hear the Mutiny Act and

that they did not hear the order

given by Lamont. There is no

dispute that the prisoners did

not return to the Stockade build-

ing until escorted there by the

Military Police.

Capital Offense

The result of the demonstra-

tion is that 27 Stockade prisoners

have been charged with a capital

offense, mutiny, because, accord-

ing to the complaint, they "act-

ing jointly and in pursuance of

the common intent, with intent

to override lawful military au-

thority, did, at the Fresidio of

San Francisco, California, on or

about 14 October 1968, refuse in

concert to obey the orders of

Captain Robert S. Lamont to

enter the Stockade .. ."

Pre-Trial Hearing

. The incident of October 14 and

the events that led up to it were

the focus of a military pre-trail

hearing that lasted for over a

week. ACLUNC staff counsel]

Paul Halvonik participated in

that hearing as attorney for

Nesrey Sood, one of the accused.

ACLUNC is participating in the

defense of the "mutineers" be-

cause of a continuing concern

over conditions in the Stockade,

because the severity of the

charge strongly suggests that the

Army is attempting to stifle free-

dom of expression and because

the charge itself, disobeying an

order "with the intent to over-

ride military authority" is a

yaguc and wholly `msypropriste

charge.

The week-long hearing con-

cerned 17 of the 27 accused. The

prisoners, other than Sood, wers

represented by San Francisco

attorneys Terrence Hallinan,

Howard Anawalt, Howard Engel-

skirschen and military counsel:

Captains Tom Fay, Emmett

Yeary and Joe Choate.

No testimony was put on by

the defense at these hearings.

The testimony of the Stockade

personnel, however, established

that the conditions in the stock-

ade have been insufferable and

that the grievances the demon-

strators attempted to bring to

the attention of the army were

well founded. The army's testi-

mony showed that:

Filthy and Overcrowded

For the 56 days preceding the

demonstration the Stockade had

been so overcrowded that it was,

under army regulations, in

"emergency" status. Those same

army regulations require that

an emergency status exist for no

longer than seven days. In the

weeks preceding the demonstra-

tion the Stockade inmates were

receiving insufficient food. Testi-

mony varied on the precise num-

ber of rations being drawn and

the precise number of prisoners

incarcerated during that period

but it is clear that rations for

less than one hundred men were

distributed among a population

of over 120 men, The sanitary

conditions were unspeakable.

There are an insufficient number

of latrines in the Stockade and

those that exist are often un-

usable. One guard testified that

the latrines became so stopped-

up that he observed human ex:

crement floating in the showers.

Guards Poorly Screened

' The screening of the Stockade

guards was also revealed to be

less than adequate. There is, ac-

cording to the testimony of a

guard supervisor, a guard on

duty at the Stockade who treats

black prisoners in a racially dis-

-Continued on Page 2

- composed of Harper,

25 Long-Haired

P.O. Employees

May Be Fired

The San Francisco Post Office

is turning down long-haired and

shaggy bearded applicants for

employment. Under recent de-

partmental regulations an em-

ployee must "be neat and clean

in his appearance and _ habits.

Hair-and beards and mustaches,

if worn-must be kept neatly

-trimmed and clean."

Bruce Overton, 19, was re-

cently accepted for a postal job

at the San Francisco Airport and

then turned down because of his

long hair. He was instructed to

have it cut, but when he reap-

peared with his hair above the

collar Mr. Yarberry informed

him that his hair had to con-

form to styles worn by police-

men. (The San Francisco police

department has no regulation on

the subject, according to the

local press). On the other hand,

Charles W. Harper, director of

management and procedures for

Postmaster Lim P, Lee was

quoted in the press as saying

that he had no objections to long

hair "as long as it isn't too long

. say, above the collar and

neatly trimmed." That's the way

Overton appeared but he was

turned down anyway and chose

to return to his home in southern

California,

Some 25 employees at the San

Francisco Post Office who pres-

ently have long hair and/or

beards are threatened with dis-

ciplinary action unless they cut

their hair and beards. Postal

station superintendents must de-

termine "if the employee's hair,

vearad ad musiache are meatiy

trimmed." From there an ap-

peal lies to the superintendent

of city delivery and finally to

the Appearance Review Board

Charles

O'Donnell, director of operations,

and Joseph Palanshek, director

of installations.

At this point, the Post Office

has merely made threatening

noises. No case has gone to the

Appearance Review Board.

Civil Disobedience

Disappointing Decision

lig

Court Upholds

Death Penalty

The 4-3 decision of the State Supreme Court upholding

the death penaliy as administered in California was a great

disappointment. Expectations of a favorable result grew as

the months passed. The suit was filed in the State Supreme

Court on October 12, 1967; the decision was rendered on

November 18, 1968.

There are, however, some con-

solations. Because of the suit no

executions occurred during the

period when the matter was be-_

fore the Supreme Court and the

death penalties of Anderson aN

Saterfield were reversed. They

were reversed on the ground that

the juries. which imposed the sen-

tences of death were "hanging

juries" from which all persons

opposed to the death penalty had

been excluded. The U.S. Supreme

Court recently held, in Wither.

spoon v. Illinois, that hanging

juries are constitutionally im-

permissable, a decision that did

not occur until long after

ACLUNC and the Legal Defense

Fund had intervened on behalf

of Anderson and Saterfield; if

we had not intervened they would

probably have been executed be-

Sonoma County

Council Granted

Chapter Status

The Sonoma County Council,

created in the Fall of 1966, was

granted Chapter status by unani-

mous vote of the Branch Board

of Directors on November 14th.

The new Chapter has a mem-

bership of 200, and a strong pool

of active werkeors, Four public

meetings have been held by the

Council, notably the September

`meeting featuring Dr. Spock at

which the community was ap-

praised of the state of Civil Lib-

erties and the Draft, and funds

were raised.

Now that Sonoma has been

granted Chapter status, there are

eleven Chapters of the American

Civil Liberties Union of North-

ern California.

ACLU Prevails in Teaching

Credentials Cases

The Credentials Committee of the California State Board

of Education is re-examining the credentials of all teachers

and applicants for teaching credentials arrested in connec-

tion with political demonstrations. Six of the teachers have

recently sought help from ACLUNC; more are expected.

Three cases were successfully

concluded last month. Martin

Ponch and Paul Obluda of San

Francisco, both active in the War

Resisters League, appeared at in-

forma] hearings on November 18

and 19 and persuaded the Com-

mittee on Credentials to drop

further proceedings against their

credentials. Mrs. Toby Hendon,

whose application for a creden-

tial has been delayed, was told

after a hearing that her creden-

tial would be granted.

Induction Center Arrests

- All three had been arrested

during demonstrations outside

the Oakland Induction Center.

The three were represented at

the hearings by. ACLUNC assis-

tant staff counsel Charles Mar-

son.

Three similar cases will soon

be heard. They concern Genevi-

eve McDonald of South San

Francisco, Susan Roberts of Ber-

keley, and Alvin Wasserman of

San Anselmo. 0x00B0

At the hearings, the members

of the Credentials Committee ex-

pressed concern that one who

disobeys "authority" in the

streets by engaging in an act

of peaceful civil disobedience

might disobey school authorities

as well. The logic of this con-

cern was not discussed.

Moral Turpitude

In Hallinan v. Committee of

Bar Examiners (1966) 65 Cal.

2nd 447, the Committee of Bar

Examiners had refused to certify

Hallinan, who has been arrested

six times and convicted twice on

misdeameanor charges arising

out of "sit-ins". The court re-

versed the Committe and ordered

it to certify Hallinan as quali-

fied to practice law, stating:

"We do not believe that peti-

tioner's participation in the civil

disobedience here shown can be

characterized as involving moral

turpitude. If we were to deny

every person who has engaged in

a `sit-in' or other form of non-

violent civil disobedience, and

who has been convicted therefor,

the right to enter a licensed pro- -

fession, we would deprive the

community of the services of

many highly qualified persons of

the highest moral courage. This

should not be done."

fore Witherspoon was decided.

Additionally, the Court held

that in the future all condemned

men will be given court-appoint-

ed counsel to pursue their legal

claims up to the moment they

are executed or are released from

death row. We had advanced this

right to counsel as a constitution-

al right, the court adopted it as

a matter of "policy." When the

litigation began a condemned

man had no right to counsel after

his conviction was affirmed by

the State Supreme Court; during

the last session of the Legislature

a bill sponsored jointly by

ACLUNC and the Friends Com-

mittee on Legislation extended

the right to counsel to review in

the United States Supreme Court;

now a condemned man will also

have counsel for habeas corpus

proceedings in the state and

federal courts, for clemency hear-

ings and for sanity hearings,

Constitutional Issue

But we did lose on the most

significant issue: the constitution-

ality of the death penalty, Where

the litigation will continue has

not yet been decided. The United

States Supreme Court and the

Federal District Court are the

two fora now available. The

death penalty challenge began

as a Federal District Court suit;

it was returned to the State court

under' a Federal court order re-

quiring the petitioners to `"ex-

haust their state remedies."

Those remedies have been thor-

oughly exhausted and suit is still

pending in the Federal court.

One thing is clear: before anyone

is again executed in California -

the Federal courts will have to

decide whether California's

death penalty meets constitution-

al standards.

The lawyers for Anderson and

Saterfield are Paul Halvonik for

ACLUNC, Anthony G. Amster-

dam for NAACP/LDF and volun-

teer attorneys Jerome Falk, Gary

Berger, Roy Eisenhardt and Har-

ry Kraemer,

High Court

Hears Student

Armband Case

The U.S. Supreme Court last

month heard oral arguments in

the cases of three Des Moines,

Iowa, public school students who

were disciplined for wearing

black armbands to schoo] in De-

cember 1965 to express their

views about the Vietnam war.

They said they wore them to

mourn the dead and to support

a proposal to extend the Christ-

mas truce,

The case raises important free-

dom of expression issues for

public school children. If the

educational process is not inter- .

fered with and there are no dis-

ciplinary problems, may school

administrators limit the freedom

of students?

A couple of months ago the

court refused to hear a Dallas

case which challenged the right

of school officials to bar stu-

dents with long hair. In Cali-

fornia, the lower courts have

ruled against students in such

cases. In the Gregor Myers case

from Arcata, in which a student

was suspended for violating a

regulation prohibiting "extreme"

haircuts, a decision of the State

District Court of Appeal is being

awaited,

State College Project

Sacramentans

Oppose Bill of

Rights Petition

A large group of Sacramento State College freshmen

fanned out over Sacramento recently to seek endorsements

of a petition titled "Americans in Support of Civil Liberties."

The 130 students, members of an anthropology class, con-

tacted more than 7,500 persons from Capitol Park to Sierra

Oaks to Del Paso Heights to re-

quest signatures on the following

petition: :

The Petition

"We, the undersigned residents

of Sacramento County, believe

that all federal, state and local

officials should be required to

conform to each of the following

rules: cent

"1. The right to trial by jury.

"2. The right of the people to

freedom of the press, freedom

of speech, the right to peacefully

assemble and the right to peti-

tion.

"3. No person shall be tried

twice for the same offense, nor

compelled to testify against him-

self, nor be deprived of life or

liberty without due process of

law.

"4, An accused person has the

right to a speedy trial, to be in-

formed of the charges against

him and to have the assistance of

a lawyer in his defense.

"5. Excessive bail should not |

be required nor excessive fines

be imposed.

"6. No person shall be de-

prived of his rights on the basis

of his race, color or religion."

Two Out of Three Refuse

Of the 7,600 persons: contacted,

more than 5,000 refused to en-

dorse these principles. These in-

cluded a state legislator who

looked at No. 2 and said, "I'm

opposed to it. All it does is per-

mit riots and demonstrations."

Many balked and declined to

read further when they saw the

words "Civil Liberties" in bold

print in the petition title, appar-

ently suspicious of the term.

The six "rules" they seeming-

ly refused to go along with are,

of course shortened versions of

Articles 1, 5, 6, 7 and 8 of the

U. S. Bill of Rights, plus a para-

phrase of the 14th Amendment to

the U. S. Constitution.

Objections

The reasons given for not sign-

ing the petition, the students re-

ported, included these:

"If you really want this kind

of thing, why don't you try to get

on the ballot?"

"Ym patriotic. I don't want

to get involved in this type of

thing."

"You should be in jail: your

whole organization should be

put in jail for distributing this

kind of material."

"T don't believe in that sort of

thing." !

Man in front of the police sta-

tion: "I'm not going to sign.

There are too many rights al-

ready."

"There's too much welfare al-

ready."

Communistic

Husband and wife, both school

teachers: "This is communistic

and anti-American. Are you being

paid to circulate this?

"Ym in the military. I can't

support this type of thing."

"Tf I sign this and my boss

sees it, I could get in trouble."

"T can't sign this. I'm a conser-

vative Republican."

"This sounds like John Birch

Society stuff."

"T ean't sign. I wouldn't make

a good hippie."

"Yd better not sign until my

husband has a chance to read

it

ACLU NEWS

DECEMBER, 1968

Page 2

Not Practical

Lobbyist at the Capitol: "I

couldn't sign. These things are

not practical. They won't work."

"Youwre crazy."

"Go to hell."

"T think it's too ambiguous."

"All this is just an excuse to

riot."

Negro woman in Del Paso

Heights: "I could sign, but I don't

want people throwing stones at

my house or burning it down."

Campaign Headquarters

Nobody at Nixon campaign

headquarters would sign. Wal-

lace headquarters hedged, then

called on the area chairman who

signed. Several signed at Hum-

phrey headquarters (somebody

there had prior knowledge of the

petition project).

The students who discussed

the project in class the other

day, said many non-signers, es-

pecially government workers and

professional people, indicated

they were hesitant for fear their

jobs, careers or positions in the

community could be affected by

signing what might be seen as

a "radical" petition.

Others were cool to the whole

idea, suspecting it might be the

work of a radical group with

whom they might become identi-

fied. ;

Some Enthusiasts

But there were some enthusi-

asts, including an elderly man

who put down a load of books,

put on his spectacles, read it

carefully and said, "I really be-

lieve in all this." Some recog-

nized the principles and signed;

others recommended neighbors

who could be expected to sign.

The project was directed by

Asst. Prof. Howard P. Goldfried

of the SSC Anthropology De-

partment, who concluded:

"This raises an extremely seri-

ous question: You can legitimate-

ly ask just how politically edu-

cated and politically aware the

voters are. Democracy can func-

tion only if you have an educated

electorate. This kind of thing

questions whether we have one."

-Column by Art McGinn, Look-

ing Around, Sacramento Bee,

November 15, 1968.

Berkeley

S.F. Presidio Unethical Practices

Charges Made

Against Asst.

U.S. Attorney

The ACLU last month charged the United States Attor-

ney's office and Asst. U.S. Attorney Jerrold Ladar with un-

ethical practices. The complaint involved the seizure by the

F.B.I. of the passport of a young lady, J.M., 26. The passport

was in the young lady's luggage which was stored in the

`Mutiny' Case

Continued from Page 1-

criminatory manner. Guards

have, without provocation and in

violation of army regulations,

pointed their weapons at prison-

ers. Guards have also indulged

in "horseplay" with firearms.

On one occasion a gun was dis-

charged during "horseplay" and

a hole was shot in the ceiling of

a building near the Stockade.

Suicide attempts have been oc-

curring at the Presidio at a rate

of about five per month. The

army dismisses these attempts as

mere "gestures." In one such

gesture a man slit his throat,

was taken to the hospital where

his wound required numerous

stitches and was returned that

same day to a Stockade isolation

cell. The isolation cell painted

black, contained no toilet, nor

was there any place to sit or lie

other than an iron grating placed

against the wall.

Tale of Violence

The level of compassion for

the inmates may be measured

by the actions of a guard super-

visor during the period between

_the Bunch killing and the de-

monstration.The chief topic of

conversation among the prisoners

was, quite naturally, the killing

of Bunch and the guard super-

visor took that opportunity to

tell the men that he, personally,

had killed a Vietnamese woman

by shooting her three times in

the stomach with a pistol. At

the hearing the guard supervisor

insisted that he had not in fact

shot a Vietnamese woman. He

could give no reason for telling

the prisoners that story at such

a critical time. .

ACLUNC has taken the posi-

tion that there was no mutiny at

the Stockade on October 14.

1968. The prisoners conducted a

peaceful and nonviolent demon-

stration to secure a hearing for

grievances that were substantial;

their demonstration was the only

manner in which they could peti-

tion for a redress of their griev-

ances. ACLUNC has suggested

that the Army drop its `charges

of mutiny and, instead, rectify

the Stockade conditions that led

to the demonstration.

crossed the thousand mark and,

after the first membership cam-

paign in 1952, the membership

jumped from 1855 to 3029.

Membership

Figures -

During the past ten years the

ACLU membership has climbed

from 4078 to 7629 on October

31, 1968.

Established in September 1934,

the branch membership grew

slowly. After ten years, it stood

at only 742. In 1946 it finally

`State of

Emergency' Cases Dismissed

ACLUNC's attack on the constitutionality of the Berkeley

ordinance which permits the City Manager to declare "states

of civil emergency" and the challenge to the constitutionality

of "regulations" adopted pursuant to that ordinance during

two separate occasions in Berkeley this past summer, con-

tinues to be thwarted by victory.

The promulgation of the first

state of emergency imposed a

curfew throughout the city of

Berkeley. The promulgation dur-

ing the second emergency pro-

hibited "loitering" and banned

all public meetings. When the

second "state of emergency" was

promulgated ACLUNC and its

Berkeley-Albany chapter brought

suit in the Federal District Court

to enjoin enforcement of the or-

dinance and the "regulations"

prohibiting loitering and bann-

ing public meetings. Before the

federal court suit could be heard,

however, the Berkeley City Coun-

cil, on recommendation of the

City Manager, rescinded the

"regulations."

The battle then shifted to the

Berkeley Municipal Court where

ACLU defended persons arrested

for violating the rules and regu-

`lations.

Both sides filed extensive

briefs on the constitutionality of

the ordinance and the regula-

tions. ACLU took the position

that they were all unconsitution-

al on their face. The Berkeley

city attorney took the position

that the ordinance and the rules

adopted pursuant to it should not

be read "on their face' but

should be interpreted to prohibit

only "loitering" and public meet-

ings that "endangered life or

property." The district attorney

took the position that if the

City's interpretation of the regu-

lations was adopted, no case

could be proved against the de-

fendants.

Berkeley Municipal Judge

-Continued on Page 4

basement of the Richmond home

of a couple whom she knew only

casually. The F.B.I. searched the

place for contraband and assert-

edly found explosives, but they

also searched the lady's posses-

sions and seized her passport.

When the lady sought her be-

longings and discovered that the

F.B.I, had seized her passport

she telephoned Agent Jones, 2118

Milvia St., Berkeley. He readily

admitted he was holding her

passport.

Intimidation

As the young lady put it, Mr.

Jones "came on very strong."

She teld him she was after her

passport, and he wanted to know

where she was. She told him

she'd like to pick up the pass-

port and that she'd be in on Fri-

day. "Oh, no," he responded,

"we're not going to wait until

Friday; you'll come in now!" She

protested that she was ill and

could not come in until Friday.

Then he wanted to know who her

doctor was because they would

have to check her asserted ill-

ness. "If you don't come before

Friday, we will come to get you,"

Jones is reported to have said.

"You have to clear yourself!"

The lady had no objection to

talking with Jones, but because

of her indisposition she wasn't

prepared to do so before Friday.

Because of his insistence, how-

ever, she contacted the ACLU.

ACLU Intervenes -

Ernest Besig telephoned Jones

and demanded that he return the

lady's passport because it was

seized illegally. Jones wanted to

know where the lady lived but he

was told this information would-

n't be given; that the passport.

could be returned through the

ACLU office.

Agreement Made

Later, Jones called Besig and

said that the passport was being

sent to the office of Asst. U. S.

Attorney Jerrold Ladar and that

he could telephone Mr. Ladar

about it. Besig did telephone La-

dar who stated his willingness to

return the passport if he could

serve a subpoena upon the lady

to testify before the Federal

Grand Jury. Besig said that was

agreeable with him and that he

would arrange for the lady's ap-'

pearance at the U. S, Attorney's

office. It was finally agreed to

meet at the U. S. Attorney's of-

fice in San Francisco at 10 a.m.

on Friday, November 8.

Residence Sought

The lady appeared with a

friend and Mr. Besig and Mr.

Ladar presented himself at the

counter with an F.B.I. agent

whom he introduced as Mr. Hen-

nesey, Mr, Ladar then asked the

lady where she lived. Besig in-

structed her not to answer the

question because it would lead to

more F.B.I, harassment. Ladar ~

then wanted to know whether

Besig was a member of the Cali- |

fornia bar, and he responded by

: saying that. it didn't make any

difference. He nevertheless in-

sisted and besig stated he was

a member of the New York bar.

-Continued on Page 4

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California

Second Class Mail privileges authorized at San Francisco, California

ERNEST BESIG .. . Editor

503 Market Street, San Francisco, California 94105, 433-2750

Subcription Rates - Two Dollars and Fifty Cents a Year.

Twenty-Five Cents Per Copy

Ralph B. Atkinson

Albert M. Bendich

Leo Borregard

Rey. Hamilton Boswell

Price M. Cobbs, M.D.

Prof, John Edwards

Robert Greensfelder

Rey, Aron S. Gilmartin

Evelio Grillo

Mrs. Zora Cheever Gross

Francis Heisler

Neil F. Horton

Howard H. Jewel

Gerald D. Marcus

Ephraim Margolin

Honorary Treasurer:

Joseph $. Thompson

Honorary Board Member:

Sara Bard Field

Mrs. Gladys Brown

Mrs. Paul Couture

Mrs. Margaret C. Hayes

Prof. Carlo Lastrucci

John J. Eagan

Joseph Eichler

Dr. H. H. Fisher

Board of Directors of the American Civil Liberties Union

of Northern California

CHAIRMAN: Prof. Van D. Kennedy

VICE-CHAIRMAN: Rabbi Alvin !. Fine

Helen Saiz

SEC'Y-TREAS.: Howard A. Friedman

EXECUTIVE DIRECTOR: Ernest Besig

GENERAL COUNSEL: Wayne M. Collins

STAFF COUNSEL: Paul Halvonik -

ADMINISTRATIVE ASSISTANT: Mrs. Pamela S. Ford

Committee of Sponsors

Mrs. Paul Holmer

Mrs. Mary Hutchinson Prof. Wallace Stegner

Prof. Wilson Record

Prof. Ernest Hilgard Dr. Norman Reider

Dr. John Marquis

Martin Mills, M.D.

Robert L. Nolan, M.D.

Richard Patsey

Mrs. Esther Pike

Henry J. Rodriguez

Eugene N. Rosenberg

Mrs. Muriel Roy

John Brisbin Rutherford

Warren H. Saltzman

Mrs. Alec Skolinick

Stanley D. Stevens

Richard J. Werthimer

Justin Vanderlaan

Joe J. Yasaki

Dr. Marvin J. Naman

Mrs. Theodosia Stewart

Rt. Rev. Sumner Walters

Richard Johnston

Roger Kent

Mes. Ruth Kingman

Prof. Theodore Kreps

Seaton W. Manning

Rey. Robert W. Moon

Clarence E. Rust

Prof. Hubert Phillips

Norman Lezin

Majority Opinon-Justices

Burke, Mosk and Sullivan

The issue here presented is

whether the death penalty and

the procedures following in im-

posing it are constitutional, and

not whether it -should be re-

tained or abolished in California.

Retention or abolition raises a

question of legislative policy

which under our system of divi-

sion of powers falls within the

competence of the Legislature or

the electorate.

A jury found Frederick Sater-

field guilty on two counts of

`first degree murder and fixed

the penalty on each count at

`death; the judgment was af-

firmed . . . A jury also found

Robert Page Anderson guilty of

first degree murder, attempted

murder of three other men, and

first degree robbery, and fixed

the penalty at death for the mur-

der; the judgment was affirmed.

Saterfield and Anderson now

seek habeas corpus on the

grounds that (1) it was improper.

to excuse for cause veniremen

conscientiously opposed to the

death penalty; (2) Penal Code

sections 180 and 190.1 are un-

constitutional because they con-

tain no standards to assist the

trier of fact in determining

whether to impose death or life

imprisonment; (3) the death pen-

alty, per se and as applied, con-

stitutes cruel and unusual pun-

ishment; and (4) petitioners

have been denied their right to

counsel in post-state-appeal pro-

ceedings. We issued orders to

show cause and pending final de-

termination of the instant pro-

ceedings stayed all judgments of

death in California... .

We hold that the death penalty

is constitutional and does not

constitute cruel or unusual pun-

_ishment, that Penal Code sec-

tions 190 and 190.1 are valid, and

that in keeping with a newly

declared policy of this court, pe-

titioners, and all other indigent

defendants in capital cases, in

the interests of justice, will be

afforded the services of counsel

in all proceedings between the

termination of their state appeals

"and `their execution: We have

further concluded that under the |

compulsion of the June 3, 1968,

decision of the United States Su-

preme Court in Witherspoon v.

Illinois, 391 U.S. 510, the death

penalties in the two cases now

before us must be set aside be-

cause certain prospective jurors

were improperly excused for

cause. It is necessary, therefore,

that petitioners be remanded to

the trial courts for new trials

limited to the issue of penalty.

Excusing Veniremen Opposed

To Death Penalty

Petitioners argue that excus-

ing for cause veniremen con-

scientiously opposed to the death

penalty deprived them of a jury

which fairly represented a cross

section of the community and

tended to assure the state a jury

whose members were favorable

to the prosecution at each phase

of the trial, At Saterfield's trial

two prospective jurors and two

prospective alternate jurors were

excused for cause on the ground

of their opposition to the death

penalty. Likewise at Anderson's

trial seven prospective jurors

and one alternate juror were ex-

cused for cause on that same

ground.

At each trial one or more of

the prospective jurors excused

on that ground did not make it

"unmistakably clear (1) that

{he} would automatically vote

against the imposition of capital

punishment without regard to

any evidence that might be de-

veloped at the trial...

that [his] attitude toward the

death penalty would prevent

{him} from making an impartial

decision as to the defendant's

guilt," as mandated by the With-

erspoon decision . . . For exam-

ple, at Saterfield's trial one pros-

pective juror stated, "I am op-

posed to the death penalty," and

was thereupon excused for cause;

at Anderson's trial one prospec-

tive juror in response to the ques-

tion "Do.you know of any reason

you couldn't be a fair and impar-

tial juror in this case?" replied,

"Yes, sir, I do. I don't believe

or (2) -

in capital punishment" and was

immediately excused for cause.

In neither instance had the court

made it clear to that particular

prospective juror that opposition

to the death penalty or conscien-

tious scruples against that pen-

alty would be insufficient by it-

self to disqualify such a juror

from serving. This is not sur-

prising, because the trials pre-

ceded the decision of the United

States Supreme Court in Wither-

spoon v. Illinois, supra, 391 U.S.

510, which sets forth new rules

that the states are not only com-

pelled to follow but must apply

retroactively.

Witherspoon held "that a sen-

tence of death can not be carried

out if the jury that imposed or

recommended it was chosen by

excluding veniremen for cause

simply because they voiced gen-

eral objections to the death pen-

alty or expressed conscientious

or religious scruples against its

infliction." Witherspoon further

stated that "No defendant can

constitutionally be put to death

at the hands of a tribunal so

selected" but that "nothing we

say today bears upon the power

of a State to execute a defendant

sentenced to death by a jury

from which the only veniremen

who were in fact excluded for

cause were those who made un-

mistakably clear (1) that they

would automatically vote against

the imposition of capital punish-

ment without regard to any evi-

dence that might be developed

at the trial of the case before

them, or (2) that their attitude

toward the death penalty would

prevent them from making an

impartial decision as to the de-

fendant's guilt."

Witherspoon, therefore, re-

quires us to set aside the death

penalties imposed on petitioners

and to have the issue of penalty

retried; 5 = 3.

Witherspoon left undecided

the question whether the exclu-

sion of veniremen opposed to

capital punishment necessitates

setting aside the judgment as to

guilt . . . In the instant case

petitioners made a motion for

an evidentiary hearing regarding

their claim that the exclusion of

veniremen opposed to capital

punishment results in an unrep-

resentative jury on the issue of

guilt and substantially increases

the risk of conviction. We denied

the motion in December 1967.

Petitioners have again requested

such a-hearing and ask that we

reconsider the matter in the

light of Witherspoon. They state

that they, have arranged with

Louis Harris and Associates to

conduct a described study ...

They further state that the Har-

ris study has not yet been fin-

ished and that preparation for an

evidentiary hearing will require

"several more months-at the

least." ... ". .. we cannot sus-

pend the judicial process until

projected studies are made at the

behest of a litigant... ."

Penalty Discretion: Standards

Petitioners further contend

that Penal Code section 190 and

190.1 violate the due process and

equal protection clauses of the

United States Constitution be-

cause those sections, allegedly

without specifying any standards,

impose on the trier of fact the

duty of selecting the penalty. It

is asserted that the absence of

standards prevents a defendant

from knowing how to defend

himself at the penalty trial, per-

mits the trier of fact to impose

the death penalty for arbitrary

reasons, and precludes a mean-

ingful review of the penalty im-

posed. ...

This court has held repeatedly

that under section 190 and 190.1

the Legislature has entrusted te

the absolute discretion of the

trier of fact the awesome deci-

cision between life imprisonment

and death for first degree mur-

der ... and that the law does

not prescribe or authorize the

court to innovate any rule cir-

cumscribing the exercise of that

discretion - that the jury need

not find ameliorating circum-

stances to impose life. imprison-

ment, nor need they find aggra-

vating circumstances to impose

death....

Vesting in the trier of fact un-

guided discretion in the choice

of penalties for first degree mur-

der has long been characteristic

of the laws of the United States

and of many states, ... The

Legislature, by entrusting to the

absolute discretion of the jury

the decision between life impris-

onment and death has indicated

its belief that jurors understand

the factors that are relevant to

such a decision... .

It may be neither practicable

nor desirable that any rigid for-

mula control a trier of fact in

determining whether to extend

mercy by imposing life imprison-

-ment or to deny it by imposing

death. .. . But even if it were

practicable and desirable to have

such a formula it does not fol-

low that the Legislature's failure

to provide one renders the sec-

tions unconstitutional... .

_ No Delegation Of Legislative

Power To Jury

It is also asserted that Penal

Code section 190 and 190.1, as

presently construed and applied,

delegate to the penalty jury a

legislative function in a manner

that violates the section of the

state Constitution providing for

separation of powers. It is ar-

gued that the members of the

jury have been delegated legis-

`lative powers because they must

resolve basic policy questions

with regard to the type of pun-

ishment to be imposed, as op-

posed to the extent of punish-

ment to be imposed. ... The

same contention with regard to

a statute similar to ours was re-

jected by the Supreme Court of

Kansas in State v. Latham ...

Not Cruel Or Unusual

Punishment

It is next contended that for

various reasons the death pen-

alty for first degree murder con-

stitutes cruel and unusual pun-

ishment in violation of the

Eighth Amendment of the Unit-

ed States Constitution and sec-

tion 6, article I, of the California

Constitution,

Numerous cases have rejected

claims that the death penalty for

first degree murder constitutes

cruel and unusual] punishment

per se....

Petitioners urge us to recon-

sider the matter. They argue that

the death penalty is cruel and

unusual punishment because it

"inflicts the loss of life with-

out commensurate justification."

They assert that life is a funda-

mental right, that before the

state may restrict a fundamental

right it must demonstrate a

"compelling interest" in so do-

ing, and that to show such an

interest the state must establish

that (1) the restriction imposed

rationally relates to legitimate

governmental objectives sought;

(2) the benefit to the public far

outweighs the impairment of

the constitutional right, and (3)

no alternative means less subver-

sive of the constitutional right

are available. Petitioners assert

that the state's compelling inter-

est is the punishment of crimi-

nals, that the proper functions of

punishment are isolation, reha-

bilitation and deterrence, and do

not include retribution, and that

isolation and rehabilitation can

Excerpts From

Calif. Supreme

Court Opinions

In Death

Penalty Cases

(In re Robert Page Anderson and

In re Frederick Saterfield,

decided November 18, 1968.)

better be achieved by life im-

prisonment than execution, They

offer to establish at an eviden-

tiary hearing that the death

penalty is not a more effective

deterrent than life imprison-

ment...

"The fixing of penalties for

crime is a legislative function.

What constitutes an adequate |

penalty is a matter of legislative

judgment and discretion and the

courts will not. interfere there-

with unless the penalty pre-

scribed is clearly and manifestly

cruel and unusual." .. . In Trop

v. Dulles, 356 U.S. 86, which con-

cluded that denationalization for

wartime desertion constituted a

cruel and unusual punishment

within the meaning of the Eighth

Amendment, it was stated "[L]et

us put to one side the death

penalty as an index of the con-

stitutional limit of punishment.

Whatever the arguments may be

against capital punishment, both

on moral grounds and in terms

of accomplishing the purposes of

punishment-and they are force-

ful-the death penalty has been

employed throughout our his-

tory, and, in a day when it is

still widely accepted, it cannot

be said to violate the constitu-

tional concept of cruelty."

Petitioners further argue that

the death penalty is cruel and

unusual in that it is imposed

without standards and can be im-

posed regardless of extenuating

circumstances, The absence of

so-called standards has previous-

ly been discussed. It seems clear

that the death penalty, which has

been repeatedly upheld against

claims that it constitutes cruel

and unusual punishment per se,

does not become cruel or un-

usual as a result of the Legis-

lature's vesting in the trier of

fact discretion to extend mercy

to a convicted first degree mur-

derer....

A further contention is made

that the "anguish of the 1,000

day wait on death row and the

attendant deterioration of per-

sonality" renders the death pen-

alty cruel and unusual....A

similar contention was rejected

in People v. Chessman.

Basic Due Process Not

Violated

Amici next contend that, inde-

pendently of the constitutional

prohibition against cruel and un-

usual punishment, life is a fun-

damental right protected from

state interference absent a com-

pe'ling state interest, and they

argue at length that the state

cannot establish the existence of

such an interest. They also sug-

gest that under tests other than

that of a compelling state inter-

est the death penalty violates due

process. However, the fixing of

penalties for a crime is a legis-

lative function .. ., and we will

not nullify the legislative judg-

ment as to the appropriate penal-

ties for the heinous crime of

first degree murder. It is for

the Legislature and not this

court to decide whether it is

sound public policy to empower

the imposing of the death pen-

alty. :

Counsel For Indigent

Defendants

Petitioners further contend

that the due process and equal

protection clauses of the United

States Constitution confer upon

indigent defendants in capital

eases the right to appointed

counse] throughout the period

between the termination of their

state appeals and their execu-

tion. ..,

This court has determined that

the appointment of counsel to

represent indigent defendants in

capital cases in all. proceedings

between the termination of their

state appeals and their execu-

tion, such as petitions for cer-

tiorari, habeas corpus petitions

to state and federal courts, ap-

plications for executive clemency

and the conduct of sanity hear-

ings where indicated, will best

serve the cause of justice, the

interests of the defendants and

this court. Counsel will be ap-

pointed routinely in the future

in al] such cases as a matter of

policy.

In view of this policy no pur-

pose would be served by our giv-

ing further consideration to pe-

titioners' claims for the services

of counsel as a matter of right.

Such services will be furnished

these petitioners in keeping with

such policy in any such proceed-

ings in which they are not now -

represented by counsel... .

Concurring Opinion By Mosk, J.

I concur in the opinion of Jus-

tice Burke.

In my years as Attorney Gen-

eral of California (1959-1964), I

frequently repeated a personal

belief in the social invalidity of

the death penalty, notably in

testimony before the California

legislative committees in March

1959, July 1960, and April 1963.

Naturally, therefore, I am

tempted by the invitation of pe-

titioners to join in judicially

terminating this anachronistic

penalty. However, to yield to my

predilections would be to act

wilfully `in the sense of enforc-

ing individual views instead of

speaking humbly as the voice of

the law by which society presum-

ably consents to be ruled." ...

As a judge, I am bound to the

law as I find it to be and not as

I might fervently wish it to be.

I conclude that Justice Burke

has properly stated the current

law of California and of every

other American jurisdiction that

has considered the problem.

CONCURRING AND DISSENT-

ING OPINION BY TOBRINER,

J. {also signed by Chief Justice

Traynor and Justice Peters}.

I concur with the opinion of

Justice Burke insofar as it holds

that Witherspoon v. Illinois

(1968) 391 U.S. 510, requires

that we set aside the penalty

previously imposed in: the two

cases now before us. I agree that

indigent defendants in capital

cases should be entitled to ap-

pointed counsel throughout the

period between the termination

of their state appeals and their

execution. I submit, however,

that sections 190 and 190.1 of

the Penal Code of California vio-

late the Fourteenth Amendment -

of the Constitution of the United

States because they provide no

standards or tests whatsoever to

enable judge or jury to decide

why one convicted capital de-

fendant should die and another

should live. The California pen-

alty trial leaves this vital deci-

sion to the unguided whim and

caprice of the trier of fact; this

irrational process, the antithesis

of due process, has no place in

the constitutional structure of

American law. ...

Sections 190 and 190.1 permit

the judge or jury to decree the

random doom of death without

the restraining guide of reason.

Neither society nor the Legisla-

ture nor the courts have said

why one capital defendant

should be selected to die and

another to live. The death pen-

alty has been supported as a

punishment, a deterrent, a safety

valve for revenge, an economy

for the state, and on other

grounds, each of which has been

as hotly defended as it has been

-Continued on Page 4

ACLU NEWS

DECEMBER, 1968

Page 3

ae

Robert Mezey Case

Prof. Fired For

Views On Pot'

Robert Mezey held a position as Assistant Professor of

English at Fresno State College during the 1967-1968 aca-

demic year. Fresno State College President Frederic W.

. Ness, however, has decided not to retain Mezey for the cur-

rent academic year. Ness's decision was made over the

strenuous objections of the De-

partment of English and of the

Dean of the School of Arts and

Sciences.

Petition Filed

Staff Counsel Paul Halvonik

has filed a petition on behalf of

Mezey and the Fresno State Col-

lege Department of English with

State College Chancellor Glenn

Dumke. The petition urges the

Chancellor to reverse his deci-

sion on the grounds that Mezey

was terminated "because of his

views on social issues of the day"

and because the college preced-

ures governing the termination

of an academic employee were

violated in Mezey's case.

Against "Pot" Laws

Mezey became quite a contro-

versial figure in the Fresno com-

munity when he appeared at a

"Panel on Pot" at the State col-

lege and, in the course of the

discussion, stated that he thought

the use of marijuana would not

harm anyone and that if a per-

son wished to use marijuana he

should do so. Mezey stated, "It

is against the law. But I will

take a Thoreau-like position and

say that all laws like that-I

mean laws that are so stupid-

are to be broken until the laws

are off the books."

Community Outraged

As a consequence of those re-

marks a public clamor for Me-

zey's dismissal arose both within

and without the college commun-

ity. A Superior Court judge, for

example, wrote to President Ness

and stated that Mezey was un-

dermining his juvenile court

work. The judge said, "I do not

propose to permit him to destroy

the work of the Juvenile Court

and contribute to the delin-

quency of minors by using his

high position as a professor at

a college and the prestige which

flows from that position to de-

stroy the future lives of the teen-

agers of this community .. . I,

therefore urge that Professor -

Mezey be removed from the staff

of your college as one who is

unfit to occupy the teaching pro-

fession." Similar letters were ad-

dressed to Ness and to the Fac-

ulty Personnel Committee by

members of the Fresno State

College academic community.

Support From Own Department

The English Department was

asked to investigate Mezey and

issue an evaluation report in

light of the complaints that had

been received. The English De- .

partment and the Dean of the

School of Arts and Sciences con-

ducted the requested investiga-

tion and reached the conclusion

that Mezey was an outstanding

teacher and that the complaints

against Mezey were asking the

English Department to punish

Mezey for an exercise of his

right to freedom of speech guar-

anteed by the First Amendment.

Accordingly, the Department of

English recommended Mezey's

retention,

Personnel Committee

The recommendation was

made to the College Personnel

Committee. The Personnel Com-

mittee, in violation of its own

rules, held an in camera hearing

on the issue of whether Mezey,

by his statements at the "panel

on pot,' had engaged in "unpro-

fessional conduct.'' At the con-

ACLU NEWS

DECEMBER, 1968

Page 4

clusion of the hearing the Com-

mittee recommended to Presi-

dent Ness that Mezey not be re-

tained. The recommendation was

unaccompanied by any reasons

and was not, as the college rules

provided, referred back to the

English Department.

President Investigates

Because of the infirmities in

the Personnel Committee hear-

ing Ness decided that he could

not rely upon their recommenda-

tion and decided to conduct an

investigation of his own. He got

together with the English De-

partment and with Mezey in pri-

vate "off the record" meetings

that were devoted almost entire-

ly to Mezey's social and political

views. When those meetings

were concluded, Ness sent a let-

ter to Mezey informing him that

he would not be retained for the

1968-1969 academic year. That

letter, once again in violation of

college rules, contained no rea-

sons for the termination.

Special Panel

Because the procedures in the

Mezey case had been so irregu-

lar, the Fresno State College

Academic Senate convened a spe-

cial panel to hear the Mezey

grievance and to make yet an-

other recommendation to the

President on the question of

`Mezey's retention, The panel

heard testimony from Mezey,

members of the Department of

English, and Dr. Ness and de-

termined that Mezey's grievance

was well-founded and that Mezey

should be retained. President

Ness responded to this recom-

mendation by sending Mezey an-

other letter of termination un-

accompanied by any reason.

ACLU Contentions

The ACLUNC petition on be-

half of Mezey contends that:

Mezey is not being retained

because he expressed views on

issues of contemporary signifi-

cance which were controversial.

Mezey is not being retained be-

cause he exercised his right to

freedom of speech guaranteed

him by the First Amendment tc

the United States Constitution.

The decision of the Dept. of

English to retain Mr. Mezey was

improperly rejected. The only

body that has reviewed Mr.

Mezey's professional ability, the

English Department, has recom-

mended retention. The only body

that has reviewed the procedures

surrounding the decision to dis-

miss Mezey, the grievance panel,

has recommended retention. Both

recommendations were rejected.

by Ness in decisions that con-

tain no reasons, |

Every procedural device de-

veloped to ensure proper con-

sideration of a departmental reg-

ulation has been violated in the

Mezey case.

The reason that the procedures

in the Mezey case were so tor-

tured is because the due process

system was under stress. It was

under stress because Mezey was

being dismissed for an improper

reason,

Legal Action Authorized

At this writing there has been

no response from the Chancel-

lor's office to the petition on be-

half of Mezey. If Chancellor

Dumke should decide not to re-

verse President Ness's decision,

the ACLUNC Board of Directors -

has authorized Halvonik to file

suit on Mezey's behalf. :

xcerpts From

eath Penalty

pinions

Continued from Page 3-

severely attacked. But no one

knows which of these notions.

and as many others as the mind

can conjure, are accidently

seized upon by judge or jury to

grant or deny life. No one knows

what moves judge or jury to se-

lect a capital defendant for

death. We know only that the

motives and notions that deal out

death are as obscure, disordered,

and irrational as the statistical

incidence of the death penalty

itself. . . . Yet the foundation

rock of the law is reason; the

judicial process presupposes

"that its determinations are jus-

tified only when explained or

explainable in reason... .

The irrational process of de-

creeing death cannot be recon-

ciled with a sense of reasoned

justice; we cannot explain why

or when we impose the penalty.

If a civilized society cannot say

why one man should be executed

and another not, it does not ra-

tionally, logically, take life. In-

stead, it grossly denies due proc-

ess of law in inflicting death

upon the basis of a trial that is

capricious, discriminatory, and

guess-infected.

I therefore dissent from the

court's ruling on the constitu-

tionality of the death penalty,

but concur in the opinion on the

issues. (Justice Tobriner's opin-

ion covers 67 pages.)

Concurring And Dissenting

Opinion By McComb, J.

For all the reasons set forth

in Mr. Justice Burke's opinion,

I concur in the decision of the

majority of this court that the

death penalty is constitutional

and does not constitute cruel or

unusual punishment, that Penal

Code sections 190 and 190.1 are

valid, and that petitioners will

be afforded the services of coun-

sel in all proceedings between

the termination of their state ap-

peals and their execution. I re-

spectfully dissent from that por-

tion thereof that sets aside the

death penalties under the com-

pulsion. of Witherspoon v. Illi-

nois....

Berk. Emergency

Cases Dismissed

Continued from Page 2-

George Brunn decided that if the

district attorney did not feel he

could prosecute the defendants

under the City's interpretation

of its regulations that the cases

should be dismissed. Brunn by

dismissing the cases avoided

making any decision about the

constitutionality of the Berkeley

ordinance,

The defendants in the Berkeley

"Emergency' 'cases were repre-

sented by Berkeley volunteer at-

torneys Larry Duga, Albert Ben-

dich, Ken Kawaichi, Demitrios

Agretilis and staff counsel Paul

Halvonik.

Denial of Fair

Hearing in

Security Case

On October 30, Federal Judge

George Harris set aside an order

discharging Arthur R. Grimm

from the Air Force. He was

also restored to the rank he

held prior to his discharge.

Grimm had been charged,

among other things with a se-

curity violation in 1963. In de-

fiance of its own regulation, the

Air Force failed to give Grimm

an unclassified summary of an

Office of Special Investigations

report of the alleged security

violation. The information was

finally provided at an appellate

stage of the proceedings.

_ The court noted that Grimm

"was deprived of an opportunity

to confront witnesses, if any,

against him on the _ security

charge, as well as the failure

on the part of defendants to

furnish him with an unclassified

summary of the OSI report."

Separation of Spouses

Canditions

Of Probation

ACLUNC has asked the Supreme Court of California to

review and reverse a Court of Appeal decision upholding as

constitutional certain conditions of the probation of Aneta

Peeler.

Aneta Peeler pleaded guilty last April to a charge of

possessing marijuana. She was

granted probation for a period

of three years on the condition

that she be incarcerated in the

Butte County jail for 30 days,

that during the first year of the

probationary period she remain

in residence with her parents

and that she not associate with

any known users of marijuana.

Newly Married

On the day prior to her pro-

bation hearing she had married

a Mr. James Peeler, She did not

mention her marriage at the

hearing because when, before

the hearing, she had asked her

attorney how he thought the

court might feel about a "possi-

ble marriage" to Peeler her at-

torney had told her that he be-

lieved that Peeler was involved

in narcotics and that mention of

his name might. jeopardize her

chances for probation.

Court Relief Sought

When Mrs. Peeler concluded

her jail term she petitioned the

court to remove those conditions

of probation which inhibited her

marriage. In addition to the re-

quirement that she reside with

her parents, the condition that

she not associate with any

"known users of marijuana' in-

hibited her marriage because her

husband had been arrested on a-

marijuana offense.

Conditions Extended

The court did not grant Mrs.

Peeler's petition; instead it or-

dered petitioner spend another

60 days in jail and amended the

condition requiring her to avoid

association with "known" users

of marijuana by adding an in-

terdiction of any association with

"reputed" users of marijuana or

drugs. :

Separation Required

The Court of Appeal noted

that the amended condition of

probation "was, effectually, a

command that she live apart

from her husband," but, never-

theless, held that the condition

was constitutional] because it was

"reasonable and relevant to the

offense for which probation was

granted" and because "probation

is not a right but an act of grace

and clemency."

The ACLUNC petition, pre-

pared by staff Counsel Paul Hal-

vonik, contends that the Court

of Appeal applied the wrong

legal principles in the Peeler

case, "A finding that a condition

annexed to the receipt of a pub-

The first right of a citizen

Ts the right

To be responsible

AMERICAN CIVIL

OF NORTHERN

lic benefit is `reasonable and rele-

vant' cannot justify that condi-

tion where fundamental liberties

are involved. The condition can

only be sustained where there

is a showing of a compelling

subordinating state interest."

The brief goes on to note that

the United States Supreme Court

has recognized that the right to

marriage is a fundamental right

guaranteed by the United States

Constitution and that there is no

legitimate state interest that

would justify such a sweeping

inhibition of the marriage rela-

tionship.

Charges Against

Assistant U.S.

Attorney

Continued from Page 2-

Removal Threatened

Ladar then undertook to ad-

vise the lady about her rights.

Besig said this wasn't necessary

and that he should serve the

subpoena. Ladar replied that

unless Besig kept quiet he would

call the Marshal and have him

removed for obstructing justice.

The subpoena was finally

turned over to the lady and Besig

then asked that the passport be

returned as had been agreed,

Ladar said he wasn't going to re-

turn the passport. Besig stated

that was dishonest. Ladar

shrugged his shoulders and he

and Mr. Hennessey walked- off,

The lady's subpoena was re-

turnable on November 27. She

was scheduled to be represented

by Paul N. Halvonik, ACLU staff

counsel,

Protest to Poole

On November. 12, Besig talked

on the telephone with Cecil

Poole, U.S. Attorney, concerning

Ladar's conduct and it was un-

derstood that Poole would look

into the matter. Poole suggested

that under the law the passport

should be turned over to the

Passport Division of the State

Department as having been lost.

Besig insisted that the FBI had

unlawfully taken the passport.

At this writing, no further

word has been heard from Mr.

Poole. Telephone calls have gone

unanswered. If nothing is heard

from Mr. Poole the ACLU will

contact the Attorney General.

Appropriate action will also be

taken to secure the return of

the passport.

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