Harrisburg Lawyers Seek Wiretap Ruling

Ramsey Clark, who is serving as an attorney for the Harrisburg Eight, yesterday asked U.S. District Court Judge Herman Dixon to investigate government records to determine whether evidence against the defendants had been obtained by wiretaps.

The government has stated, in papers filed with the court, that it did place a tap on the phone of defendant Sister Elizabeth McAlister but denied having tapped any "relevant" conversations between any of the other defendants or their lawyers.

Clark, Leonard Boudin, Paul O'Dwyer, and William Cunningham, all defense attorneys in the Harrisburg case, argued in favor of one pre-trial motion each in Harrisburg yesterday.

Judge Dixon reserved his decision on all the motions.

Boudin, Visiting Professor at the Harvard Law School, argued for "severance" of the case against the defendants into eight separate cases, on the ground that the use at trial of letters allegedly exchanged between certain defendants would be prejudicial to the rights of the other defendants.

O'Dwyer argued for dismissal of the case on the basis that statements made by J. Edgar Hoover, the FBI director, had made it impossible for the defendants to receive a fair trial. In response to the judge's question, "What, never? Nowhere?" O'Dwyer answered "yes."

Cunningham argued for dismissal of the last six-indictments, which charge that Sister Elizabeth McAlister and Father Philip Berrigan sent letters in and out of the Lewisburg Federal Penitentiary without the knowledge or permission of the warden. Cunningham argued that the statute under which they are charged violates the First Amendment.

In its statement on wiretaps, the government denied tapping any "relevant" conversations involving any defendants besides Sister Elizabeth or their lawyers-subsequent to the release of the original indictments on January 12.

The government did not explicitly deny that it had used wiretaps previous to January 12, nor did it deny that it had eavesdropped on conversations between the lawyers and some of the witnesses who were ordered to appear before the Grand Jury in Harrisburg.

In his arguments, Clark remarked that the Justice Department may have an inherent right to use wiretaps without a court warrant to protect the national security, but said that it forfeited the right to use evidence obtained through such wiretaps in a criminal prosecution.

The Justice Department maintains that it has the right to use wiretaps to protect the national security without receiving court approval, and that the use at trial of evidence obtained in this way does not violate the Fourth Amendment's prohibition of "unreasonable search and seizure."

Boudin argued that if each Harrisburg defendant is not tried separately, the government will have to forego introducing letters at trial which contain incriminating references to other defendants who had no part in writing the letters. He cited Supreme Court opinions which hold that the idea that a jury can be instructed successfully to disregard such evidence is a "fiction."

Boudin argued a motion several weeks ago calling on Judge Dixon to dismiss the charges and hold several government attorneys in contempt following the government's release of letters allegedly written by two of the defendants.

And Addison Bowman, another defense attorney, argued last week for an order compelling the government to give the defense a "bill of particulars," containing specific information about the alleged criminal actions of the defendants.

Judge Dixon is holding these motions under advisement, also. Today he is scheduled to preside over the defendants' arraignment on the charges made in the new, "superseding," indictments issued on April 30.