473 F.2d 1113 (1972)
In March 1969, seven individuals later known as the D.C. Nine entered the Washington, D.C., offices of the Dow Chemical Company without permission and destroyed property there.1
On Saturday, March 22, 1969, the appellants broke into the locked fourth floor Dow offices at 1030 15th Street, N.W., Washington, D.C.2 They threw papers and documents about the office and into the street below.3 They vandalized office furniture and equipment.4 They defaced the premises by spilling about a bloodlike substance.5 The prosecution proved its case through Dow employees who testified as to the lack of permission and extent of damage, members of the news media who had been summoned to the scene by the appellants and who witnessed the destruction while recording it photographically, and police officers who arrested appellants on the scene.6
The defendants were charged in a three-count indictment with second degree burglary and two counts of malicious destruction of property.7 Following their arraignment on June 20, 1969, all save appellant Robert Begin elected interim joint representation by Philip Hirschkop, Addison Bowman and Caroline Nickerson.8 Mr. Begin was represented by Edward Bennett Williams.9 All attorneys were court-appointed.10 At the pre-trial conference held on January 29, 1970, Judge John H. Pratt received motions from several defendants seeking to dispense with counsel and represent themselves.11
On February 3, 1970, the court held a hearing on the pro se motions of five defendants.12 After questioning the movants about their education and legal training, none of whom had formal legal training though some were highly educated and articulate, the judge denied the motions in an oral opinion.13 He emphasized the lack of legal training, the multi-defendant context, and the seriousness of the charges as creating risks of disruption and prejudice.14 Four additional defendants then made oral motions to represent themselves, which the judge also denied for the same reasons.15
The trial commenced on February 4, 1970, with jury selection having occurred the previous day and that morning.16 Defendants were permitted to make opening statements and to testify in narrative form, but motions, objections, and witness examination were required to be made through counsel.17 During the trial there were disruptions, including one on February 6 when a defendant referred to the Vietnam War, leading to objections, marshals seating defendants, ejection of spectators, and a fight involving defendant Slaski, after which the courtroom was cleared.18
Prior to the opening of the defense case, defendants Catherine Melville and Bernard Meyer entered pleas of nolo contendere to one count of malicious destruction of property.19 The remaining charges were dismissed.20 They are not before us on this appeal.21 The defense case consisted entirely of defendants’ testimony.22 The judge refused to instruct the jury that it could disregard the law as he gave it to them.23 He also refused to instruct the jury that moral compulsion or choice of the lesser evil constituted a legal defense.24
The jury acquitted the defendants on the burglary charges but convicted them on the lesser-included offense of unlawful entry and on the malicious destruction counts.25 Sentences imposed included terms of one to three years imprisonment with probation after six months for some appellants, an indefinite sentence under the Federal Youth Corrections Act for another, and concurrent prison terms for the others.26
Whether the trial judge erred in denying defendants’ timely motions to dispense with counsel and represent themselves?27
The right of pro se representation under 28 U.S.C. § 1654 must be recognized if timely asserted before trial, accompanied by a valid waiver of counsel, and not waived expressly or constructively by disruptive behavior.28
Yes. The defendants asserted the right at the January 29, 1970 pre-trial conference and February 3, 1970 hearing, well before jury selection and trial commencement on February 4, 1970.29 The established facts show the judge denied the motions citing lack of formal legal training, the multi-defendant setting, and possible disruption risks, yet the defendants and counsel repeatedly assured the court of no disruptive intent and the record reveals no pre-ruling conduct amounting to constructive waiver.30 The possibility of future disruption does not justify denial when the statutory right is timely claimed, and any resulting management issues could be addressed through severance rather than forfeiture of the right.31
The erroneous denial of the pro se right requires reversal and remand for a new trial.32
Related opinions on this issue
Chief Judge Bazelon concurs in the Court’s discussion of the statutory right of self-representation in criminal cases.33 In view of the holding that the statutory right is unqualified, the decision need not rest on the asserted constitutional right to proceed pro se.34 He emphasizes that his concurrence reflects no retreat from the position he expressed thirteen years ago in Brown v. United States that the sixth amendment guarantees a defendant the right to act on his own behalf in resisting a criminal prosecution.35
He agrees that the right must be honored when timely asserted and not constructively waived by disruptive behavior.36
Circuit Judge Adams concurs that the right to proceed pro se is statutory and waivable, either expressly or constructively, for example by untimely assertion or by disruptive behavior.37 He disagrees with the majority’s factual conclusion that the defendants’ behavior did not amount to constructive waiver.38 A careful review of the transcript shows that the defendants on many occasions interrupted the proceeding for various reasons despite being represented by counsel.39
The trial occurred during a period of passionate political dissent and closely followed the Chicago Seven trial.40 The judge was faced with a formidable task of preserving judicial atmosphere while taking account of the defendants’ asserted rights.41 What transpired, coupled with the real threat of further disruption, was sufficient to alert the trial judge that granting the motions would turn the trial into a shambles.42
His determination was reasonable, and Adams would affirm the rulings that the defendants had to be represented by counsel.43
Whether the judge erroneously refused to instruct the jury of its right to acquit appellants without regard to the law and the evidence, and refused to permit appellants to argue that issue to the jury?44
Although juries possess an unreviewable power to acquit in disregard of the law, courts are not required to instruct jurors on this prerogative or permit argument invoking it, because explicit recognition risks undermining the rule of law and inviting anarchy.45
No. The trial judge correctly refused both the requested nullification instruction and permission to argue the issue to the jury.46 The established facts show the defendants sought to justify their actions by reference to the Vietnam War and moral compulsion.47 The governing precedent establishes that the jury's power of lenity operates as an informal safety valve without formal judicial endorsement.48 Providing an explicit instruction would remove the constraint that keeps the prerogative exceptional rather than routine.49
The refusal to instruct or permit argument on jury nullification was not error.50
Related opinions on this issue
Chief Judge Bazelon dissents on the jury nullification issue.51 At trial the defendants made no effort to deny that they had committed the acts charged.52 Their defense was designed to persuade the jury that it would be unconscionable to convict them of violating a statute whose general validity they did not challenge.53
An instruction on nullification, or at least some argument to the jury on that issue, was therefore the linchpin of the defense.54 He would require the trial court on remand to grant defendants’ request for a nullification instruction.55 At the very least he would require the trial court to permit defendants to argue the question before the jury.56
In his view the power serves an essential function as spokesman for the community conscience in determining whether or not blame can be imposed.57 The deliberate withholding of information about the power is unjustified, particularly where the defendants’ entire defense rested on persuading the jury that conviction would be unconscionable.58
Circuit Judge Adams concurs with the majority that no instruction or argument on nullification was required.59 Since he would not reverse the convictions based on violation of the right to self-representation, he need not express an opinion on the issues of jury nullification and the charge to the jury.60 With regard to these latter questions, Judge Leventhal’s statement of the law is wholly acceptable.61
He would affirm the judgments on that basis as well.62
Whether the instructions actually given by the court coerced the jury into delivering a verdict of guilty?63
No. The instructions correctly stated the governing law on burglary, malicious destruction, and unlawful entry.67 They properly informed the jury that the Vietnam War and broader societal issues were not before it.68 The established facts show the charge contained no language directing a verdict of guilty.69 It stayed within the traditional judicial role of declaring the law, which is not coercive merely because it rejects the defendants' proffered defenses.70
The instructions were not coercive.71
Related opinions on this issue
Circuit Judge Adams concurs that the charge as given was proper and within the judicial function.72 With regard to the charge to the jury, Judge Leventhal’s statement of the law is wholly acceptable.73 Based on this and on the conclusion that the pro se right was not violated, he would affirm the judgments of convictions.74