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Campus "Unrest" demonstrations and consequences, 1970-1971

1971-11-12 American Report: Review of Religion and American Power Page 12

8-S AMERICAN REPORT, NOVEMBER 12, 1971

Kent State: A Legal Overview

by Steven A. Sindelll 

The Kent State tragedy is a piece of history. As such, it cuts across many area of our national life; politics, sociology, religion, and law. The incident, as an unprecedented happening. inevitably stimulates inquiry among the concerned as to its causes and roots, among those causes and roots, a troubling national neurosis - conscious only to some degree. 
Because many sensed and urged after the event that it was inevitable, one senses in such certitude a need for appraisal of the psychological composition of the American people. Surely the sources of conflict which underlie this frightening episode stem from our national birth - and continue to the present, and include the many traumatic episodes that have become a part of our national growth. 
Yet, one asks, if this occurence was inevitable, why then were so many of us shocked by its actual realization? The measure of our shock is the measure of our lack of self perception as a people. Perhaps we fail to understand our deep and persistent traditions of violence as a means of solving our national problems, and as a means of resolving our foreign difficulties; not that violence is always misguided, but that America's resort t it has been abused. 
Perhaps we have failed to percieve that our history is surfeited with instances of national intolerance to minorities who do not conform and who threaten the realization and security of whatever materialistic values the majority of people or the powerholders may have been pursuing as a nation at any juncture in our national life. The list is long-Indians, women, blacks, and other ethnic minorities, migrants, aliens, the accused prisoners. the poor, the helpless, the sick, the aged. When then should students be regarded or treated any differently in an age when their willingness to conform has diminished and their numbers increased relative to the entire population? It is this historical combination of violence and intolerance which, in the larger sense, provided the basic ingredients of explosion at Kent. 
Intolerance is not peculiar to America. It is common to majorities everywhere with respect to their deeply held values. The disturbing factor arises when intolerance becomes to manifest that it is transformed into blindness - indeed, into psychosis, It is disturbing when the majority mentality is no longer able or willing to limit its intolerance to the views and actions of various individuals in specific instances (in which such intolerance may from time to time be justified) but when that majority mentality thinks in collective rather than in individual terms, in terms of students as a whole, blacks as  whole,, criminals as a whole, welfare recipients as a whole, etc. It is when our traditions of violence and intolerance are exerted against groups in all cases, rather than against individuals in specific cases, that our actions take on an aura of madness. 
Kent is a microcosm of such madness, and in a critical way, our ability as a nation to learn and recover from it is one of the severest tests to which our faith in democracy has ever been put. 

I am an optimist. I believe that America, through its national experience at Kent, will not only do justice for what has happened in the past, but will learn benefit , and improve in the future. 
I should add that I am more than an optimist. I am a lawyer, a young lawyer, and it is my further belief that historians will one day write that an indispensable part of our solution was found in the genius of our legal institutions. 
Law if part our our national religion. We believe in it as a peple, and through it we have sought our national salvation. We can be confident in our faith in law in this nation, for it is founded upon what must be regarded as an inordinately brilliant instrument, the United States Constitution.Presidents, political parties, and national leaders have come and gone; technology had changed our way of life, indeed some of our values; wars have seared our conscience; foreign nations have threatened our national existence; immigration has altered our national sociology; extremists have threatened our stability; waste has diminished our wealth. But the basic precepts of our revolutionary birth remain unchanged, unaltered, and intact, permanently enshrined in their original form at the geographical seat of our Government. 
No matter how distasteful or unpleasant, no matter how we may in practice seek  to avoid its strictures, the supremacy of the Constitution, including the Supreme Court's interpretation of it, effectively remains unchallenged. The Bill of Rights is part of our national conscience, and when those rights are judicially invoked, we cannot escape that confrontation with our core.
The judiciary is the voice of our conscience. It is true enough that like people, nations sometimes do ignore their conscience, and refuse to be guided by its dictates. But it is there to be invoked and hopefully acted upon, and Kent is a call to the conscience of America. Kent had within it a peculiar mix of circumstances which can permit America to see herself - and to understand. Few episodes are so laden with such significant potential for transforming our self consciousness. 
The legal system is inherently designed for such critical self examination. In theory, at least, it rejects the madness of automatically grouping all students into a receptacle for collective intolerance and violence. Such notions are legally regarded as irrelevant and subjective prejudices, which have no bearing on what lawyers refer to as the probative facts. If the issue is whether Dean Kahler, was unjustifiably wounded and paralyzed for life, then it is not legally relevant to such an issue that many students refuse to conform in their dress and beliefs, or that soe students at other times in the past have unlawfully destroyed property and committed violent acts to achieve their goals, or that some students refuse to serve willingly in the military. 
The legal system is designed to ferret out such notions from the process of evaluation of the event. It is designed to attain the truth of the issue, the reality of the facts. It forces us to deliberate about what was operative at the very time of the tragedy, to determine if there were reasonable ground to fire weapons under those circumstances pertaining at that particular time; hate, anger, and prejudice do not justify such shooting. The issue is far more specific - were those who fired reasonably in fear of their lives at that particular time? The law in its narrow obeisance to relevance, attempts to force the trier of fact to separate the legal issues from the larger issues. 
Whether the shooting was justified is not the key to our total understanding of what took place at Kent, but it is the only key to our understanding of what justice means in this instance. For while the law confines proof to the narrow issue at hand, it imposes a general standard of legal morality, irrespective of the narrow circumstantial deaths of who, where, or when: namely , that no man's life shall be taken by another except is self defense.Our legal tradition contains within its critical mechanism for the invocation of our national conscience - the mechanism for ruthlessly and directly facing the truth, however abhorrent that truth may turn out to be,
It would be naive to believe that the rule of law has always prevailed. Our legal history is replete with examples of instances where on has the terrible, gnawing discomfort, if not the full realization, that the legal process has failed . There have been times when the powers of prejudice have overwhelmed the powers of reason and law. We cannot afford such a  miscarriage of justice with Kent; yet sober reflection necessitates the troubling recognition that there are several operative dangers which can, if nothing is done about them, pervert the proper functioning of the judicial system in this case. 
The first and most obvious danger is the politics of prejudice. So many in this nation are committed to the prejudice that these students got what they deserved, that many political leaders have succumbed to the current popular ideology and have failed to insist upon an adherence to the rule of law. there is no explanation other than political expediency for the shameful failure of the United States Department of Justice to conduct a Federal Grand Jury investigation into Kent. Its own summary of the F.B.I report has concluded, among other things, that at the time of the shooting, the national guard clearly did not believe that they were being fired upon. The Scranton Commission has concluded, among other things, that the shooting was "unwarranted, unjustified and inexcusable." Attorney General Mitchell himself concurs with the findings of the Scranton Commission. 
Such conclusions, reached after an intensive investigation command inquiry under oath by a grand jury, The grand jury is all too often abused and misused to coerce and prosecute the innocent. But it does have its origin in the Bill of Rights, and it does have the historical function of investigating incidents such as Kent, in secrecy, so as to protect the innocent, while at the same time appropriately indicting persons if and when the evidence justifies probable belief in their guilt. 
Many Senators - Republicans and Democrats, conservatives and liberals alike - have publicly demonstrated their courage and wisdom by calling for a Federal Grand Jury investigation. It is not too late to convene one. The families of the killed - the Krauses, the Millers, the Schroeders, and the Scheuers- are entitled to this inquiry. It is no answer that there was a grand jury investigation in Portage County, the community where the event occurred. The report of that state grand jury was so defective that a Federal judge ordered that it be expunged. The indictments issued by that state grand jury have been so subject to question, that as yet the courts have not permitted the commencement of prosecutions - and there is some doubt as to whether any or all of these trials will ever take place. 
There is another danger to the proper functioning of the of the rule of law in this case - danger is inherent in the law itself. Law does not easily change and legal rules are not lightly set aside. This conservatism is healthy, for one of the most important attributes of an effective legal system is predictability. Those who live by our laws should be entitled to rely upon their stability This is not to say, however, that the law must remain impervious to change when circumstances clearly reveal the need for change. 
The conservatism is healthy insofar as it refuses to lightly set aside well established principles. But the dynamic is essential where historical anachronisms create legal fictions which have nothing more in logic to sustain their existence than the mere fact of their previous existence. A law which no longer commands respect in any quarter does not belong in any quarter. Such is the case for the so-called doctrine of sovereign immunity, the idea that the sovereign embodied in the entity of the modern state may not be responsible in damages for injuries inflicted upon innocent citizen through the wrongs (or torts) of its agents an employees. 
This notion harks bark to an ancient era in common law when recognition was accorded to the divine right of kings, and the corollary notion that "The king can do no wrong.". Courts in American have wisely adhered to the wealth of wisdom contained in the historical roots and concepts of the common law, where the meaning and applicability to the present is manifest. But by the same token, our courts have frequently departed from its ancient traditions where those traditions have no reasonable relevance to modern ideas of fairness or to current realities. It is clear that the prerogatives of ancient monarchy have no place in the reality of a modern democracy. This nation in its inception departed from the monarchial mold, and in no sense were the various states of the union regarded at any time as substitutes for divine kingly rule. 
State governments, from the outset, were regarded as sovereign to protect the rights of its citizens. not to limit or denigrate their rights. The antiquated notion that "the king can do no wrong" in terms of the 20th century is patently pre 

(Cont p. 9-S, Col. 1 )

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8-S AMERICAN REPORT, NOVEMBER 12, 1971 Kent State: A Legal Overview by Steven A. Sindelll The Kent State tragedy is a piece of history. As such, it cuts across many area of our national life; politics, sociology, religion, and law. The incident, as an unprecedented happening. inevitably stimulates inquiry among the concerned as to its causes and roots, among those causes and roots, a troubling national neurosis - conscious only to some degree. Because many sensed and urged after the event that it was inevitable, one senses in such certitude a need for appraisal of the psychological composition of the American people. Surely the sources of conflict which underlie this frightening episode stem from our national birth - and continue to the present, and include the many traumatic episodes that have become a part of our national growth. Yet, one asks, if this occurence was inevitable, why then were so many of us shocked by its actual realization? The measure of our shock is the measure of our lack of self perception as a people. Perhaps we fail to understand our deep and persistent traditions of violence as a means of solving our national problems, and as a means of resolving our foreign difficulties; not that violence is always misguided, but that America's resort t it has been abused. Perhaps we have failed to percieve that our history is surfeited with instances of national intolerance to minorities who do not conform and who threaten the realization and security of whatever materialistic values the majority of people or the powerholders may have been pursuing as a nation at any juncture in our national life. The list is long-Indians, women, blacks, and other ethnic minorities, migrants, aliens, the accused prisoners. the poor, the helpless, the sick, the aged. When then should students be regarded or treated any differently in an age when their willingness to conform has diminished and their numbers increased relative to the entire population? It is this historical combination of violence and intolerance which, in the larger sense, provided the basic ingredients of explosion at Kent. Intolerance is not peculiar to America. It is common to majorities everywhere with respect to their deeply held values. The disturbing factor arises when intolerance becomes to manifest that it is transformed into blindness - indeed, into psychosis, It is disturbing when the majority mentality is no longer able or willing to limit its intolerance to the views and actions of various individuals in specific instances (in which such intolerance may from time to time be justified) but when that majority mentality thinks in collective rather than in individual terms, in terms of students as a whole, blacks as whole,, criminals as a whole, welfare recipients as a whole, etc. It is when our traditions of violence and intolerance are exerted against groups in all cases, rather than against individuals in specific cases, that our actions take on an aura of madness. Kent is a microcosm of such madness, and in a critical way, our ability as a nation to learn and recover from it is one of the severest tests to which our faith in democracy has ever been put. I am an optimist. I believe that America, through its national experience at Kent, will not only do justice for what has happened in the past, but will learn benefit , and improve in the future. I should add that I am more than an optimist. I am a lawyer, a young lawyer, and it is my further belief that historians will one day write that an indispensable part of our solution was found in the genius of our legal institutions. Law if part our our national religion. We believe in it as a peple, and through it we have sought our national salvation. We can be confident in our faith in law in this nation, for it is founded upon what must be regarded as an inordinately brilliant instrument, the United States Constitution.Presidents, political parties, and national leaders have come and gone; technology had changed our way of life, indeed some of our values; wars have seared our conscience; foreign nations have threatened our national existence; immigration has altered our national sociology; extremists have threatened our stability; waste has diminished our wealth. But the basic precepts of our revolutionary birth remain unchanged, unaltered, and intact, permanently enshrined in their original form at the geographical seat of our Government. No matter how distasteful or unpleasant, no matter how we may in practice seek to avoid its strictures, the supremacy of the Constitution, including the Supreme Court's interpretation of it, effectively remains unchallenged. The Bill of Rights is part of our national conscience, and when those rights are judicially invoked, we cannot escape that confrontation with our core. The judiciary is the voice of our conscience. It is true enough that like people, nations sometimes do ignore their conscience, and refuse to be guided by its dictates. But it is there to be invoked and hopefully acted upon, and Kent is a call to the conscience of America. Kent had within it a peculiar mix of circumstances which can permit America to see herself - and to understand. Few episodes are so laden with such significant potential for transforming our self consciousness. The legal system is inherently designed for such critical self examination. In theory, at least, it rejects the madness of automatically grouping all students into a receptacle for collective intolerance and violence. Such notions are legally regarded as irrelevant and subjective prejudices, which have no bearing on what lawyers refer to as the probative facts. If the issue is whether Dean Kahler, was unjustifiably wounded and paralyzed for life, then it is not legally relevant to such an issue that many students refuse to conform in their dress and beliefs, or that soe students at other times in the past have unlawfully destroyed property and committed violent acts to achieve their goals, or that some students refuse to serve willingly in the military. The legal system is designed to ferret out such notions from the process of evaluation of the event. It is designed to attain the truth of the issue, the reality of the facts. It forces us to deliberate about what was operative at the very time of the tragedy, to determine if there were reasonable ground to fire weapons under those circumstances pertaining at that particular time; hate, anger, and prejudice do not justify such shooting. The issue is far more specific - were those who fired reasonably in fear of their lives at that particular time? The law in its narrow obeisance to relevance, attempts to force the trier of fact to separate the legal issues from the larger issues. Whether the shooting was justified is not the key to our total understanding of what took place at Kent, but it is the only key to our understanding of what justice means in this instance. For while the law confines proof to the narrow issue at hand, it imposes a general standard of legal morality, irrespective of the narrow circumstantial deaths of who, where, or when: namely , that no man's life shall be taken by another except is self defense.Our legal tradition contains within its critical mechanism for the invocation of our national conscience - the mechanism for ruthlessly and directly facing the truth, however abhorrent that truth may turn out to be, It would be naive to believe that the rule of law has always prevailed. Our legal history is replete with examples of instances where on has the terrible, gnawing discomfort, if not the full realization, that the legal process has failed . There have been times when the powers of prejudice have overwhelmed the powers of reason and law. We cannot afford such a miscarriage of justice with Kent; yet sober reflection necessitates the troubling recognition that there are several operative dangers which can, if nothing is done about them, pervert the proper functioning of the judicial system in this case. The first and most obvious danger is the politics of prejudice. So many in this nation are committed to the prejudice that these students got what they deserved, that many political leaders have succumbed to the current popular ideology and have failed to insist upon an adherence to the rule of law. there is no explanation other than political expediency for the shameful failure of the United States Department of Justice to conduct a Federal Grand Jury investigation into Kent. Its own summary of the F.B.I report has concluded, among other things, that at the time of the shooting, the national guard clearly did not believe that they were being fired upon. The Scranton Commission has concluded, among other things, that the shooting was "unwarranted, unjustified and inexcusable." Attorney General Mitchell himself concurs with the findings of the Scranton Commission. Such conclusions, reached after an intensive investigation command inquiry under oath by a grand jury, The grand jury is all too often abused and misused to coerce and prosecute the innocent. But it does have its origin in the Bill of Rights, and it does have the historical function of investigating incidents such as Kent, in secrecy, so as to protect the innocent, while at the same time appropriately indicting persons if and when the evidence justifies probable belief in their guilt. Many Senators - Republicans and Democrats, conservatives and liberals alike - have publicly demonstrated their courage and wisdom by calling for a Federal Grand Jury investigation. It is not too late to convene one. The families of the killed - the Krauses, the Millers, the Schroeders, and the Scheuers- are entitled to this inquiry. It is no answer that there was a grand jury investigation in Portage County, the community where the event occurred. The report of that state grand jury was so defective that a Federal judge ordered that it be expunged. The indictments issued by that state grand jury have been so subject to question, that as yet the courts have not permitted the commencement of prosecutions - and there is some doubt as to whether any or all of these trials will ever take place. There is another danger to the proper functioning of the of the rule of law in this case - danger is inherent in the law itself. Law does not easily change and legal rules are not lightly set aside. This conservatism is healthy, for one of the most important attributes of an effective legal system is predictability. Those who live by our laws should be entitled to rely upon their stability This is not to say, however, that the law must remain impervious to change when circumstances clearly reveal the need for change. The conservatism is healthy insofar as it refuses to lightly set aside well established principles. But the dynamic is essential where historical anachronisms create legal fictions which have nothing more in logic to sustain their existence than the mere fact of their previous existence. A law which no longer commands respect in any quarter does not belong in any quarter. Such is the case for the so-called doctrine of sovereign immunity, the idea that the sovereign embodied in the entity of the modern state may not be responsible in damages for injuries inflicted upon innocent citizen through the wrongs (or torts) of its agents an employees. This notion harks bark to an ancient era in common law when recognition was accorded to the divine right of kings, and the corollary notion that "The king can do no wrong.". Courts in American have wisely adhered to the wealth of wisdom contained in the historical roots and concepts of the common law, where the meaning and applicability to the present is manifest. But by the same token, our courts have frequently departed from its ancient traditions where those traditions have no reasonable relevance to modern ideas of fairness or to current realities. It is clear that the prerogatives of ancient monarchy have no place in the reality of a modern democracy. This nation in its inception departed from the monarchial mold, and in no sense were the various states of the union regarded at any time as substitutes for divine kingly rule. State governments, from the outset, were regarded as sovereign to protect the rights of its citizens. not to limit or denigrate their rights. The antiquated notion that "the king can do no wrong" in terms of the 20th century is patently pre (Cont p. 9-S, Col. 1 )