Leonard B. Bondin, visiting professor of Law at Harvard and defense attorney for Harrisburg defendant Eqbal Ahmad, filed a motion this week on behalf of all defense attorneys in the Harrisburg case requesting that charges against his client and the other seven defendants be dropped.
Charles R. Nesson '60, professor of Law, argued the motion for Boudin yesterday before Chief U.S. District Court Judge for the Middle District of Pennsylvania, Michael H. Sheridan.
The motion is a response to the government's pre-trial release of parts of letters allegedly exchanged by two codefendants-Rev. Philip Berrigan and Sister Elizabeth McAlister-in which the idea of kidnapping Henry Kissinger '50 is discussed.
The letters also discuss possible tactics that might have been used once the kidnap-or "citizen's arrest"-had been made.
The New York Times printed the entire text of the released correspondence on Saturday.
Boudin's motion argues that the release of the letters deprives the defendants of a fair trial and constitutes a "deliberate and purposeful abuse" of judicial procedure.
Judge Sheridan did not rule on the motion yesterday, but ordered that Herman Dixon-the trial judge in the Harrisburg case-hear the motion, and the government's reply to it, on Monday.
The motion calls on the courts to enjoin the government from releasing any further evidence before the trial. It also requests that S. John Cottone, U.S. Attorney in Harrisburg, and William SLynch, the Justice Department attorney now directing the grand jury investigation in Harrisburg, be found in contempt of court for "purposeful and deliberate violation of the defendants' [Constitutional] rights."
Finally, it asks that the government attorneys be ordered to identify-by name and position-higher officials in the Justice Department who knew in advance that the letters would be released.
The government attached copies of the two handwritten letters to new "superseding" indictments which were issued last Friday against Berrigan and the five other defendants who were in-dicted last January and two additional defendants not previously indicted.
The alleged conspiracy with which they are charged has been expanded to include conspiracy to destroy Selective Service files in addition to plans to kidnap Kissinger and blow up heating tunnels in Washington, D.C.
The exchange-by-mail between McAlister and Berrigan constitutes two of the 35 "overt acts" which are listed in the new indictment. In addition, the alleged exchange is cited as grounds for indicting McAlister, Ahmad, and Berrigan under a statute which forbids sending threatening letters through the mail.
Prosecutor Lynch said last Friday that it is "customary" to attach the evidence of threats to indictments under this statute.
Boudin said yesterday that there have been instances when a letter containing a threat has been incorporated in an indictment under this statute. "But these letters do not contain a threat in the statutory sense, since they purport to be written by one conspirator to another," he noted.
By releasing the letters in handwritten forms, rather than as a part of the typed indictment, the government is attempting to present them to the public as evidence, Boudin said.
"This is not only improper and unprecedented, but scandalous," he stated.
In an affidavit attached to his motion, Boudin said that Time and Life had been offered copies of letters such as the two that were released, but that these magazines had decided not to print them. "It is a reasonable inference that it was a government source that offered these documents to Time and Life," Boudin stated in the affidavit.
A spokesman for Time issued a statement for the magazine yesterday, which noted that Time "has seen excerpts from alleged letters between Father Philip Berrigan and Sister McAlister." The statement concluded, "we cannot and will not reveal the source of the alleged letters."