The Kent State Coverup

James Munves, Joseph Kelner

• Publisher: Open Road Distribution
• Year: 2016
• ISBN:
  9781504036832
• Topic: History
• Subtopic: World History
• Index: History

On May 4, 1970, two platoons of Ohio National Guardsmen fired on a crowd of students at Kent State University, killing four and wounding nine. Neither the federal government nor the state of Ohio took any responsibility for the guardsmen's actions. Through the account of the subsequent civil trial, we follow the events of that tragic day, as experienced by the victims and their families, and share their frustration as they try to discover the truth.

Part One

THE LONG ROAD TO THE CLEVELAND COURTHOUSE

1

I Get Involved

It all began a couple of days after the shootings, when I received a call at my New York law office from Elaine Miller in Queens. Mrs. Miller, a high school principal’s secretary, was the mother of Jeffrey Glenn Miller. A photograph of her son’s dead body, beneath the tortured face of the long-haired girl with outstretched arms, had been flashed around the world to become the symbol of the Kent State tragedy.

Jeff Miller had transferred to Kent State in January 1970, just four months before he was killed. He was a gregarious young man who, until abruptly growing six inches, had been a four-foot-eleven, accident-prone runt, always struggling to keep up with his peers. The summer of 1969 had been tumultuous for Jeff, with his parents divorcing and his idolized older brother moving to New Jersey. He had gone to Woodstock and suddenly adopted the youth culture of the late 1960s, wearing a fringed jacket, beads, and headband and spending long hours in his room practicing on the drums.

His mother saw him off to Kent State at the end of the winter break, just before his twentieth birthday at the end of March. On the morning of May 4 he telephoned to ask his mother whether she minded if he were to attend a campus rally scheduled for noon.

That afternoon, as she drove home from school, Elaine heard news of the Kent shootings on her car radio. She telephoned Jeff to urge him to come home. The call was answered by a young man named Bruce.

“Let me speak to Jeff,” Elaine said.

“Who is it?” Bruce asked.

“His mother.”

“He’s dead.”

I was used to talking to people who are tearful, angry, and bewildered; but listening to Elaine Miller was unusually upsetting. She had been receiving telephone calls from strangers who said that her son deserved what he got and letters to the effect that Jeff was a depraved hippie Communist and that all such people should be shot or chased out of the country. She had overheard people in the school office where she worked, in Hicksville, Long Island, say that what had happened to her son was her fault. The high school Jeff had attended in Plainview had refused in any way to mark his death. Mrs. Miller told me that she wasn’t interested in money. But she was proposing a civil suit in order to get the case into a court to show that Jeff was innocent and that whoever had shot him was wrong. She wanted the world to know that her son had been murdered, and she wanted the murderers held accountable.

My first reaction was that a criminal prosecution of the guardsmen by the State of Ohio rather than a civil suit offered the best means of clearing her son’s name. Such a prosecution was, of course, beyond our power, but I wanted to believe that if national guardsmen had violated any law in shooting the students, those responsible would be brought up on criminal charges. That very week, Vice President Spiro Agnew had stated on the David Frost television show that if the guardsmen had not deliberately murdered four students, they were at least guilty of manslaughter. Next to a criminal conviction, even a successful civil suit would be a poor second, besides being costly and interminable.

In the following weeks, as more details were revealed, I became convinced that the shootings were unjustified, and I agreed to take on Mrs. Miller’s case. When a Mississippi doctor’s letter to his son, expressing the usual antistudent sentiments, was published on the op-ed page of the New York Times, I was prompted to write a reply, which appeared in the same space.

For every lunatic dynamiter, there are a thousand serious-minded young people who really give a damn about American ideals and dreams.… Young Americans are a proud and sturdy lot who are not going to disappear. They are keenly aware of the current scene.… They think we can do better to put our values in order. They have the natural impatience of youth against decades of indolence and inertia which have permitted America to deteriorate. Why the violent protests when we marched into Cambodia without Congressional authority? To them this was an extension of Vietnam’s horror, a compounding of the original felony.… The complaint of our youth is not against the Constitution but that its spirit is being ignored and circumvented by hypocrisy.

I continued to represent Mrs. Miller, but most of the legal work was being handled by Ohio lawyers representing the other victims. I never expected that, five years later, I would be called to Ohio as chief trial counsel for all thirteen victims of the Kent State shootings, who had entered a cluster of civil suits against the governor of Ohio, James Rhodes; the former president of the university, Robert White; the former adjutant general of the Ohio National Guard, Sylvester Del Corso; and numerous other guardsmen, ranging from a general to the sergeants and privates who had pulled the triggers.

I hadn’t asked for this responsibility. Ramsey Clark, former U.S. attorney general, was slated for the assignment; I was to have been just one of seven or eight lawyers working with him. But only a few weeks before the trial, he found that circumstances compelled him to withdraw, and the other lawyers on our team asked me to take his place.

I am not a so-called civil rights lawyer, a political lawyer, or a “Movement” lawyer. I have a reputation as a trial lawyer, but that is something different. My experience included criminal and civil cases of all kinds: cases in which children had been maimed by careless or unneeded surgery, cases in which housewives had been slaughtered by defective auto steering columns. I had litigated countless defective-product liability cases, malpractice cases, shooting cases, assaults, airplane crash cases, cases arising from explosions and other disasters. I have faced countless complex legal challenges, and I love a good fight.

I knew that in the courtroom in Cleveland our task would be to bring past events to life. As a trial lawyer, that is my specialty. Damage cases are exercises in historic re-creation. Truth is elusive; it enters the courtroom secondhand, through the memories and words of witnesses whose recollections may or may not be accurate and through certain “records” of events: tire marks, fingerprints, torn clothing, photos, documents, injuries, and various other fragments of life. The challenge is always to convince the jury that one’s version of the truth is more probable than that of one’s opponent.

This often requires the mastery of complex details: the intricate maze of relationships between certain nerves and muscles and the brain; the workings of electronic devices; the characteristics of guns. In tragic accidents there are, in addition, the critical factors of time, space, and distance. Where a person was at a particular instant, the exact sequence of events (did A happen before B or B before A?), and the directions in which participants or witnesses were moving are the essential material out of which cases are built. My task always is to present facts and clarify them in the jury’s mind against the attempts of opposing counsel, usually representing insurance companies or big corporations, to prove that positions, times, and distances or causation factors were different from those my witnesses had asserted, or to confuse the jury with irrelevant details. Such elements would be the very fiber of the Kent State case.

I arrived in Cleveland with my wife, Libbie Kelner, and my son, Bob Kelner, who was a lawyer in my firm, on Thursday, May 15, 1975. The trial was slated to begin the following Monday.

I knew we had a rough road ahead of us. In the five years that had passed since the shootings, not a single person had been punished—despite the fact that four students had been killed and nine others wounded in broad daylight, before hundreds of witnesses, the events documented by photographs; despite the fact that President Nixon’s Scranton Commission had termed the shootings “unnecessary, unwarranted and inexcusable”; and despite the fact that every other impartial group that had looked into the incident, including the Akron Beacon Journal reporters who had assembled a Pulitzer prize-winning supplement on Kent State, had declared the shootings unjustifiable.

It was obvious that powerful pressures had been exerted all along to keep justice at bay.

The Ohio National Guard itself had taken no disciplinary action. Instead of court-martials and dismissals there were promotions. At the lowest level, the officers on the scene produced no real accounting of expended bullets or assigned weapons. At the higher levels, several days after the shootings, a CBS reporter overheard General Canterbury telling someone that guard chaplain John Simons, who felt the shootings unjustified, had to be “shut up.” The Portage County coroner called for a grand jury to determine whether the deaths by military bullets were “accidental or homicidal,” but the local prosecutor, Ronald Kane, hesitated and, after ten weeks, made the convening of the county grand jury contingent on receiving at least $75,000 in extra funds from the state to finance the investigation. On August 3, a week after Kane’s request and three months after the shootings, Governor Rhodes superseded Kane by appointing a special grand jury whose emphasis was on investigating not the shootings but the “illegal and criminal acts … associated with campus unrest” that led to them.

This special grand jury, instructed by special prosecutors who were political allies of the governor and who were selective with the evidence (the jurors never saw the Justice Department summary of the FBI reports), indicted not guardsmen but twenty-four students and nonstudents and one professor and issued a report condemning students and the university administration. (The report was later expunged by order of Federal Judge William K. Thomas.)

No member of the Ohio National Guard was indicted by the State of Ohio for the shootings at Kent State.

At the federal level, Nixon initially promised fast action by the Justice Department, which sent more than a hundred FBI agents to Kent, and on June 13 established a special presidential commission (the Scranton Commission) to investigate.

Although the civil rights division of the Justice Department soon ascertained, through study of the FBI reports, that several guardsmen were liable for prosecution under section 18:242 of the federal Civil Rights Act, no federal grand jury was convened for three and a half years, until after the Watergate investigation had begun and control of the Justice Department had passed to Attorney General Elliot Richardson. Previously, under Attorney General John Mitchell, the Nixon Justice Department had merely offered to cooperate with Ohio authorities, informing them that it thought some guardsmen were liable under Ohio criminal law, instead of acting on its own.

The Scranton Commission, although given broad subpoena powers, curtailed its investigation of the Kent State shootings and did not take the testimony of any enlisted guardsman, so as not to interfere with the ongoing state and federal investigations. (Guard officers Raymond Srp and Alexander Stevenson prevailed on the U.S. District Court to vacate Scranton Commission subpoenas on the basis that their testimony would prejudice the special state grand jury investigation.)

The Justice Department declared that the guardsmen had not been threatened and that “there was reason to believe the claims of self-defense were fabricated”; Ohio Attorney General Paul Brown declared that the shootings would result in prosecutions; U.S. Attorney General Mitchell declared several times that his department would act if Ohio did not, but in November 1970 President Nixon secretly ordered Mitchell not to summon a federal grand jury. Indeed, the investigations and commissions seemed to cancel each other out. Guardsmen refused to testify before the Scranton Commission for fear of injuring themselves before the state grand jury, which in fact was investigating not them but the Kent students and faculty; the Scranton Commission made no use of its broad subpoena powers because of a mistaken belief that federal action was imminent.

Nothing was done until the federal grand jury convened in Cleveland on December 18, 1973. After it had indicted eight guardsmen, the judge, Frank Battisti, dismissed the charges before the case went to the jury on the grounds that the government had not shown that the defendants had shot students with an intent to deprive them of specific civil rights.

Now, in the summer of 1975, we would be seeking a judgment for damages against (among others) a sitting governor for causing wrongful deaths, assault and battery, and violations of civil rights. This action was unprecedented in American jurisprudence.

After settling ourselves in a comfortable furnished apartment that was a few minutes’ walk from the courthouse, Bob and I walked up the street to another apartment complex, where Mike Geltner and Clyde Ellis, two lawyers for the American Civil Liberties Union, had all the discovery documents and testimony.

I was shocked. Until I saw it, I had had no idea of the magnitude of documentation. Looking at the dozens of cartons, I knew I could not hope to familiarize myself with the material before the trial began. It would have to be done...

Table of contents

• Cover Page
• Title Page
• Dedication
• Author’s Note
• Contents
• Illustrations
• Chronology
• Cast of Characters
• Prologue
• Part One: The Long Road to the Cleveland Courthouse
• Part Two: At Last, Our Day in Court
• Part Three: The Case for the Defense
• Part Four: Summing Up an American Tragedy
• Part Five: Verdict
• Acknowledgments
• Copyright Page