"I would too, if I were you. With what's happening in Chicago"—the judge glanced toward Richard, the beau ideal of a hippie troublemaker—"I'd move to postpone."
"My motion, your honor, is to dismiss."
The judge exchanged a look with Repucci, who rolled his eyes.
"All right." The judge pushed back in his chair, ending the sidebar conference. "Let's hear it."
On his way back to the defendant's table, Sean noticed a man who'd slipped into the courtroom and was now seated in the rearmost row. Sean noted his close hair, his civilian clothes, the pad on one knee. He thought of Hubert Humphrey, how Johnson's agents trailed him everywhere in the campaign, taking down whatever he said, to be sure he did not criticize the President's war policy, even slightly.
A moment later Dillon was on his feet at the table, his papers spread, Richard seated beside him.
"Your honor, I move to dismiss the charges against Mr. Dillon in this case on the grounds that this prosecution is consequent to a response by the United States government to Mr. Dillon's admitted, initial violation of the law that is itself illegal. I have a brief here. . . "Dillon handed a pair of folders to the clerk, who had come forward for them. He carried one to the judge and the other to Repucci. While Dillon spoke, the judge and prosecutors read. "On October twenty-first of last year, Richard Dillon did knowingly part with his Selective Service registration, his draft card, in violation of Section 172B of the Selective Service Act. Since Mr. Dillon's registration, together with one hundred and twenty-seven others, was delivered to authorities representing the attorney general, there was no effort to hide or deny the violation. The attorney general was bound to prosecute that violation according to procedures outlined in the law, but instead, on October twenty-third he forwarded
Mr. Dillon's registration to the office of General Lewis B. Hershey, director of the Selective Service Administration. General Hershey, in further violation of the law, issued a directive on October twenty-sixth addressed to Mr. Dillon's draft board, ordering its members, first, to reclassify Mr. Dillon from 2-S to 1-A and, second, to conscript him forthwith into American military service. This represents a perversion of the Selective Service for purposes of punishment and of political control. The government's implicit claim to be defending Selective Service against. . . "Dillon veered, in order not to mention the targeted group, Resist. It would not serve his purposes to cross Hoover's line. "...is false. The government's action itself represents the threat to Selective Service. As such, it strikes at the heart of a system that exists by explicit act of Congress solely for the purpose of raising an army to defend the interests of this nation."
Dillon had taken the court by surprise. His preliminary motion had become a speech, but so far neither the judge nor the prosecutors had mustered an objection. It amazed him how easy this was, quick turns on the shiny surface of the language. At this—if not his own work—he was a natural. He should have been lawyering all these years.
"My client rejected the government's act of conscription because, for his own reasons, he did not recognize it as having proper authority. Whatever his reasons, he was right. The government should have prosecuted him for failure to maintain in his possession his Selective Service document. Instead, it improperly reclassified him—he was still eligible for student deferment—and drafted him. His refusal to report for induction and his subsequent flight to avoid prosecution are both rendered moot by the fact that his conscription was illegal."
The judge slowly began to shake his head. "In order to dismiss on these grounds," he said, "I would have to see evidence of direct causation, linking the conscription order to the young man's draft card burning."
"He did not burn the card, your honor. He turned it in to a government official."
"I still need the link."
"It is available, your honor." Dillon lifted two more pages from his table. The clerk again carried them to the judge and the prosecutors. "I am going to subpoena these official government records. As you will note, of the one hundred and twenty-seven other men who turned in their draft
cards on October twenty-first, one hundred and fourteen of them were reclassified and drafted within weeks. Of the thirteen who were not, six were already classified 4-F and two were already classified CO."
The judge peered toward Dillon without responding for a moment. Then he curled his hand. "Approach, please, gentlemen."
Dillon and the two prosecutors once more went to sidebar.
The judge cupped his hand over the small microphone, the stenographer's supplementary recording device. He leaned close to Repucci. "What's the government's disposition on this material?"
"Your honor," Repucci whispered, "correspondence internal to a defense-related agency is privileged—"
"That's ridiculous," Dillon said, eyeing the man directly. "If you have problems with providing those communications, it's because you see it will undercut government cases against one hundred fourteen other men, and probably many others." Dillon faced the judge. "The issue here is crucial, your honor. The Selective Service System is being perverted."
Dillon did not say it was being perverted in precisely the way he himself had perverted it in Chicago twenty-eight years before.
The judge was ignoring Dillon to glare at the prosecutor. "I'm going to have to rule on this, if this case proceeds. I'm going to need this material."
"Your honor, I..." A line of sweat had broken out on Repucci's upper lip. This was to have been a third-rate slacker case. Repucci was out of his depth, and showed it.
The judge said, "If you want a short recess to ... consider the issue ... I'll grant it."
"Yes, your honor. Please."
The judge reached for his gavel, lifted it, then stopped. "General, you state in your outline that this correspondence is on file in dated folders at Selective Service headquarters. How do you come by that information?"
Dillon did not flinch. "We have sources inside the Selective Service administration who object quite strenuously to its perversion."
"Who?"
"That is privileged information, your honor, and irrelevant." Dillon's authority matched the judge's. "The records in question are easily available to this court, and will speak for themselves. You could have the file from headquarters this afternoon."
"Nevertheless—"
"Your honor, as a young attorney in 19401 participated personally in the drafting of the original Selective Service legislation. I represented the FBI, and I know from my own experience there were some in the Bureau who wanted to use the draft as a way of extending government jurisdiction over nefarious mobsters. But it was clear the American people would accept conscription—this was in peacetime—only if its purpose was absolutely restricted to raising an army. It is a principle that must be protected in a free society."
Dillon knew full well what a hypocrite this speech made him. The hypocrisy was implicit in the very arc of his life.
The judge did not react for what seemed a long time.
Finally he said once more, to the prosecutor, "I'm going to have to have this material." He brought his gavel down sharply once, facing the open court. "Short recess!" He banged the gavel again and stood.
"All rise!" the bailiff called as the judge left.
Richard and Sean remained at their table after the prosecutors had hurried away.
Richard couldn't help himself, the amazement he felt, the twin thrills that his father was doing this for him and that his father was so good. He leaned across, cupping his mouth. "We have a source in Hershey's office? God, Dad, how'd you come up with that?"
Sean looked at his son. "I didn't," he whispered.
"What do you mean?"
"There is no source."
"You just said ... Isn't that perjury?"
Dillon shook his head. "Nothing a lawyer says in court is under oath. Only witnesses are sworn. You know that."
"But Christ, it never occurred—"
"Law school is where you learn how it's supposed to be. In court you learn how it is. Lawyers are always making things up."
"How'd you know for sure about the files?"
"I don't. I'm guessing. If I'm right, they won't want to produce them. I'm sure Hershey ordered your conscription and that of your friends. I'm not sure he's dumb enough to have kept copies of the letters he sent to the local boards. But he may be." Sean's grin returned. "Think of it, kid, a numbskull four-star general!"
Richard laughed out loud, and for a moment the two men were bound
by their secret. Sean recognized his son, the renegade outsider, as
his,
and Richard saw in his father, for the first time in years, a flash of the man he hoped to be himself.
Richard, finally, leaned back to his father. "Hey, Dad," he whispered.
"Yeah?"
"Cheer for the Redskins."
Twenty minutes later the court reconvened, as sparsely attended as before, although once again, the observer had taken his seat in the rear.
The judge eyed Repucci. "We have a motion to dismiss before the court. Does the government have anything to say about it?"
Repucci stood, fussing nervously with his notes. "Your honor, if it please the court. The United States would like to enter its own motion for the court's approval of dismissal ... a preceding one."
The government's dismissal! Richard had to bite his tongue to keep from yelping. His dad had pulled it off!
Repucci said, "Rather than compromise the integrity of internal defense-related communications, the United States is reluctantly prepared to move to quash the indictment in this case."
The judge peered across at Dillon, who said at once, "On the condition, your honor, that the termination of prosecution is with prejudice, so that the government cannot recommission the charges"—Dillon waited for Repucci to look over at him and nod—"the defense withdraws the prior motion."
Repucci, still reading from notes, entered the motion to dismiss, then brought his face up, raising his eyebrows expectantly.
The judge picked up the gavel, but asked Dillon, "For the record, do we have assent from the defense?"
Dillon stood. "Your honor, before assenting, my client would like to address the court."
Richard, startled, scooted forward on his chair, staring up at the judge, who only then seemed to take notice of the anxious young man next to the general.
The edge in the judge's manner softened as he said quietly, "We'll hear it."
Sean sat down, unsure himself why he had enabled his son's speech, or what his son would do with it. He glanced back toward the agent in the rear. Whose? he wondered. Westmoreland's? Clifford's? Hoover's? Johnson's himself?
Richard stood up slowly. "Your honor, I'm not sure what others think is happening." He glanced over at Repucci, who, red-faced, showed as much impatience as he dared by turning his palms out, and only then sitting down.
Thomas Jefferson, the ponytail, the shirt. Richard remembered a kid on the stage at Gaston Hall—where this all began for him—saying that Ho Chi Minh quoted Thomas Jefferson.
But whatever others made of him, Richard Dillon was no revolutionary to himself at that moment. He said almost timidly, "I wanted the chance to say what I think is happening. I love this country ... I know what's happening in Chicago ... I guess we all do." Richard looked hard into the judge's face. His legs felt rubbery and his voice seemed caught in his lungs. The faint whine of air conditioners could be heard in the room. "What I love about America is how it keeps trying to correct itself. It makes mistakes like other nations, but someone rises up to point to those mistakes, like Martin Luther King did. And now, in Chicago, and, well, maybe, here in this courtroom, average people are rising up...
"I understand that my father ... I mean my lawyer. . . has found a technical mistake that the government has made in bringing this case, that it drafted me instead of going right ahead and putting me in jail. But the mistake I care about is not technical." Suddenly Richard's voice broke free of his shortness of breath, and the sponginess disappeared from his legs. The air of timidity fell away. His hand came up in a fist protruding from the blousy sleeve of the colonial shirt.
"It's the mistake America has been making in Vietnam. That's the one I wish you would rule against, your honor. Not the pseudo-injustice that has been done to me or some other draft resisters, but the brutal injustice that is still being done to the people of Vietnam."
Richard swept his flamboyant arm toward the vacant jury box. "I came here thinking I wanted to address a jury about this, but, your honor, you are a judge. In our system, you are the protection against the misbehavior of our government, which is my father's point. But he brought before you the wrong malfeasance. You could do something about it right now. You have power to speak to and for America that no one in Chicago has. Vietnam is the malfeasance! Vietnam is the crime! It is an illegal, unconstitutional and unjust war. Would you rule against that, your honor? I beg you, please."
Richard sat down abruptly.
The judge did not move. Was it true, what he could do?
The silence had a hollowness to it, as if the words that had just been spoken remained in the room, floating above it, a kind of shell within which an echo bounced. The young man had evoked a sense of the presence, in that very space, of whom? Others like him? Or of the human beings elsewhere on the earth who cried only "Stop!"
Sean Dillon was thinking of those long black envelopes, aligned like dominoes, on the apron of the air base at Tan Son Nhut.
He lifted a deferential finger to the judge, who nodded.
Sean stood up. "Your honor, if it please the court."
The judge made no move to stop him.
"Obviously, my son and I are in complete and total divergence in our views on two matters. First, the conduct of the United States government in this case is not a mere 'technical' mistake, but an assault against the very core of our democratic system, and it must be checked. Secondly, the American effort in Vietnam is not in my view a 'mistake,' much less a 'crime,' but a purpose undertaken for the best of reasons, to limit the unjust aggression of a Communist power."