Defense attorneys for the 174 people charged with criminal trespass in the occupation of University Hall began their case yesterday in the Middlesex County Third District Court. A decision is expected today.
The attorneys outlined the defense case in three motions for acquittal following the last prosecution witness. Judge M. Edward Viola denied the motions. Three lawyers, each speaking for all the defendants, asked for immediate acquittal on the following grounds:
* That insufficient warning--in accordance with the laws of criminal trespass--was given to the defendants before they were arrested;
* That even if the warning was sufficient, there was not enough time for those inside to leave voluntarily before the police entered;
* That Dean Glimp's bullhorn warning clearly gave the occupiers license to remain in the building for five minutes, and that police moved in before the five minutes had elapsed;
* That the Commonwealth had been unable to establish that the owners of the building had authorized Dean Watson and L. Gard Wiggins, executive vice president of the University, to have the building evacuated;
* That the Commonwealth had been unable to prove that everyone who was charged was actually in the building after Dean Glimp's warning, either by identifying individuals or by demonstrating that three had been "a vice-like chain of proceedings" to insure only those in the building were arrested.
The defense presented 10 witnesses who testified to having seen people taken into custody outside of University Hall and outside the police perimeter around the Hall.
Four members of the press, who were taken into custody and later released, testified that Glimp's 5 a.m. warning was either barely audible or completely inaudible inside the building and that the time between that warning and the entrance of police was under three minutes.
John F. King '70 testified that he saw Jose A. Gomez-Ibanez '70 taken into custody outside the police perimeter near Memorial Church at 5:40 a.m. On cross-examination, prosecutor Edward D. McCarthy asked King why, if Gomez-Ibanez was his friend, he did not follow him to see if he was placed in a police van.
McCarthy interrupted King's answer twice. The student was flustered for a few seconds, regained his composure, and said "because I was being struck by a police officer." The defendants burst into cheers and applause. When it ceased, Viola said "next time that happens, I'll clear the court."
Most of the morning was taken up by the last five prosecution witnesses. They were all police officers who detailed the organization and execution of the raid and booking procedure.
Cambridge police captain Chester E. Hallice, organizer of the raid, continued his testimony from Monday. He said that municipal and Metropolitan District, police arrived at Memorial Hall at 4 a.m. Thursday and were given instructions "to remove certain individuals from University Hall who had gained entrance by force and violence." They were instructed to cordon off an area around University Hall to give the State Police "clear sailing" and to allow anyone to leave the area, but no one to enter it.
Hallice said 200 policemen left Mem Hall at about 4:52 a.m., arrived in the Yard by 4:56 a.m., and proceded to clear the steps of people and set up a perimeter around the building. He said that it was Colonel Murgia of the State Police who instructed Dean Glimp to warn the occupants, and that he himself entered the building by the southeast door with the State Police at 5:02 or 5:03 a.m. Under cross-examination, Hallice said that when he entered the building, police at the southwest entrance were already working on the chain on the door.
Hallice said that when he entered the building he told the occupants that they had been warned and if they did not leave they would be placed under arrest. The only response, he said, was a chant of "we will not move, we will not go." At that point in his testimony, some of the defendants hissed "liar." Hallice said it took about ten minutes to clear University Hall.
The police perimeter was maintained at all times, Hallice said, and to his knowledge no one was arrested outside the building. He said that police had been instructed to remain with persons they took into custody for purposes of identification only if the charge was other than criminal trespass.
The presecution attempted to introduce as evidence of the nature of the police perimeter a police film of the bust. Defense attorneys objected on the grounds that it could be used to identify the defendants and not just "for the limited purpose of defining police activity." John G. S. Flym asked that the film be permitted only if no footage was left out. The photographer testified that only portions blurred due to "improper lens opening" had been removed and that this footage had been destroyed.
Viola allowed the film to be shown, but interrupted it near the end, telling McCarthy "you are not showing what you said you would." The film mostly depicted persons being cleared from the steps and taken out of the building. Viola declared the film inadmissible as evidence.
Cambridge Police Lieutenant Daniel J. Desmond said that he was in charge of four police photographers assigned to the bust. McCarthy introduced into evidence three pictures of people being removed from the building, showing the police cordon leading into conveyance vehicles. Desmond said they were "a fair representation" of what he saw that day.
Desmond testified he saw 15 to 20 persons evacuated from the southwest door through police cordons and at least three jump out of a window. Two of these, he said, were injured. He said he never saw anyone arrested outside the building, never saw the police perimeter broken, and that the only people not in the building but inside the perimeter were "one or two reporters."
Under cross-examination, Desmond admitted that his observations were confined to the southwest door and that he had no way of knowing whether his pictures were "a fair representation" of what was happening at the other three entrances to the building.
Flym introduced into evidence a picture, which Desmond had brought into court but McCarthy had not introduced, showing a figure in a white sweater outside the building, outside the cordon through which occupants were being loaded into vans, but inside the police perimeter.
Two Cambridge police officers explained the procedure by which the people in the buses and vans--which arrived at the Third District Courthouse beginning at 5:30 a.m.--were unloaded, booked, photographed, and detained.
The defense agreed after a conference to concede that the described procedure was followed for all defendants, that all who were indeed loaded into the vehicles went through the procedure, and that--except for a few members of the press who were dismissed--all are now on trial.
The Commonwealth rested its case at 11:25 a.m.
Defense attorney Fred C. Scribner, arguing for the first of three motions of acquittal, said that the prosecution had not produced evidence of direct communication of any warning to leave the premises to any defendant. He said that Watson had an opportunity to give such a notice after the door chains were cut and he had entered the building, but did not. He argued that even if the prosecution need not prove that the defendants were aware of the warning, the warning must at least be made "in good faith" and in such a way that a reasonable person might be made aware of it. Neither of these provisions, he said, were met.
Scribner went on to say that prosecution had produced no proof that five minutes had actually elapsed between Glimp's warning and the entrance of police. He pointed out that Watson had admitted that the time could have been as little as two minutes and that it would have been impossible for all those in the building to leave during the time given.
His final point was that students had clearly been given license by Glimp ("who, we will assume for this particular argument, had control of the building") to remain inside for five minutes.
Flym, saying the Commonwealth had failed to prove that the owners of the building had participated in the decision to take action, cited the fact that while Watson said the decision was reached about 6:30 p.m., Glimp said it was made before Dean Ford's announcement from the steps of Widener around 4 p.m.
Attorney Haskell Kassler said that the prosecution had attempted to establish the identity of the defendants "in a truly unusual and novel fashion." He said that if the prosecution wanted to establish that all the defendants were actually in the building without identifying them individually, it would have to establish the existence of "a perfect and infallible net" around those taken from the building and put into the vans.
Kassler said the prosecution case on the permeability of the perimeter rested on the testimony of two witnesses: Hallice, who was inside the building throughout most of the raid, and Desmond, who admitted he saw what was happening at only one of the four doors.
In rebuttal, McCarthy pointed out that in considering motions for directed verdicts such as these, all facts are supposed to be taken in the light most favorable to the Commonwealth, and that in this light:
* The prosecution must show only that notice was given, not that it was received;
* To say "you have five minutes to leave" is not to say "you have five minutes to stay," and therefore there was no license given to anyone to remain in the building;
* That those inside had been warned from the moment they entered the building that their action could get them in trouble, and "they had twelve hours [since Dean Ford's 4 p.m. statement] to get out of there and nobody got out."
* Watson and Glimp, as appointees of the University, had the right to eject the occupiers. (He cited the case of a janitor, who a previous court ruled, was authorized to order people out of a building.)
McCarthy said, "I never understood that the Commonwealth had to prove its case perfectly, only beyond a reasonable shade of doubt."
Charles R. Nesson, assistant professor of Law, was the first defense witness. He said he saw an individual apprehended by police near the steps of Widener, taken to the steps of University Hall, and turned over to other police there. He was unable to identify the person among the defendants, and Viola excluded practically all his testimony.
Michael A. Tratner '69 testified that he also saw Gomez-Ibanez apprehended by police near the steps of Mem Church ten or fifteen minutes after University Hall had been cleared.
At 3:15 p.m., Viola asked to see counsel in his chambers. During the recess, a group of defendants began to sing "Solidarity Forever" in the courthouse lobby. They were told to be quiet by a court clerk. When Viola returned, he said that all counsel had agreed that assuming that all defendants were in the building, and if a warning was given, all the defendants, if called to testify, would say that they had heard no warning.
Barry Hillenbrand, a Time-Life reporter, testified that during the raid he saw "about a dozen" people apprehended and taken into custody outside the building.
Six witnesses testified to having seen defendant David S. Rothney '71 in the Yard around--but never inside--University Hall through Wednesday and Thursday morning up to ten minutes after the beginning of the raid.
Beverly A. Bair, a reporter for the Harvard Law Record who was arrested and released, testified that she was on the landing above the southwest door at 5 a.m. and heard or saw no warning from Dean Glimp. Edward J. Belove '72 of WHRB said he was at the bottom of the southeast steps at 5 a.m. and heard no warning.
Robert D. Luskin '72 of WHRB testified he was leaning out a second-floor window when he saw Dean Glimp making his announcement. It was, he said, "barely audible." He said he broadcast the fact that Glimp was making the announcement and later broadcast the fact that Glimp was making the announcement and later broadcast the fact that a state policeman was tugging at his microphone cable. On a tape replay, he said, the time between the two reports was 2 minutes 46 seconds.
William M. Kutik '70 of the CRIMSON repeated his testimony of Tuesday that Glimp's announcement was "barely audible" inside and that the time between the announcement and the entrance of police was "less than one and a half to two minutes."
Defense lawyers said these were all the witnesses they wished to call in support of defendants as a group. Each lawyer still retains the right to call witnesses in support of his individual clients.
At 4:30 p.m. Viola adjourned the court for the day. He said he hoped that the proceeding would be completed by noon today