Trial of Commonwealth v. Samuel F. Tibbetts, et al, was scheduled to commence at 10:00 A.M. on Thursday, September 7, 1978, in Courtroom 6 of the New Courthouse at Pemberton Square in Boston, Judge Howard Bart presiding. Judge Bart was fifty-four, a graduate of Holy Cross College and the night law school at Boston College. John Richards learned of Bart’s assignment to the case on the morning of September 5th. He complimented Terry Gleason.
“I assume this was not luck, Counselor,” he said. “I assume Black Bart with his portable gallows and his extra coil of rope did not just fall from the sky to sit on this case.”
“No,” Gleason said. “No, as a matter of fact, Judge Bart just concluded a civil motion session down in Barnstable. My understanding is that last spring he miscalculated the length of the summer — decided it’d probably start to get cold about now. Therefore he told the assignment judge that as soon as he finished up his summer on the Cape, and closed up his house in Eastham, he wanted to get back to Boston and his house on Com. Ave. And since nobody crosses Black Bart — unless they’re ignorant or crazy — comes Labor Day and here’s Judge Bart, looking for something to do.”
“Interesting this’s what they found for him, though,” Richards said.
“Well,” Gleason said, “it sort of figures, right? He likes criminal better’n civil. I was having a drink with him down at Chatham Bars Inn at the spring Bar Association do, and he was griping about ‘goddamned civil cases. Never any fun. The hell can you do in a civil case? Jury has all the fun. Sit up there on your arse like Mary on the Half Shell and a blue floodlight at night on some goddamned ghinny’s lawn, and the only thing you get to do’s yell at some stupid bastard lawyer, doesn’t know a damned thing about the rules of evidence. I like,’ this is what he said to me, ‘what I like to do is decide the goddamned case, goddamn it.’ I saw him this morning, his way up the Hill, and he said: ‘Any chance they’ll waive jury, you think?’ Told him I doubted it.”
Richards laughed. “Right,” he said. “I can just see John Morrissey and Bigelow waiving jury so Black Bart’s the whole show. Yes, I can imagine that. I can also imagine John Morrissey appearing bare-ass in the courtroom to concede his client’s guilt. Well, we caught one break, at least. Maybe this is a good omen.”
At 10:10 on the morning of the seventh, Judge Bart surveyed the perspiring courtroom crowd. A venire of sixty potential jurors filled all but the first row of benches behind the railing that enclosed the bar.
“Ladies and Gentlemen of the venire,” he said. “The lawyers and the clerks and the bailiffs know the reason why we’re all so hot today in this air-conditioned room. They know because they’re familiar with this old barn and its peculiarities. And also, also familiar with mine. My peculiarity is a strong belief that the lawyers, and the jury, and the judge, as far as that goes, should be able to hear what the witnesses say on the stand. Counsel may now and then doubt it, but I also believe it’s useful if the judge on the bench can hear what the lawyers have to say. Critical, in fact.
“The legislative branch, in its wisdom, has not seen fit to replace the air-conditioning units since they were installed — shortly after the siege of Vicksburg, I believe it was. It is true that they remain in good enough repair to alleviate the discomfort of the heat, but at the same time they drown out any sound originating more than six feet away from the person trying to hear it. So I, and most other judges who share my bias in the matter, order them shut off when we begin a trial. We will run them during recesses, during the luncheon recess, and all night when we recess at four each afternoon. That will help a little. But otherwise, I am afraid, you’re going to have to sweat.
“Second in the Churchillian trinity,” he said, “second comes the tears. Those of you who are selected to serve on this panel will be sequestered. This means that we are going to lock you up, in no uncertain terms. You will be billeted at a reasonably comfortable hotel, fed reasonably good food, permitted to receive clothing and toilet articles delivered by your loved ones — or picked up by court officers, if you live alone — and generally treated as if you were in quarantine with some loathsome disease. You will not enjoy it one bit, and we all know it, and we will do the very best we can to see to it that you endure the ordeal in the best comfort possible. Which isn’t, to be honest, very much.
“We are doing this because the remaining item in the Churchillian trinity — the blood — is very much a part of the evidence in this case. I will address questions to all of you — and I beg each of you to answer if you find any or all of them pertinent — intended to ascertain whether you have formed any opinions that might hinder or prevent you from reaching, on the evidence and the evidence alone, a fair and impartial verdict in what can only be fairly described as a lurid case. I neither can, nor wish to, exclude the media from these proceedings. I think extremely high risks must be demonstrated to warrant closure of criminal proceedings, and I don’t see them in this case. What I do see, since I read the papers every day and often watch TV, is a certain appetite among the members of the press for stories such as I expect to develop during these proceedings. Often I have noted a certain tone in such reports which suggests to me that the reporter has personally formed an opinion of the guilt or innocence of some defendant. We don’t want you to suffer such intervention in your deliberations. We don’t want any seepage of opinions, or judgments, made by other people, to contaminate your individual judgments in this case. So, because we don’t want that to happen, and we can’t muzzle the press, we’re going to lock you up. We will let you read the papers, and let you watch TV, but the papers that you get your hands on will be clipped of any reports of this trial, and TV news is out.
“Now,” he said, “I’m going to ask each of the defendants to rise as I call their names, and each of their lawyers to rise also. Then I will ask the prosecutor and his assistant to do the same thing. After each of them has stood, and sat — because I and the witnesses are the only ones in this room who get to sit down while we talk — after that is over, I will address you generally with the question: ‘Do you, any of you, know any of these people? Have you ever had any personal dealings with one or more of them which would make it unlikely that you could render a fair and impartial verdict, solely on the facts as they appear from the evidence?’
“Now, I’m not talking here about whether any of these people looks vaguely familiar. Or whether you’ve ever said ‘Hello’ to one of them, or passed them on the sidewalk. What I want to know is whether you’ve ever done any sort of business with any of the defendants, or any of the lawyers, or any of the police officers, that will be involved in this case. And if so, whether you formed any relationships or opinions that would bias you, either in favor of, or against, any one of them. I expect you to tell me the truth. I not only expect you to tell the truth if you hate one or more of them — most of you might be tempted to say that anyway, even if it was not true, just to escape sequestration — but also to tell the truth if you love one or more of them. We want a fair shake for everybody here — the defendants, the Commonwealth, and each and every citizen who goes about his daily business in what I at least hope is the assumption that what passes for justice in American courts really amounts to that. Am I understood?”
The members of the venire nodded in unison. The judge addressed the lawyers. “Any problems with that, gentlemen? Anything I’ve said so far?” The lawyers, remaining seated, shook their heads. “So far, so good,” Bart said.
“Mister Samuel Tibbetts,” he said. Tibbetts — “looking maximum meek,” John Richards whispered to Gleason at the prosecutor’s table — stood up. He wore a dark blue suit, a white shirt, and a red knitted tie. His reddish blond hair receded from his forehead. He wore octagonal eyeglasses with gold wire frames. “Please face the rear of the courtroom, Mister Tibbetts,” Bart said. Tibbetts turned and faced the venire.
“Mister Tibbetts is represented by Attorney John Morrissey,” Bart said. “Mister Morrissey, if you also would confront the venire.” Morrissey did so.
“Mister Tibbetts is a native of Newton,” Bart said. “Mister Morrissey lives in Weston and has practiced law here in Boston for many years. Is any member of the venire aware of any reason which might prevent him or her from rendering a true verdict in the proceedings against Mister Tibbetts?” There was no response. “I should add,” Bart said, “that the charges against Mister Tibbetts, and each of the other three defendants, are those of murder in the first degree.”
Four men in the venire immediately got to their feet. “Uh huh,” Bart said. “I haven’t even gotten to the question about whether your views on capital punishment would prevent you from reaching a just verdict, and you’re already on your tiptoes. How many of you work for the Massachusetts Bay Transportation Authority?” Three of the men raised their hands.
“For the benefit of newcomers to our criminal justice system,” the judge said, “the personnel of the MBTA are all but universally so morally and philosophically opposed to capital punishment that their revulsion precludes them from sitting as jurors in murder cases.” The lawyers, policemen and bailiffs grinned, along with the clerk. The civilians behind the bar enclosure looked puzzled. “Some are so cynical as to allege that senior MBTA employees instruct all novices that such a pang of conscience will get them excused from jury duty, which pays nowhere near as well as the jobs on the MBTA, and urge them to develop such attitudes in order to avoid losing wages.” He paused. There was audible laughter. “Telephone company employees, on the other hand,” he said, “are nowhere near as sensitive. Some allege this is because the phone company not only allows its employees to keep the meager wages that jury duty pays, but also continues their regular salaries while they do their civic duty.
“You three bozos are excused,” he said. They picked up their newspapers quickly and started for the door. “Hey,” the judge said, “don’t think you’re going home. Or off to Suffolk Downs in time to dope the daily double. Report back to the jury pool. Somebody somewhere in this building’ll find some work for you. I hope. The other fellow there — what do you have to say?”
“I’m a conscientious objector,” the man said. He was about forty years old. “I was, I did my military as a medic. In Vietnam. I’m not, I’m not just trying to get out of something I don’t want to do. That’s not how I do things. It’s just I think it’s wrong to kill, for any reason. And that’s all.”
“What do you do for a living?” the judge said.
“I’m a steamfitter,” the man said. “I work for Malachy Construction, over Somerville. Been with them eight years now.”
“You’re excused,” the judge said. “Back to the pool. Anybody else?” No one else responded. “Anybody got some feelings, hard or soft, about either Mister Tibbetts or his lawyer?” There was no response. “You may be seated, Gentlemen,” he said. “Record will show that the venire stands indifferent.
“Mister Walker, Mister Bigelow, if you two would get up now and present your smiling faces to the potential jurors.”
James Walker wore a white tee shirt not quite large enough to accommodate his biceps and pectorals. Over it he wore blue and white striped overalls. His hair stood up in an Afro cut. He had a small goatee. He bowed his head and raised his right fist in the Black Power salute.
John Bigelow wore a grey suit and an expression of weariness. He closed his eyes and shook his head as he stood up.
“Mister Walker,” the judge said. “This isn’t Nuremberg, or Rome. It isn’t Mexico City. You’re neither war criminal nor Olympic medal-winner. You’re here to be tried on murder charges, not to make statements, oral or symbolic, about any of your views. Put your fist down, square your shoulders, look the jury straight in the eye.”
Walker turned and faced the bench. He glared and gave the judge the finger. “Fuck you, fascist pig,” he shouted.
The judge sighed. “Very good, Mister Walker. Now you can sit down.”
“I don’t want to sit down,” Walker said. “I want to say publicly what everybody knows. That this whole system was designed to silence dissent, and stifle debate, and stop the oppressed from getting their rights. I want to stand on my feet like a man and declare that the whole American system was designed and operates to enslave the poor and black. That you and these two men at the other table there, that all of you are trying us on charges of crimes that you know we did not commit, because we oppose oppression. That you have trumped this up. Fascist bastards.”
“Bailiff,” the judge said, “escort Mister Walker to the holding cells. Make the customary arrangements for proceedings in this room to be amplified in a secure place elsewhere in the courthouse, where Mister Walker can monitor them apart from the rest of us.”
“Fuck you,” Walker said, as the court officers approached.
“And my very best wishes to you, sir, as well,” Bart said. Walker was led away. “Mister Bigelow,” the judge said, “for the record, do you wish to make objection to my order?”
“So objected,” Bigelow said. “Rule against me.”
“Done and done,” Bart said. “Your exception to the ruling will be noted as well.
“Ladies and Gentlemen of the venire,” Bart said. “This happened a little sooner in this case than I expected, so I find myself obliged to make up ground. You are not to draw any inference, for or against any party in this case, because of any non-testimonial conduct which the party may commit. If you find someone’s behavior personally disagreeable, you are to put it from your minds when you weigh the evidence. Now: does any one of you have any recollection of any dealings whatsoever with Mister Walker or Mister Bigelow which would prevent you from doing that?” There was no response. “Venire stands indifferent.
“Miss Fentress,” the judge said, “and Miss Veale. If the two of you would stand, please, so the people can see you.” Fentress came out of her chair fast and wheeled to face the venire. She was blocky under her dark grey muu-muu. She had pulled her long black hair away from her face and secured it with an elastic band in a pony tail that hung down to her waist. Her eyes blazed. She folded her arms under her breasts and planted her feet splayed. Carolyn Veale in a dark blue coat dress stood demurely behind the bar. “Anybody out there know either of these ladies?” the judge said. “Any reason to believe you might be prejudiced?” There was no response. “Ladies,” he said, “you may be seated. Jurors stand indifferent.”
“Fuck you, they are,” Fentress said, sitting down again.
“Record will reflect defendant Fentress has availed herself of the common misapprehension that every dog gets one free bite,” the judge said. “Record will also reflect that defendant Fentress has been, and is being, warned that another such outburst will have her in the pound. And not the same pound as defendant Walker, either. Understood, Miss Veale?”
“Understood, with objection,” Veale said.
“Overruled, exception noted,” the judge said. “Moving right along here, folks — Mister Klein and Miss Franklin will please stand and face the venire?”
Morris Klein was overweight, about five-seven. He wore a tan corduroy suit, a red and yellow plaid shirt, a black knitted tie and a long salt-and-pepper beard. He was bald. Jill Franklin wore a long white cotton dress with small roses in its pattern. Her face was mottled under her long blonde hair. In a voice barely audible she said: “Power to the people.” In a much louder voice, Klein said: “Power to the people.”
“That will do,” Bart said. “Record will reflect same warning to Mister Klein and his client previously issued to Miss Fentress. Anybody.…”
“Objection,” Klein said loudly.
“Overruled,” Bart said. “Exception noted. Please sit down. Your client, too. Anybody on the venire have any personal problem with these two? Keep in mind that private views about mannerly conduct are not to be considered. Record will reflect no response. Venire stands indifferent.
“Mister Gleason,” the judge said. “Get up on your hind legs. Face the venire please. Introduce your companion, if you would.”
Gleason stood up. Richards stood up beside him. “Detective Lieutenant Inspector John Richards will assist me with the paperwork in this trial,” he said. “He will also testify.”
“Objection,” Klein said.
“Overruled,” Bart said. “Exception noted.”
“I wish to be heard,” Klein said.
“Life is hard,” Bart said. “Anybody know Mister Gleason, Special Assistant Attorney General Gleason, that is? Or Lieutenant Richards?”
“I object to Mister Richards being described by his official title,” Klein said.
“Overruled,” Bart said. “Exception noted.”
“I object to your refusal to hear me,” Klein said.
“Overruled,” Bart said. “Exception noted. Off the record.” The stenographer stopped typing. “Sit down and shut up.”
“I object to that as well,” Klein said.
“We’re off the record, Counselor,” the judge said. “If we go back on, and you continue, the next thing the record will reflect is that you’ve been cited for contempt. Now, you wanna try this damned case or you want your client’s trial severed? You can take your choice.”
“I want the case tried,” Klein said. “But I want it tried fairly.”
“That’s what you’re going to get,” the judge said, “whether you like it or not. Now: sit down, and shut up. Back on the record. Record will reflect venire stands indifferent to Mister Gleason and Mister Richards. We’ll take the morning recess.”