Necessity Defense Barred In Fogg Protester Trial

A group of anti-apartheid protesters billing themselves as the "Harvard Seven" were dealt a major setback this week when a local judge barred them from using a necessity defense to rebut charges that they unlawfully blockaded a University fundraising dinner at the Fogg Art Museum in November.

Cambridge District Judge Wendie Gershengorn ruled Wednesday that the divestment activists, who are charged with disorderly conduct and trespassing, could not argue the protest was necessary to prevent investments in companies which do business in South Africa. The seven had been seeking to persuade the judge and an eight-person jury that their blockade was warranted by the University's failure to completely divest from South Africa.

Nineteen protesters were forcibly removed from the steps of the Fogg Art Museum by Cambridge police on November 21 after they attempted to block guests from entering a dinner for the Harvard College Fund. The cases against 12 of the protesters, including the first two undergraduates arrested during a political protest since 1969, were dismissed when they agreed not to contest the facts the police presented.

The trial, which is entering its third day of testimony, opened Wednesday amidst much fanfare as the seven attempted to put the University's investment policies on trial.

The protesters plan to present testimony from more than a dozen experts on South Africa, and said they have subpoenaed President Bok and University Treasurer Roderick M. MacDougall'51.

The judge has not yet ruled on whether thattestimony is permissible.

MacDougall said yesterday that a subpoena wasdelivered to the side door of his house on Monday,but that it was improperly served because he wasnot at home. Harvard's top money-manager said hehad "no problem" appearing, but that his testimonymight not be appropriate since the necessitydefense was disallowed.

Bok has not yet received a subpoena, HarvardVice President and General Counsel Daniel Steiner'54, said yesterday. Steiner said that barring anychanges in the trial, neither Bok nor MacDougallshould be called to testify since they were not atthe Fogg during the arrests.

The Fogg case has been considerably slowed downby frequent objections from Middlesex CountryAssistant District Attorney Peter Z. Belloti, whohas attempted to prevent the jurors from hearingwhat he called irrelevant testimony.

The statement yesterday of one defendant,Christopher C. Tilly '76, was punctuated by some20 objections from Belloti that the testimonycontained irrelevant comments about the divestmentmovement.

At one point during yesterday's testimony,Belloti drew a smile from the judge after heprematurely attempted to have testimony stricken.The look caused a burst of laughter from theheavily pro-divestment crowd observing the trial.

"[Belloti] is doing everything in his power toshut us up," said defendant Robert Wolff '54.

Belloti declined comment on the trial afteryesterday's session.

The frequent objections and consultations withthe bench have occurred in part, observers said,because Gergenshorn has not made clear whattestimony is admissable.

Despite the setbacks, the protesters vowed tocontinue to press their case on a political level.The seven, who are representing themselves incourt, say they will use a "legitimate purpose"defense that attempts to show that they had a dutyto sit-in to prevent illegal action. They said theillegal action was the furthering of Harvard'sinvestments in South Africa by the guests whoattended the fundraising dinner.

Yesterday morning the court heard theprosecution's opening statements, which includedtestimony from Harvard Police Chief Paul E.Johnson and from several Cambridge police involvedin the Fogg protest. Although Cambridge policemade the actual arrests of protesters, Johnson wasalso considered to be an arresting officer.

Bok was not consulted prior to the arrests,even though he had approved a general plan ofaction, Steiner said yesterday. At the time of thedinner Steiner said he had made the decision toauthorize the arrest the protesters.

Harvard follows a policy of selectivedivestment in which it will maintain holdings onlyin firms that meet standards of conduct in theirbusiness practices in South Africa. The Universitycurrently has approximately $297 million of SouthAfrican-related investments