The Real Watergate Scandal: Collusion, Conspiracy, and the Plot That Brought Nixon Down (29 page)

It was estimated that some fifty-two thousand column inches of Watergate stories had been printed in D.C. newspapers—at a time when most people were still getting their news from those sources—85 percent of which had cast President Nixon and members of his administration in an unfavorable light.

POLITICAL BIAS OF DISTRICT VOTERS

When Richard Nixon won re-election two years before the cover-up trial, he was victorious in every state and territory except the
Commonwealth of Massachusetts and the District of Columbia. It was exceedingly convenient for the Democratic prosecutors, therefore, that the trial take place in the District, with jurors drawn from its registered voters, and Sirica made sure that the trial stayed there. President Nixon and his administration may have desegregated the Southern schools, integrated the nation’s trade unions under the Philadelphia Plan, broken the District’s heroin epidemic, rebuilt its riot corridors, pumped in millions of federal dollars in economic aid, and instituted Home Rule, but it was of little consequence. The jury pool, composed of registered voters, was dominated by people with a lifelong hostility to Richard Nixon and everything that he stood for. Such jurors could no more have put those feelings aside than they could have forgotten their own heritage.

The only two prosecutions of Watergate defendants tried outside the District of Columbia ended in acquittals. John Mitchell and Maurice Stans were acquitted in the Vesco case in New York City in 1973, and Dwayne Andreas, the CEO of Archer Daniels Midland, was acquitted of making an illegal campaign donation to Hubert Humphrey’s 1968 presidential campaign—a charge brought by WSPF prosecutors—in a trial in Minneapolis in 1975.

At the same time, convictions were obtained in almost every Watergate prosecution against Republicans brought within the District. Only Kenneth Parkinson and John Connally were acquitted. Parkinson seems to have been the “mercy bait” in the cover-up indictment—a practice, described in John Dean’s book,
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by which an incidental defendant is included in a larger case in the expectation that his acquittal will enhance the credibility of the verdict by showing that the jury made distinctions among the defendants. John Connally, who had been wounded in the shooting of John F. Kennedy, was a lifelong Democrat before switching to the GOP as Nixon’s secretary of the treasury. His defense, led by none other than Edward Bennett Williams, featured Lady Bird Johnson as a principal character witness. It would be difficult to maintain that Connally was a typical Republican defendant, and the D.C. jury acquitted him after only token deliberation.

More recent examples of successful prosecutions of Republicans in highly politicized cases include those of President Reagan’s national security advisor John Poindexter in 1990; of Vice President Cheney’s chief of staff, Lewis “Scooter” Libby, in 2005; and of Alaskan Senator Ted Stevens in 2008—all of whom faced impossible odds in prosecutions brought within the District of Columbia.

The serious disadvantage of prominent Republicans on trial in the District was well known to Supreme Court justices. Bob Woodward’s
The Brethren
recounts an exchange between Justices Potter Stewart and William Brennan, in the presence of several of their law clerks, when returning to the Court after lunch and discussing Ehrlichman’s conviction in the Plumbers break-in trial:

          
In the car on the way back, someone mentioned the Ehrlichman trial. He had been found guilty the day before. Stewart said that, as a white man, he would not want to be tried in the District of Columbia, where the juries were predominantly black.

                
“You bet your ass,” Brennan agreed.
²

More recently, in 2010, one federal judge observed to me, “I despair of any prominent Republican ever getting a fair trial within the District.”

In their book, Ben-Veniste and Frampton mock the inability of the three major defendants to come up with character witnesses who could relate to their D.C. jurors—neglecting to mention that their jury was predominantly Democratic, lower middle class, female, and black—hardly what the common law would have recognized as a jury of their peers.

Consider how the jury composition might have changed had the trial been moved outside of the District of Columbia, say to the nearby city of Baltimore or Richmond. In either city, the jury would in all likelihood have reflected a more varied ethnic, economic, and political mix. The character witnesses that these three defendants might have produced
would have been dramatically different and perhaps more effective than they were at the trial in the District.

SIRICA’S RESPONSE TO JURY TAINT AND BIAS

When confronting the problems of jury taint and bias, courts have traditionally taken any of four precautions to secure a defendant’s right to a fair trial. First, the court can change the venue of the trial, moving it to a place where the jury pool is less biased or tainted by pretrial publicity. Second, the court can grant a continuance, postponing the trial long enough for passions in the community to subside. Third, the court can exercise special caution in the selection of the jury (a process known as
voir dire
). If close and careful questioning of a prospective juror arouses concern about his fair-mindedness, he can be dismissed for cause, and there is no limit on the number who can be dismissed for cause. If a great number of jurors were so dismissed, the court would need to consider whether the entire jury pool was too poisoned for the trial to proceed. Finally, where bias or taint is a concern, a defendant may be given additional peremptory challenges—that is, the ability to dismiss a potential juror without offering a reason.

Despite the seriously tainted and biased jury pool that the Watergate defendants faced in the District of Columbia, Judge Sirica offered no relief. That jury pool instead became another of Sirica’s remorselessly wielded prosecutorial weapons.

On October 1, 1974, 155 veniremen—registered voters summoned for jury duty—were assembled in Washington’s largest federal courtroom, with the press and public in attendance, to begin the jury selection process. On the first day, ninety of these citizens convinced Sirica that sitting at a trial of three to six months’ duration would present an undue hardship and were excused. After three of the first forty-eight of those potential jurors had volunteered their belief that one or more of the defendants were guilty, WSPF prosecutors asked Sirica to instruct them to confine their responses to whether jury service would constitute a
hardship and not to express any belief as to the defendants’ guilt. Nonetheless, three additional potential jurors expressed such beliefs.

The next day the seats of the previously excused veniremen were filled with replacements. By the end of the second day, 171 people had been excused for hardship out of a pool of 315, leaving 144 potential jurors who were willing to serve.
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In practice, this should be seen as a group that was not only willing but eager to be chosen for the panel.

The selection process moved to Sirica’s own courtroom on October 3, and the public and press were excluded. There, over the course of a week, the judge posed to each potential juror questions that were designed to ascertain whether he could be impartial in a trial of great notoriety that had been preceded by substantial publicity.

Both WSPF prosecutors and Sirica were eager to form a jury. Since there was no question that the veniremen had heard about the Watergate scandal, the judge and prosecutors considered ways to appear to minimize the effect of that pretrial publicity. The prosecutors urged the judge to ask prospective jurors if they had heard anything about
this particular case
, a strange and unexpected question that would have given pause to even the most closely attuned citizen. The prosecutors hoped that a person’s betrayal of some uncertainty about whether he had heard anything about this case in particular could be taken as an indication that he had not been affected by the massive pretrial publicity.

Sirica took an alternative approach, but one aimed at achieving the same result. He would first ask the potential juror whether he had read or heard anything about Watergate. The response was always affirmative, of course, so he followed up by asking whether
anything in particular
about that coverage stood out in his mind. When the person inevitably paused, Sirica would quickly ask if he thought he could set his feelings aside and render a verdict on the evidence that was about to be presented in the upcoming trial. Several admitted that they could not and were dismissed for cause, but the others quickly caught on. All they had to do was assert their expected objectivity and the judge would not inquire further.

Defendants’ counsel objected vigorously that such a simple assertion by any given juror was hardly what the case law required, but the objection was overruled. Sirica’s generic question was as deceptively simple and deviously clever as the Watergate prosecutors’ naming Nixon an unindicted co-conspirator. Even the most dedicated and informed student of the scandal might not have a telling response to the question as Sirica phrased it.
⁴

By the evening of October 10, some 315 veniremen had been interviewed, forty-five of whom Sirica had determined to be sufficiently impartial to constitute the pool from which a jury of twelve regulars and six alternates could be selected.

The press and the public were re-admitted to Sirica’s courtroom the next day, and the prosecutors and defendants exercised their peremptory challenges to specific jurors. The judge had denied the defendants’ motions for a continuance of the trial with the assurance that he would grant them additional preemptory challenges. (The defense would ordinarily have ten and the prosecution six.) The defendants had requested three additional peremptory challenges each and maintained that Sirica’s incomplete
voir dire
had denied them sufficient knowledge to exercise their peremptory challenges effectively. In response, the prosecution requested additional peremptory challenges for itself.

In the absence of any agreement among defendants, the judge granted one additional peremptory challenge to each but required that each of the original ten be exercised by the defendants as a group. Sirica knew that the defendants were pursuing different defense strategies, and his ruling made it all but impossible for an individual defendant to exercise much influence over juror selection. Sirica also imposed a complex set of rules for the exercise of these challenges, to which the defendants objected. Mitchell’s appellate brief described the Byzantine procedure:

                
a. Jurors would be placed in the jury box according to a pre-determined order.

                
b. The ten joint defense peremptories had to be exercised two at a time.

                
c. Challenges would alternate between the government and the defense.

                
d. Two failures to exercise a challenge would bring about forfeiture of that challenge.

                
e. The government’s final challenge would be exempt from forfeiture.
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The result of this procedure was that the defendants exercised only three of the five additional peremptory challenges they had been granted.
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At the end of the tortured proceedings, twelve jurors were impanelled, ranging in age from twenty-seven to sixty-eight. Three-quarters of them were women, and two-thirds of them were black:

                
Roy V. Carter (27), chief supply officer for George Washington University

                
Gladys E. Cartier (40), office machine operator at a Washington hospital

                
Ruth C. Gould (57), loan specialist with the Department of Agriculture

                
John A. Hoffar (57), retired U.S. Park Service police sergeant, later chosen to be jury foreman

                
Anita E. King (57), matron with the Washington city schools

                
Marjorie M. Melbourn (55), retired international relations officer for the Agency for International Development (who lived in a Watergate apartment)

                
Vanetta N. Metoyer (49), waitress at a dime-store lunch counter

                
Helen D. Pratt (63), retired embassy maid

                
Dock Reid (60), doorman at the Burlington Hotel

                
Jane N. Ryon (63), retired Justice Department secretary

                
Thelma L. Wells (68), widow

                
Sandra V. Young (28), pharmacists’ assistant

Ben-Veniste and Frampton devoted a full chapter of their book to the jury selection process and their concern to get a jury of their liking. It would take only one holdout to cause a hung jury, and some jurors, it was thought, might feel that since Nixon had been pardoned, his associates ought in fairness to be let off too. The prosecutors also thought it unfair that the defendants had twice as many challenges as the prosecutors did. Above all, the prosecutors were careful that “no rock-ribbed Republican types who still believed Watergate to be a political witch-hunt got on the jury if we could help it.”
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President Nixon’s landslide reelection suggested that there were plenty of “rock-ribbed Republican types” out and about in the nation—it was just that none of them had any chance of being included in the District’s jury.