NYTimes.com
http://www.nytimes.com/learning/general/onthisday/big/0511.html#article
Pentagon Papers Charges Are Dismissed; Judge Byrne Frees Ellsberg and Russo, Assails 'Improper Government Conduct'
New Trial Barred
But Decision Does Not Solve Constitutional Issues in Case
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By Martin Arnold
Special to The New York Times
Air of Expectancy, Then Tears, Shouts, Embraces
Gray Call to Nixon: Said to Inform Inquiry It Came 3 Weeks After Watergate
Los Angeles, May 11 [1973] -- Citing what he called "improper Government conduct shielded so long from public view," the judge in the Pentagon papers trial dismissed today all charges against Dr. Daniel Ellsberg and Anthony J. Russo Jr.
And he made it clear in his ruling that the two men would not be tried again on charges of stealing and copying the Pentagon papers.
"The conduct of the Government has placed the case in such a posture that it precludes the fair, dispassionate resolution of these issues by a jury," he said.
David R. Nissen, the chief prosecutor, said, "It appears that the posture is such that no appeal will be possible."
Defendants Not Vindicated
But the decision by United States District Court Judge William Matthew Byrne Jr. did not vindicate the defendants; it chastised the Government. Nor did it resolve the important constitutional issues that the case had raised.
The end of the trial, on its 89th day, was dramatic. The courtroom was jammed, the jury box was filled with news reporters; defense workers in the Ellsberg-Russo cause, mostly young people, sat in chairs lining the courtroom wall.
Dr. Ellsberg and Mr. Russo, surrounded by their lawyers, stared intently as Judge Byrne quickly read his ruling.
The Government's action in this case, he said, "offended a sense of justice," and so "I have decided to declare a mistrial and grant the motion for dismissal." The time was 2:07 P.M.
The courtroom erupted in loud cheering and clapping. The judge, barely hiding a smile, quickly strode out the door behind his bench.
Tension had been building for two days, since the sudden disclosure by the Government yesterday that telephone conversations of Dr. Ellsberg were picked up by wiretapping in late 1969 and early 1970, and that all records and logs of those conversations had disappeared from the Federal Bureau of Investigation.
When this morning the Government was still unable to produce either the records or a legal authorization for the taps, it was evident that the case had ended.
The jury was not present when the judge read his decision. It had been sent home until Monday morning.
Before rendering his decision, the judge offered the defendants the opportunity to go to the jury for a verdict. He said that he would withhold his ruling on their motion to dismiss if they wanted. He indicated that if they did decide to go to the jury, he would probably dismiss some of the counts -- six for espionage, six for theft and one for conspiracy.
He said that he believed enough of the case was left to litigate before the jury, if the defendants so desired. They did not, and then he read his ruling.
"A judgment of acquittal goes to all the facts," he said, but he added that if he ruled on that defense motion, "it would not dispose of all the issues." That, he said, "can only be done by going to the jury."
He did say, however, that his ruling was based not only on the wiretap disclosures, "or based solely on the break-in" of the office of Dr. Ellsberg's psychiatrist on Sept. 3, 1971, by agents in the employ of the White House.
Ellsberg May Sue Nixon
But Judge Byrne said that "on April 26 the Government made an extraordinary disclosure" -- that of the break-in -- and that was followed by disclosures that the break-in was done by a "special unit" reporting to the White House.
He said that the special unit "apparently operated with the approval of the F.B.I." and that the C.I.A. also became involved in the prosecution of this case at the "request of the White House."
Dr. Ellsberg and Mr. Russo were jubilant, and members of their families were in tears as the long ordeal, which started with
Dr. Ellsberg's arrest on June 25, 1971 ended.
Dr. Ellsberg said that he would file a civil action against former and present high ranking officials of the Government, even perhaps against President Nixon.
Dr. Ellsberg and Mr. Russo contended that they had taken the papers and copied them to give them to Congress, which, they hoped, would bring pressure to end the war in
So in reality they were arguing in court not only constitutional issues, but their belief that the greater good required them to break some regulations to make the papers public.
This, too, was an issue that the jury would have decided.
"I am convinced by the record of the last couple weeks, particularly the last couple of days," that the trial should not go on, the judge said.
"Governmental agencies have taken an unprecedented series of actions against these defendants" he said. He cited the special White House "plumbers" unit, which "apparently operated with the approval of the F.B.I."
"We may have been given only a glimpse of what this special unit did," the judge said. "The latest series of actions compound a record already pervaded by instances which threatened the defendants' rights to a fair trial."
"It was of greatest significance," he said, that the wire-tap occurred during the period of conspiracy.
"Continued Government investigation is no solution," he added, "because delays tend to compromise the defendants' rights."
He precluded another trial against Dr. Ellsberg and Mr. Russo by including in his ruling this sentence:
"Under all the circumstances, I believe that the defendants should not have to run the risk, present under existing authorities, that they might be tried again before a different jury."
Dr. Ellsberg was asked if he was disappointed that the case had not gone to the jury and he replied, "I think that an American jury would have come to a judgment that is good for this country."
"Tony and I think we know we did something right," he added.
He was asked if he would disclose the Pentagon papers again, and he answered, "I would do it tomorrow, if I could do it."
Leonard B. Boudin, a defense attorney, said,
"I think that the court's ruling was appropriate, necessary, eloquent, justified and dispositive. The judgment was made not on the narrow issue of wiretapping, but on the totality of Government misconduct."
Dr. Ellsberg then added that "the trial isn't over until that bombing is over in
"Don't we have the right not to be tried under Nazi law," he asked. "This Administration has been very straight about where it is. It is up to us to tell them what it means to be an American.
"If facts prove to be what they appear to be, the President has led a conspiracy, not only against Tony and me, but against the American public."
Later today, the Judge's clerk notified the jurors by telephone that the case had ended and a quick poll this evening showed that at least half of them would have voted to acquit the defendants.
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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs
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