Kent State: Citizens Battle for Justice
More than a year after the murders at Kent State, the federal government justice still eludes the victims and their families.
Mr. Davies, born in England, is a self-employed insurance broker who became an American citizen in 1966. He has three sons, all younger than 10.
It has been said by James Michener, among others, that what happened at Kent State University last year was inevitable; that the increasing animosity between dissenting students and angry adults was bound to culminate in tragedy. Outside agitators and hard-core revolutionaries were manipulating this animosity, Michener claimed, to the point where deadly confrontation became inescapable. That it happened at Kent State, however, was purely accidental.
But this theory overlooks the fact that the Ohio National Guard was armed with live ammunition. in 1910 only Arkansas and Ohio authorized their militia to carry loaded weapons in every civil disturbance situation, regardless of locale or gravity of the disorder. These two states were disregarding guidelines laid down by the Department of the Army and consequently made possible the kind of indiscriminate shooting that occurred at Kent State on May 4, 1970. It can be reasonably argued, therefore, that the deaths at Kent State were caused not by a conflict between life styles but rather by the refusal of Ohio Adjutant General, Sylvester Del Corso, to be guided by the Pentagon's specific advice.
Officialdom's increasing willingness to rely on unrestrained force as the solution to controlling dissent and preventing crime is being encouraged by public approval and a few powerful elements of the news media. That is the law of force, and it has brought us from Kent State to Jackson State, to the massacre at Attica. It remains to be seen whether, aroused by the horrors of Attica, those who subscribe to the force of law will at last demand that our judicial system be allowed to assess responsibility for all the deaths since May of last year,
The tragedy at Kent State not only shocked me, as it did many Americans; it also challenged my conscience. The recklessness of the shooting was all too evident in the distances at which students were hit. None was closer to the National Guard than 60 feet and Donald MacKenzie was placed by the FBI some 730 feet from the Pagoda, where the Guard was massed. John Kifner, a reporter for the New York Times, was standing but a few yards from Jeffrey Miller and could just as easily have been killed. Any parent of a Kent State student could have lost a son or daughter in those thirteen seconds, yet far too, many refused to believe the circumstances under which the shooting occurred. They were quick to accept the explanations of Del Corso and Gen. Robert Canterbury, only to learn later that there were no snipers, that the Guard was not surrounded and that their lives were not in danger.
Within a week of the killings, the father of Allison Krause, one of the two girls who died at Kent State, responded to my letter of sympathy and together we took up the challenge to our conscience and to our understanding of law. For ten months we expended time and money, which neither of us could really afford, in a seemingly hopeless effort to make the government fulfill its obligations to the Constitution. As the months dragged by, our conviction that the gunfire was totally unnecessary was confirmed, first by the Justice Department's summary of the FBI investigations and them by the President's Commission on Campus Unrest. Not only was it unnecessary; it was termed "inexcusable." Thirteen students had been inexcusably shot, but those who did the shooting could not be called to account.
Last March, Rev. John Adams, director of the Department of Law, Justice and Community Relations of the Board of Christian Social Concerns of the United Methodist Church, joined our quest for justice. His many months of work on the Jackson State tragedy and on other cases of social injustice had won him experience that proved invaluable to us. He arranged meetings with Justice Department officials, at which we were led to believe the Department was still reviewing the Kent State case and had not reached a decision on the convening of a federal grand jury.
Earlier, I had begun to study all available material on the Kent State tragedy, and as I went through the official reports, the testimony of witnesses to both the President's commission and the Kent State commission, I compiled a book of detailed notes regarding the conduct of the Ohio National Guard during the one hour preceding the fatal volley. Comparing more than 100 photographs taken on May 4 with the testimony of witnesses, I found that the reports strongly suggested that the gunfire was initiated by some eight or more Guardsmen, the last ones to reach the Pagoda on the Guard's march back to the Commons. I could find nothing to support the claims of self-defense, nor could I find any explanation for the sudden, coordinated about-face made by these few men. Futhermore, several photos revealed that these particular Guardsmen had gone back some 15 feet toward the so-called threat to their lives. Such a movement, I concluded, was not consistent with the theory that the men were shooting to protect themselves from a charging mob about to overwhelm them -- which Canterbury had given as the reason his troops fired.
At a meeting with Richard Kleindienst, U.S. Deputy Attorney General, John Adams told him then were compelling grounds for believing that collusion had occurred, at least on the part of several Guardsmen, and that we wished to submit our ideas to the Department before a decision was made on the convening of a grand jury.
Kleindienst suggested that we submit them, in the form of a substantial document, to David Norman, at that time Acting Assistant Attorney General and head of the Civil Rights Division. Mr. Norman, we were informed, still had the Kent State matter under "intensive" review.
It was about this time that James Michener's Kent State: What Happened and Why was published. Reading it, I came across a startling suggestion: Michener wrote that it seemed likely "some kind of rough verbal agreement" had been made on the football practice field to shoot a few minutes later. In other words the fusillade might very well have been the consequence of a conspiracy. At another point in the book Michener claims that just about everything that happened on May 4, 1970 is known, "save for the crucial matter" of whether or not there was a decision made to fire at the demonstrators. He goes on to say that he very much doubts the Guardsmen will be able to maintain their wall of silence indefinitely, and that some time in the future one of them will talk and thereby release "a flood of testimony." Michener, unlike myself, spent several months in Kent and had at his command the resources of a Reader's Digest investigative team. For him to conclude from the material gathered that a decision to shoot was quite possibly made some five or ten minutes beforehand deeply impressed me, because it explained so well the conduct of those few Guardsmen during their climb to the crest of Blanket Hill and their sudden turnabout in the vicinity of the Pagoda.
By early June I had consolidated results of my research into a 227-page report, which included some seventy of the photographs I had used as reference, and submitted the document to John Adams' Department of Law, Justice and Community Relations. Because it seemed evident that Attorney General Mitchell had decided against a grand jury investigation, the report was printed and a limited number of copies issued. On June 21, Adams presented my "Appeal for Justice" to David Norman, and the following day I delivered copies to the offices of Mitchell and Kleindienst. One month went by during which we did not receive so much as an acknowledgement from anyone in the Justice Department, and on July 22, we reluctantly decided to release the report to the press. A few reporters had learned of its existence and their questions regarding its content contributed to our decision to make it public.
The press response far exceeded anything we had anticipated, and suggested to us that journalists had been far from satisfied by the official explanation of the killings. For almost a year Justice Department spokesmen had been telling newsmen that a decision on Kent State would be announced at the "appropriate time," and three days after the report was released, the Dayton Daily News asked editorially when the time is appropriate for justice at Kent State. It continued: "It is appalling and it is strange that the U.S. Justice Department continues to balk. Decency and preservation of the good name of 'law' itself require such issues be met." A few weeks later, after Congress had recessed and was safely out of town, Mitchell answered the Dayton Daily News at 4 o'clock on a Friday afternoon.
The government could find no "credible evidence" of a conspiracy and little hope for successful prosecution of individual Guardsmen. Although agreeing that the shooting was "unnecessary, unwarranted and inexcusable," Mitchell closed the file and expressed the hope that such a tragedy would not happen again. This remark moved Time to observe that, after spending more than a year in intensive investigation and study of Kent State, all the Justice Department could produce for its labors was a "pious wish."
The Akron Beacon Journal complained: "It is Mr. Mitchell who has absolved the National Guard of blame--not a grand jury or federal court." And the Christian Science Monitor said: "Mitchell's burial action at the weekend" will "likely haunt the Nixon Administration for a long time to come." James F. Ahern, a member of the President's commission, told The New York Times in late July that there was no question in his mind that the first single shot described by witnesses was a signal to shoot; he added, "At the very least it's manslaughter." After Mitchell's announcement, Ahern expressed his dismay at the obvious failure of our judicial process in the case. To Ramsey Clark the Kent State tragedy represented "a total breakdown in our system of justice." Nevertheless, both the federal government and the state of Ohio refused to implement existing laws.
At the federal level, my report suggested that there had been a possible violation of Section 241 of the U.S. Code, Title 18. Mr. Mitchell disagreed. However, in doing so he made no reference to Section 242 of the same Code which, in Mitchell's conclusion that the shooting was "inexcusable," must surely have been violated. Section 242 provides for federal prosecution of anyone "acting under color of law" who "willfully deprives" any "inhabitants of any state" of any rights secured by the Constitution or laws of the United States.
At the state level, Section 2923.55 of the Ohio Revised Code specifically states that law-enforcement officers "are guiltless for killing, maiming or injuring a rioter as a consequence of the use of such force as is necessary and proper to suppress the riot or disperse or apprehend rioters." No court in Ohio has yet been permitted to determine (a) if there was in fact a riot on May 4, 1970; (b) if all the students shot were indeed rioters, and (c) if the force used, assuming the court found there was a riot, was both necessary and proper. The Ohio grand jury never addressed itself to the question of whether or not all the students shot were rioters, and now that the official investigations have unanimously concluded the volley was "unnecessary, unwarranted and inexcusable" it becomes imperative that the force of law be applied to this case in a public trial.
For seventeen months Arthur Krause and I have worked within the system to make it work. We were joined by courageous men like John Adams and gradually by other Kent State parents as they realized the enormity of their government's failure, As Mrs. Schroeder bitterly observed after Mitchell's decision to do nothing, "Now we know the Justice Department is capable of fraud and deceit." It is indeed, and our failure to force elected officials and their appointed ministers to uphold their oaths of office is a frightening reflection on the quality of our government today.
In September our labors were rewarded with a $3 million libel and slander suit against the Board of Christian Social Concerns of the United Methodist Church and myself. The plaintiff, Sgt. Myron C. Pryor of the Ohio National Guard, alleged I had made allegations, inferences and statements about his role in the tragedy with "malice" against him. The complaint, filed in Federal District Court in New York County, further alleged that the board and I had conspired to publish, circulate and distribute the report "knowing" these statements to be "false" or with "a reckless disregard" for the truth. In response to the action Dr. A. Dudley Ward, general secretary of the Board of Christian Social Concerns, said: "We will resist the suit with all appropriate legal action. We will make it very clear that the purpose of our release of the study was to bring the whole matter into public discussion and to get the facts. And insofar as the case will bring the matter under judicial scrutiny, we think is may serve a useful purpose."
Millions of words have been written about this tragedy, but they have not moved the government to respond in the manner one expects when four young men and women lose their lives to the law of force. Nevertheless, I am convinced justice will eventually be done, and the recent petition to President Nixon is testimony to the depth of student concern more than eighteen mouths after the tragedy. Paul Keane and Greg Rambo, two Kent State students, obtained 10,380 signatures for their appeal to the President that he convene a federal grand jury, and this month the Law Students, Council at New York launched a nationwide petition in support of the students and faculty at Kent State. Perhaps the most significant aspect of these developments is the fact that the man who was chief of the Kent State police at the time of the disorders has signed the petition. Dr. Glenn Olds, president of Kent State University, personally presented it to Leonard Garment at the White House a month ago.