"Blood on my Hands": Kent State Civil Trials

[kainah]

At 12:24 PM on Monday, May 4, 1970, twenty-eight Ohio National Guardsmen pivoted 135 degrees and began shooting into a crowd of student protesters at Kent State University. By the time the shooting ended thirteen seconds later, the guardsmen had fired sixty-seven rounds and four students lay dead or dying with at least another nine having been shot. How did this confrontation happen? And what caused the Guard to open fire? 36 years later, many of the answers are still unclear.

In Part I of this series, we looked at Nixon's curiously timed announcement of the Cambodian invasion and the May Day rally at Yale University. Part II examined the events of that weekend at Kent. Part III explored the events of Monday, May 4. Part IV dealt with the immediate aftermath of the shootings. Part V looked at the various investigations following the shootings. Part VI examined the federal grand jury and criminal trial of eight guardsmen. This, Part VII, concludes the series by examining the years of civil proceedings.

In memory of ?CLICK?CLICK">Jeffrey Miller, Allison Krause, Bill Schroeder, and Sandy Scheuer, join me in exploring the civil trials that grew out of May 4.

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First, I again want to acknowledge the work of Bill Gordon and his book, "Four Dead in Ohio" which was very helpful in putting together this diary.

Filing Suit

In Pittsburgh, Pennsylvania, Arthur and Doris Krause struggled throughout the spring of 1970 to come to some understanding about the senseless death of their daughter, Allison. Arthur became the face of the victims on May 5 when, struggling to contain his emotion, he appeared before reporters to ask: "(Allison) resented being called a bum because she disagreed with someone else's opinion. She felt that our crossing into Cambodia was wrong. Is this dissent a crime? Is this a reason for killing her? Have we come to such a state in this country that a young girl has to be shot because she disagrees deeply with the actions of her government?" (emphasis added)

Before the end of June, the Krauses had filed a wrongful death suit under 42 USC 1983, a civil rights statute, against 43 people, including KSU President White, Governor Rhodes and National Guard Generals Del Corso and Canterbury. When his lawyer asked Krause how much he sought in damages, Krause responded “one dollar.” The lawsuit, after all, had nothing to do with money and everything to do with holding people accountable. Informed that federal courts required a certain dollar threshold before they would entertain jurisdiction, Krause thought for a bit and decided on $6 million. Asked later how he arrived at that figure, he said it represented $1 for every Jew killed in the Holocaust. (Three of the four students killed - Scheuer, Krause and Miller - were, by chance, Jewish.) By mid-September, Martin and Sarah Scheuer had also filed suit.

In New York City, Jeff Miller’s mother was living through the worst summer of her life. Later, she would say it took everything she had just to get out of bed. (And many days, she didn’t manage that.) The summer before (1969) had been a hard one, also, as her twenty-plus year marriage finally collapsed under the weight of an empty nest. Now, the pain of that turmoil seemed like nothing. The divorce had become final a few months before Jeff’s death and so Elaine was surprised a month after the shootings when her divorce lawyer called. She assumed it was just a sympathy call but he had something else on his mind, as well. He knew a personal injury lawyer, Joseph Kelner, who wanted to talk with Elaine about filing a civil lawsuit. Elaine’s first reaction was no. “If you can’t get out of bed, how can you go into court?” she said later. But Kelner persisted, explaining why he believed a civil suit not only just but necessary. As they talked, Elaine mentioned the hate mail she had received. Because Jeff’s death had been captured in ?click">John Filo’s famous photo of Mary Vecchio screaming over his body, he had become the victim target of much hostility. She had been shocked the first time she opened a letter, some of which were simply addressed to “Family of Jeff Miller, New York, NY”, to find a threatening letter. When she got a letter containing feces, she was stunned. Kelner, hearing these things, persuaded Elaine that a civil suit would offer her an opportunity to prove Jeff’s innocence. Finally, she consented but only, she told Kelner, if he kept it as far away from her as possible. With that, Kelner filed suit.

(In his book about the civil trial, The Kent State Coverup, Joe Kelner claims that “a couple days after the shootings…(he) received a call … from Elaine Holstein….” The story I have told is the one told to me by Elaine Holstein. I have also seen early correspondence from Kelner to Holstein that supports her version of events.)

After the suits were filed, the courts repeatedly tossed them out due to the doctrine of sovereign immunity. Sovereign immunity, a carry-over from feudal England says, essentially, “the King can do no wrong.” And, if the king can do no wrong, you certainly cannot sue him, at least not without his consent. Since all the named defendants were acting as agents of the state, they, too, were assumed to enjoy these extensive protections.

Getting into Court

Each time the cases were thrown out, the victim plaintiffs appealed. By 1973, the cases, now consolidated, had wound their way up to the Supreme Court which, on April 17, 1974, issued its opinion in what was now known as Scheuer v. Rhodes (416 U.S. 232). To many people’s surprise, the court voted unanimously to reverse the holdings of the lower courts and remand the case for trial. The Supreme Court summarized its holding as follows:

1. The Eleventh Amendment does not in some circumstances bar an action for damages against a state official charged with depriving a person of a federal right under color of state law, and the District Court acted prematurely and hence erroneously in dismissing the complaints as it did without affording petitioners any opportunity by subsequent proof to establish their claims. Pp. 235-238.

2. The immunity of officers of the executive branch of a state government for their acts is not absolute but qualified and of varying degree, depending upon the scope of discretion and (416 U.S. 232, 233) responsibilities of the particular office and the circumstances existing at the time the challenged action was taken. Pp. 238-249.
471 F.2d 430, reversed and remanded.

The 8-0 decision (Justice Wm Douglas recused himself because of comments he made after the shootings) allowed the civil lawsuits to proceed to a trial where the plaintiffs would have an opportunity to prove that the defendants had acted beyond the scope of their authority. With this green light, Bill Schroeder’s parents as well as the nine wounded students joined the legal action.

The 1975 Civil Trial

On remand, the cases were assigned to Federal District Judge Donald Young. Young, who had been appointed to the bench by Lyndon Johnson, set the trial date for May 1975. To everyone’s surprise, the court also announced that, in total, the plaintiffs were seeking $46 million in damages. This sounded like an outrageously high figure to many who didn’t understand that each individual suit had claimed its own amount and those amounts had then been aggregated to arrive at this surprising total. Nonetheless, this led many to condemn the plaintiffs as being out for “blood money.” For the parents of the dead, who had initially sought little to nothing in the way of monetary damages, the charge stung.

Discovery began with the plaintiffs’ attorneys deposing more than 100 individuals, including many guardsmen who had never before been subjected to cross-examination of their story. With new information and photographs turning up in support of the plaintiffs’ claims, the attorneys began to feel optimistic about their ability to prove the case. But storm clouds were brewing.

With many different attorneys having been hired by the various plaintiffs, a power struggle soon developed over who would act as lead counsel. In early spring, an agreement was reached that seemed to satisfy everyone when former Attorney General Ramsey Clark agreed to fill that role. Not only did Clark have a sterling legal reputation in 1975 but Judge Young obviously enjoyed the prospect of having a former attorney general try a case in his courtroom. (Both had been Johnson appointees.) Unfortunately, some of the other attorneys saw their own high profile opportunity slipping away and began sniping about Clark’s involvement. Within a few weeks, Clark decided the internal competitiveness would be “highly destructive and damaging to the interests of the clients.” At the same time, court action stemming from the 1971 Attica prison riots, with which Clark had also been associated, was also in the pipeline, providing Clark a reasonable excuse to pull out of the Kent State trial. With only one week to go before the trial began, the plaintiffs finally agreed that Joe Kelner, Elaine Holstein’s attorney, would serve as chief counsel.

Kelner was chosen because, having not been involved in the pretrial proceedings, he had not been part of the divisive in-fighting. And while Kelner had had a distinguished career, including a stint as president of the American Trial Lawyers Association, he had no experience with civil rights actions. Therefore, throughout the trial, he stressed the negligence aspects, with which he was more comfortable, while glossing over the important constitutional issues at play. Moreover, no one really considered until later how unfamiliar Kelner actually was with the facts of the case. Before the trial began, he’d never even been to the Kent State campus.

Two weeks before jury selection began, Kent State ‘celebrated’ the 5th anniversary of the shootings. That year’s memorial had more than the usual drama as, five days earlier, Saigon had fallen, finally ending the Vietnam War. Arthur Krause, along with many of the other victims and attorneys, had attended the May 3 candlelight vigil. There, he told the press that the students who had been killed and wounded should be thanked because of their role in bringing the Vietnam War to an end.

These mild comments brought a sharp rebuke from Judge Young who denounced Arthur for speaking at “the so-called memorial rally.” So-called memorial rally? Suddenly, the plaintiffs’ team, who had believed Young to be fair-minded, began to question that assessment. (Some believed that Young felt snubbed by Clark’s withdrawal and held it against the plaintiffs.) In addition, the judge issued a gag rule that was so expansive even I was cautioned not to speak about anything because I had spent about an hour with Arthur Krause and David Engdahl, one of the attorneys, during the vigil. (I had only been involved for about six months and that was my first trip to Kent.)

On the first day of jury selection, the victims found themselves confronted for the first time with the men who had caused their injuries and the deaths of their children. For many, it was stunning to see the (now mostly former) guardsmen, the monsters of their imagination, looking like ordinary men in their rumpled suits and sport coats. In the midst of the defendants sat newly re-elected Governor James A. Rhodes, perched in a special high-backed leather chair similar to the one used by the judge. Representing the defendants were Burt Fulton and Charles Brown. Underlining the claim that all the defendants had been acting in their legal capacity as agents of the state, Ohio had agreed to pay all of their legal fees.

Following initial motions, the judge introduced the plaintiffs and defendants to the prospective jurors to see whether they knew anyone involved in the case. With nearly 20 plaintiffs (seven parents of dead students as well as the parents of those wounded who were minors in May 1970) and 44 defendants, this was no small task. Still, no one expected what came next. First, the judge ordered all the plaintiffs to “stand” and face the jury. Several hesitated and looked at Dean Kahler, confined permanently to a wheelchair by a guardsman’s bullet. Young quickly realized his gaffe and exempted Kahler from the order to stand. Then, after reading all the plaintiffs’ names, Young began the process anew with the defendants. First on the list was Governor Rhodes whom Young addressed as “Governor James A. Rhodes. Your Excellency.” Your excellency?? Gasps could be heard in the courtroom and consternation rippled through the plaintiffs. Things weren’t getting off to a great start.

As Fulton and Brown began voir dire, the defense strategy became clear: demonize the victims. Repeatedly, they asked potential jurors whether they were members of or sympathized with the Weather Underground or Students for a Democratic Society. Of course, neither group had anything to do with what had happened at Kent State. The defense attorneys had adopted the strategy now perfected by the Bush administration – create a straw man and then knock it down.

Opening statements set the tone for the defense. Charlie Brown, virtually screaming, insisted that “burning, looting, rioting and terrorism were … the order of the day…. This was not a Mayday picnic,” he insisted, “but an insurrection!” Kelner, in his opening, acknowledged the weekend’s violence but insisted that his clients should not be blamed for others’ actions. Instead, Kelner argued that his clients had a right to peaceably assemble; that other methods of crowd control were available to the Guard and would have accomplished their goals; that an order to fire must have been given; and, that the guardsmen, unaware of all the photographs documenting their actions, had subsequently tried to cover up their actions.

Early on, reporters covering the case noted that Kelner’s “New York ways” seemed to be playing poorly with the jury. But the early witnesses went well. Photographers like Howard Ruffner explained the context of their vivid photos. Others testified to having seen some rocks being thrown but also guardsmen beating and bayoneting students on Sunday night, suggesting a predisposition towards violence. The defense attorneys concentrated on discrepancies in the testimony and the acts of violence preceding May 4, hoping to bury the jury in details unrelated to the shooting itself. When Kelner asked the judge to limit the scope of cross-examination, Young offered to do so if the plaintiffs dropped the charge that Gov. Rhodes had ordered the Guard into Kent without proper legal proclamations. Although this was one of the plaintiffs’ weakest claims, Kelner refused to accept the compromise and, for the rest of the trial, the defense remained free to pursue the most minute detail of the students’ behavior preceding the shooting. As a result, the trial dragged on throughout the summer and often lacked the compelling narrative needed to focus the jury’s attention.

On June 4, the plaintiffs called Harry Montgomery, an ex-Marine and Kent State student, who testified to having watched Sgt. Myron Pryor throughout the guard’s retreat from the practice field. According to Montgomery, when they reached the crest of Blanket Hill, Pryor tapped three or four soldiers on the back. Immediately after, the guardsmen ?click">made their dramatic pivot and started firing. Montgomery testified that he believed Pryor had given a signal to fire. Watching Canterbury and the other guardsmen during Montgomery’s testimony, one observer noted: “They didn’t seem shocked, outraged, or anything.”

Kelner, however, soon undercut the power of Montgomery’s testimony by calling two other witnesses who suggested it was Major Harry Jones, not Pryor, who gave the signal to fire. Those witnesses included Richard Love, a former guardsman, who suggested that Jones gave the signal with his baton. Even later, they further undercut Montgomery’s testimony when a sound specialist who had analyzed audio recordings of the shootings, testified that the first shot came from a .30 caliber rifle, not the .45 pistol carried by Pryor. Were the jury inclined to believe an order had been given, Kelner had so muddied the waters with his own witnesses that it was impossible to decide who had given it.

The plaintiffs, nonetheless, elicited some damning testimony from guardsmen besides Richard Love. Sergeant Lawrence Shafer, in early June, became the first guardsmen to testify publicly about his role in the shootings. Insisting that his life had been in danger, Lewis admitted shooting Joe Lewis who, he claimed, had been rushing him. Shafer confessed he did not feel panic and that he intended to shoot Lewis. He also admitted that, on Sunday night, he had struck a Vietnam vet because the student veteran had been giving him “guff.” William Perkins then claimed that a hundred students had come within thirty feet of him, an absurd claim ?CLICK">easily refuted with photographs. Several other guardsmen told the same general story but Larry Mowrer offered a refreshing alternative when he admitted to being ashamed of having fired his rifle at all, even though he had only shot into the air.

On June 18, the courtroom filled to hear Myron Pryor. To no one’s surprise, Pryor denied everything, going so far as to claim that he was little more than a paper pusher for the National Guard who was only present on the hill as a favor to Captain Raymond Srp. (The more conspiracy-minded suspected that, rather than doing Srp a favor, Pryor had wanted to be in on the action when it unfolded.) Pryor claimed to have done nothing more than follow the actions of others, ?click">crouching with his pistol aimed at the students for a full eleven seconds without ever firing. A ludicrous proposition, to be sure.

When the wounded survivors took the stand, they came under intense grilling. Defense attorney Burt Fulton, in cross-examining Alan Canfora, repeatedly referred to Canfora’s “alleged injury” and “claim to have been shot,” as if Canfora had shot himself. Charlie Brown suggested that the tube seen protruding from a pocket in John Cleary’s jacket was a lead pipe despite Cleary’s testimony that it was the cardboard cover from a tear gas canister that he had picked up as a souvenir earlier in the day. After Charles Deegan corroborated Montgomery’s story about Myron Pryor’s supposed signal to fire, Fulton, pointing to Deegan’s admission that he had mockingly shouted cadence to the troops as they retreated, asked whether Deegan himself had shouted an order to fire. Did you, Fulton asked Deegan, “do anything that could have created the incident?” When Deegan angrily denied this, Fulton belittled his statement in a tone that suggested Deegan must be lying.

On June 30, one of the most pernicious of all the lies told about the student victims was finally put to rest. In researching his Kent State book, James Michener heard a fantastic story that Captain Ron Snyder of C Company, 145th Infantry, had removed a pistol from the body of Jeff Miller after the shootings. Snyder also claimed to have taken brass knuckles from a student he had clubbed earlier in the day. Even Michener found these allegations hard to swallow but Snyder stuck to his story, even telling it to the special Ohio grand jury despite having told the Ohio Highway Patrol that the weapon allegedly taken off Miller’s body had been a “throwdown” and that the brass knuckles had been his own. Snyder earlier had told the federal grand jury that, after the first lawsuits were filed, the guardsmen were worried about their potential legal difficulties. Snyder, who was not involved in the shootings themselves, told his captain, “Well, hell, I got the answer to this thing. We got self-defense.” He told the story of the pistol and the brass knuckles and “the next thing I knew everybody had the information.” Everybody, that is, except Elaine Holstein who had never heard before that day the outrageous claim that her son had been carrying a gun. Kelner only mentioned it to her the day before he put Snyder on the stand. The revelation came as another terrible shock.

On the stand, Snyder admitted to concocting the entire tale but when Kelner tried to push about why he would have made up such a story, the judge cut him off, ruling that nothing that happened after May 4 was relevant. With that ruling, the plaintiff’s ability to prove a cover-up of what happened on the hill that day was effectively quashed.

The next day, another of Young’s rulings proved equally debilitating to the plaintiffs’ case. Major Harry Jones took the stand and denied having given a signal to fire, claiming instead he gave hand signals to “hurry up” and to “stay in formation.” Jones also claimed his life had been in danger. Yet this was in direct contradiction to his federal grand jury testimony when he stated unequivocally, “It’s my honest opinion that (the shootings) should not have happened. …it was against the concepts and procedures that we had trained in.” The jury, however, never heard this because Judge Young ruled that he was not “going to let every Tom, Dick, and Harry express his opinion on the ultimate issues in the case” (i.e., whether the shooting was justified.) Of course, Jones was hardly “every Tom, Dick, and Harry” but the judge had ruled and, from then on, no guardsmen would be asked their opinion of the propriety of the shootings.

This ruling became especially significant in late July when Adjutant General Sylvester Del Corso took the stand. During his federal grand jury testimony, Del Corso had answered not once, not twice, but sixteen times that he could see no justification for the shootings. But when Kelner tried to elicit this response during the civil trial, the defense objected and Judge Young again ruled against allowing this “Tom, Dick, or Harry” to give his opinion regarding the justification for the shootings.

In mid-August, it was finally the defense’s turn and, with most of the guardsmen having already testified as hostile witnesses, their case was relatively brief. A Kent policeman testified about Friday night’s downtown violence. A shoe store owner testified to the damage sustained by his business and his own fears for his personal safety. Colonel Donald Manley of the Ohio Highway Patrol called the protesters the most vicious people he had ever encountered. And Paul Locher, an Ashland College student visiting Kent State that weekend, said the kids were “out for blood.”

Finally, the defense turned to May 4, producing a most startling witness: Joy Hubbard Bishop. Bishop, a KSU sophomore in 1970, had been standing on the roof of Johnson Hall, overlooking the shooting scene on May 4. Remarkably, she testified that a man walking behind the guard as they approached the Pagoda pulled a pistol from his briefcase and fired into the air several seconds before the shooting erupted. Her story, of course, closely paralleled the curious incident with Terry Norman. Although Norman was not carrying a briefcase that day, the man who chased him over the hill following the shootings did. Possibly, Bishop had simply confused the details. Five years after the shootings, was the Guard now going to blame Terry Norman for the shootings?

Whatever their intentions, Bishop’s story quickly fell apart. Sociology professor Jerry Lewis remembered talking with Bishop after the shootings. She had also claimed back then that she witnessed the first shots but, rather than Terry Norman, she had singled out a guardsman with a .45 pistol (Myron Pryor). Moreover, standing on the roof with Bishop had been her roommate and her roommate’s boyfriend, neither of whom remembered her making any such statements at the time or later, as they drove her home when the campus closed. Furthermore, neither of them had witnessed what Bishop described. Pat Rivera, Bishop’s former roommate, told reporters: “I don’t think she’s lying. I think she’s just confused.” Others would be less charitable in their assessments.

The Threat

As the trial was finally winding down, two disturbing incidents occurred. One of the jurors, Douglas Watts, was dismissed after a co-worker told the judge Watts had called the plaintiffs communists. (Watts admitted using the term “misguided leftists.”) Soon after, another juror, Richard Williams, reported to the judge that he had been accosted by a burly man who pinned him to the wall and threatened to beat him and blow up his house if he didn’t vote a certain way. (Williams did not reveal how he had been instructed to vote.) Judge Young immediately sequestered the jury and called in the FBI but, after questioning the jurors as a group, he determined that none of them had been influenced by the threat. He allowed the jury, including Williams, to continue sitting but not before telling them “I’ve had blood on my hands from ignoring previous threats in other cases.”

On August 22, Judge Young, in 76 pages of instructions, offered the jury some 50 different potential verdicts for consideration. The instructions were so complicated that none of the sixteen attorneys caught all the errors contained in the convoluted multiple choice questions presented by the judge. Instead, the jurors who were left to sort out the complexities, seeking a number of clarifications as deliberations continued. Six days later, they finally announced they had reached their verdicts.

The Verdict

As the jurors filed back into the courtroom, people noticed that several of the women appeared to be in tears. Some plaintiffs knew immediately they had lost. Then the clerk began reading the verdicts. After naming each of the slain and wounded students, he announced, “We the jury … find in favor of the Defendants.” Several of the wounded students could no longer control themselves and shouted out, “They’re still murderers!” and “This trial’s a sham.” Although the clerk had announced the verdicts as 10-2 against the plaintiffs, when the attorneys asked that the jury be polled, three jurors repudiated the verdicts, siding with the plaintiffs. Since the attorneys had previously agreed to a 9 vote verdict, the switch of one vote made no difference. Adding insult to injury, Judge Young later ruled that the plaintiffs would have to pay the defendants’ legal bills of $72,000.

In Findlay, Ohio, a 22-year-old woman sat in a laundromat, washing sheets and towels in preparation for a reunion of college friends, when the verdict came over the television. She screamed and began crying. She was so distraught over the verdict, she had to call a friend to help her get home safely. (Yeah, me.)

The Appeal

The plaintiffs immediately announced plans to appeal based on various rulings by Judge Young that they claimed denied them a fair trial. While the attorneys put on a brave face for the media, behind the scenes, they cautioned everyone not to expect much from the appeals. Most likely, the case was over. The appeal was handled by the American Civil Liberties Unions, with San Francisco attorney, Sanford J. “Sandy” Rosen, taking the lead. Rosen’s appeal focused on the following alleged errors by Judge Young:

1. Terrifying the jury by making his “blood on my hands” speech and by not dismissing threatened juror, Richard Williams;

2. Refusing to allow the plaintiffs to use the federal grand jury testimony of the guardsmen;

3. Allowing the defense attorneys to dwell on pre-May 4 activities; and,

4. Allowing the defense to closely question various victims about their personal beliefs, in effect putting the victims on trial.

Oral arguments were heard by the Sixth Circuit Court of Appeals in Cincinnati on June 21, 1977. Rosen did not even get out his first sentence before the justices cut him off. “We all know the facts of this case,” they stated before throwing out questions which Rosen handled deftly. The appellate judges seemed exceptionally interested in the arguments and deeply attentive throughout with their harshest questions directed to the defense. Afterwards, the plaintiffs, their attorneys and supporters gathered in a hotel conference room. When Rosen walked in, everyone stopped and applauded. While Sandy cautioned everyone against being overly optimistic, reminding us that appellate courts go out of their way to avoid overruling district level judges, his smiles told us that he, too, felt the arguments had gone exceptionally well. It was hard not to feel optimistic, especially among a group of people who had had so few reasons for optimism in the past few years. At one point, Arthur Krause said to a small group of us, “I shouldn’t say this, so I didn’t, but I think we’re gonna win this thing.”

On September 12, 1977, Arthur’s prediction came true when the appeals courts ruled that the plaintiffs had been denied a fair trial. Krause v. Rhodes, 570 F.2d 563 (C.A.6 (Ohio) 1977):

Every litigant is entitled to a verdict which is free from improper influence. It was an error for the trial judge to determine ex parte and without personal interrogation that a juror who had been threatened and assaulted and told that his home would be blown up could continue to serve, unaffected by these incidents. The threatened juror should have been questioned by the court to hear his version of the reported incident and to learn whether he had discussed them with other jurors, including the possibility that he disclosed the way in which his assailant was attempting to cause him to vote. …Unless the court was completely satisfied after questioning him that there was no possibility that the threatened juror would be affected in the performance of his duties that juror should have been excused.

The Retrial

Everyone on the plaintiffs’ side celebrated that night but soon the hard issues resurfaced. Who would represent the plaintiffs in the new trial? Joe Kelner lobbied to be reinstated while the ACLU and David Engdahl, one of Arthur Krause’s original attorneys and a long-time stalwart advocate for the victims, pushed for Sandy Rosen, despite the fact that Rosen had never before tried a case before a jury. Engdahl wrote the victims a passionate seven page, single-spaced letter stating “It is time for all of us lawyers to try to be totally honest with you.” He then charged Kelner had made several “extremely serious mistakes” at the first trial and admitted the plaintiffs had been poorly served by their attorneys. Engdahl reminded the victims of the painfully chaotic situation that had led to Kelner’s initial selection as lead attorney. He even told them that, during the trial, one of the defense attorneys had told him Kelner was the defense’s best weapon. Kelner also wrote the plaintiffs, but before Engdahl’s letter so he never responded directly to the claims against him. Instead, he tried to impress on the victims that Rosen, their shining boy who had won this second opportunity, had his own flaws including the fact that many on an Ohio jury would likely regard the ACLU itself as a subversive organization. But when Elaine Holstein, Kelner’s original client, opted to back Rosen’s bid, the decision was made to go with the ACLU and Sandy Rosen.

Judge William Thomas was assigned to hear the second trial. Early on, he made several rulings that gave the plaintiffs reason for hope. In contrast to Judge Young, Thomas agreed to permit the plaintiffs to use the guardsmen’s grand jury testimony and to ask witnesses their opinion of whether the shootings were justified. He also ruled that the defense attorneys could not ask about the victims’ political beliefs unless it could be proved directly relevant. Despite these favorable rulings, Rosen remained “honestly pessimistic.” Earlier, he had earlier reached out to discuss settlement but the negotiations had gone nowhere.

By the time a jury had been selected in early December 1978, both the Akron Beacon-Journal and Cleveland Plain Dealer were reporting that an agreement had been reached on a monetary settlement. The amount still had to be approved by the Ohio State Controlling Board since the State, which had already allocated $380,000 for the retrial, would be paying the tab. Also still standing in the way was the wording on an apology, the only thing the parents of the dead students had ever wanted. They had sought an outright apology which defense attorney Burt Fulton dismissed as “totally out of the question.”

So, on December 19, 1978, the trial began. Opening statements sounded like a re-run of 1975. Then, Judge Thomas called a recess while he conducted hearings on another truckers’ strike. This gave the politicians at the Ohio State Controlling Board more time to consider the settlement. When the trial resumed, one day of witnesses were called before, on January 4, 1979, Judge Thomas announced that a settlement had been reached.

The Settlement

The plaintiffs agreed to drop their lawsuits, along with any future claims, in return for $675,000 in damages. $50,000 of that went to lawyers’ fees and $25,000 to appellate costs while more than half the remainder, $350,000, went to Dean Kahler, paralyzed for life. The remaining wounded received amounts ranging from $15,000 to $42,000 depending on the nature and severity of their wounds. The parents of the dead each received a mere $15,000. In addition, all of the twenty-eight remaining defendants, including Governor Rhodes, signed a “statement of regret”:

In retrospect, the tragedy of May 4, 1970 should not have occurred. The students may have believed that they were right in continuing their mass protest in response to the Cambodian invasion, even though this protest followed the posting and reading by the University of an order to ban rallies and an order to disperse. These orders have since been determined by the Sixth Circuit Court of Appeals to have been lawful.

Some of the Guardsmen on Blanket Hill, fearful and anxious from prior events, may have believed in their own minds that their lives were in danger. Hindsight suggests that another method would have resolved the confrontation. Better ways must be found to deal with such confrontations.

We devoutly wish that a means had been found to avoid the May 4 events culminating in the Guard shootings and the irreversible deaths and injuries. We deeply regret those events and are profoundly saddened by the deaths of four students and wounding of nine others which resulted. We hope that the agreement to end this litigation will help to assuage the tragic memories regarding that sad day. (emphasis mine)

In announcing the settlement, the plaintiffs cited several goals they believed had been achieved, including:

(1) holding the state of Ohio accountable for the actions of its officials and agents;

(2) demonstrating that the excessive use of force by the agents of government would be met by a formidable citizen challenge;

(3) exhaustively utilizing the judicial system to demonstrate that the system can work when extraordinary pressure is applied;

(4) asserting that the human rights of American citizens, particularly those citizens in dissent of governmental policies, must be effected and protected; and,

(5) obtaining financial support for Dean Kahler, confined to a wheelchair for a life as result of his wounds.

Asked privately how she could justify accepting such a paltry sum and weak “apology,” an emotionally exhausted Elaine Holstein replied, “How can I stand on principle when Dean can’t stand at all?,” a perfect answer for her disappointed friend. When Rosen was asked whether the settlement served the interests of justice, he answered honestly but cynically, “There is no such thing as justice. We just try to serve the needs of our clients.” Considering how emotionally devastating another defeat would have been for the victims, Rosen succeeded by that standard.

And so eight and one-half years of litigation came to an end. In a post-settlement statement, the plaintiffs said:

Through our long legal and political struggle, we have become convinced that the present federal law which protects citizens from the deprivation of their civil rights by law enforcement agencies … is weak and inadequate…. A citizen can be killed by those acting under color of law almost with impunity…. We are simply average citizens who have attempted to be loyal to our country and constructive and responsible in our actions, but we have not had an average experience. We have learned through a tragic event that loyalty to our nation and its principles sometimes requires resistance to our government and its policies -- a lesson many young people, including the children of some of us, had learned earlier. This has been our struggle – for others this struggle goes on. We will try to support them. (emphasis mine)

Three and a half decades have passed since the events of May 4, 1970 shook the nation. For every question answered, a new question lingers. But, in the end, perhaps the best summary comes from James F. Ahern, former police chief of New Haven, Connecticut, whose thoughtful approach to student unrest, combined with the open-minded approach of Yale University President Kingman Brewster, prevented the 1970 May Day rally at Yale from exploding in violence. Ahern, appointed to the The President’s Commission on Campus Unrest (Scranton Commission) said later:

A group of bedraggled, ill-trained, poorly led … people who happened to be wearing National Guard uniforms – an army in a police situation – marched among “the enemy” … their rifles locked and loaded. Short on sleep and patience, caught in a crowd they had been assured was antagonistic toward everything they held sacred, a few of them came to see the Kent State campus as a free-fire zone. Assaulted with rocks, insulted and jeered and harried, marched on a fool’s errand down a hill and back again, they reached a turning point in American history.

Even today, when we can only speculate about exactly what triggered the gunfire, these findings of the Scranton Commission remain uncontradicted: “The indiscriminate firing of rifles into a crowd of students and the deaths that followed were unnecessary, unwarranted, and inexcusable.”