Editors: This is DJB’s account of a noteworthy trial involving abortion and a woman’s right to choose, published by In Pittsburgh, April 25, 1990.
DJB: “I’m proud to say I often practiced New Journalism in the 1980’s & ’90s. Inspired by John McPhee, Joan Didion, Tom Wolfe, and other New Journalists, I seized upon the new freedom afforded me by the simple but true understanding held by New Journalists: Objectivity is a fraud. I was writing a lot of journalism and wondering if I continued to strive for objectivity in my reporting would I be committing fraud against the public in the name of good journalism, in the name of truth? Instead, I realized the appallingly obvious about objective journalism: If I was on the scene, reporting, I needed to fess up and say I was there. By seeking objectivity, I was abandoning nuance, personal insight, and other elements which go into telling the truth, beyond a box score account of events. Deeper understanding replaced objectivity as the higher value. I became a better reporter.“
The Abortion 68 get their day but not their way in court
Step inside a pre-trial prayer meeting of the Abortion 68. It’s strictly closed-door and sacrosanct, defendants only. On this day of proceedings, the faithful have assembled snugly into their assigned conference room and are now in the middle of a hymn, one of those droning devotional numbers from the liturgy of Operation Rescue, aka Save the Babies. All about, defendants (rescuers) stand or kneel or sit in the same laying-on-the-hands position: head bowed, arms three-quarters raised, palms turned anointingly downward. They sing, and we’d better sing too or we’ll get tossed out of here and miss the best part of a trial which has seized the city’s attention not merely because of its Old Testament proportions, but because for many observers this trial, in a fabricated courtroom of the David L. Lawrence Convention Center, is expected to be another beachhead battle in the war of Roe vs. Wade.
That is not what Common Pleas Judge, the Hon. Robert E. Dauer, says it will be. He thinks he’s trying a case of failure to disperse upon official order, but the Abortion 68 know the truth, and are combat-ready for a far far greater thing than a misdemeanor carrying up to an utterly unlikely two years in prison.
“We are part of the Army of God!” declares Richard Gardner, 33, who stands before the assemblage with The Good Book open on his palm and supremely defiant confidence in what is an otherwise obtuse face. He speaks, of course, with brimstone fervor. “God is putting abortion on trial! The judge and district attorney keep saying that this isn’t a trial about abortion, but then all they talk about is abortion! We pray that God will strike confusion into the minds of our enemies, just as He struck confusion into the minds of the enemies of the Israelites!”
Gardner is leading the ecclesiastic pep rally with another defendant, Father John Osterhout, 38, whose dark Franciscan robe, shiny pink patinaed dome, and beatific countenance, present him as nothing less than a living Christian Brothers caricature. “The lawyers want to come in now,” says Father John, “but we’re going to keep them out for just a few more minutes so we can talk in private.”
Gardner, a Bible-thumping Protestant working in close tandem with his placid Catholic brother, asks the multitude if anyone has something to share. Three people take turns reading scriptures found in the Concordance under “trial,” the last reader being the young and surburbanly hip Todd Aglialoro, 18, who reads so quietly he surely cannot be heard more than a few feet away. But no matter. As we shall see, these folks, when unable to hear what is spoken to them, do not always ask the speaker to speak up.
To close, Father John leads us all in the Lord’s Prayer. But see there: The defense lawyers have entered the conference room, 17 of them, all but one of whom is court-appointed. “Our Father who art in Heaven, hallowed be thy name . . .” The lawyers don’t so much as move their lips but stand mutely smug (or smugly mute) in their swank suits and haircuts. Being appointed, they’re making only $150 a day off this trial, while, conversely, on a good day of private practice criminal lawyering they could be pulling down $700. Looking at them, one thing is stone clear, and will be confirmed many times in the coming days: Regardless of what purpose God has for this case at law, abortion is not on trial here for these wise guys.
“Remember,” Gardner shouts final encouragement above the din of the shifting crowd, “keep a good sense of attitude in there.”
So, into the baptismal fire we go. The courtroom is next to a lounge, over the entrance of which hangs a bright yellow sign depicting a martini glass, with olive, and down the hall is a local union of jolly hotel workers holding a hurray-for-us celebration, complete with pink and yellow balloons and bursts of laughter which occasionally co-mingle with the courtroom’s more sober sounds.
Custodians have done their best to reproduce judicial solemnity in the convention hall, most especially draping a raised platform in dark brown cloth to simulate a judge’s bench, but the bright orange cloth-covered decorative squares on the wall, the two dozen rows of red-cushion folding chairs, and the 18 microphones wreck the effect. No mistaking it: We are in a convention hall, where the luncheon speaker always starts with a joke.
It seems fitting as the jury enters, Judge Dauer follows immediately without fanfare (no “All rise” business by the bailiff) and before ascending to the bench he stops to banter with the jury. Judge Dauer is a fat, jovial man whose pale white head is hairless as a baby’s butt. Come to think of it, with that pinched face, and the judge’s robe tucked in tightly around his neck, he looks like an enormous infant.
The Abortion 68 have drawn a smaller turnout than anticipated. There are plenty of empty seats, but many of those who came brought their rosary. A faint jiggle of beads provides counterpoint to the clunking microphones and squealing bursts of feedback.
As we begin, the first of dozens of sidebars is called and 29 men and women, including the 11 rescuers who have chosen to defend themselves, swamp the bench. Judge Dauer is swallowed in a sea of litigious persons. The lawyers do the talking. The 11 rescuers stand by in rapt curiosity, witnessing this officially private rite which will help determine their fate. They have refused the protective layer of skin a lawyer provides, though they themselves have no more experience as lawyers than they do as nuclear sub commanders. In this way, they believe they will speak out publicly and forcefully against the 1.5 million abortions performed each year in the U.S.
Assistant District Attorney Michael Pawk, whose sarcastic tongue is honed razor-sharp by his fine lawyerly skill, constructs his case painstakingly, calling to the witness stand most of the cops who on the morning of October 28, 1989 worked the demonstration at Allegheny Reproductive Health Center (abortuary to the rescuers, though Judge Dauer, who says he has never heard such a word, will not allow it to be said in court). The cops have been sequestered in the cocktail lounge, and enter one after another to provide an account of the fray, studded with redundancies.
Summarized, the prosecution’s story is as follows. Knowing a weekly protest would be staged in Broad Street Mall that Saturday and having already determined they would charge the demonstrators with failure to disperse, Pittsburgh police arrived at “oh-six-hundred hours” and set up aluminum chain-link “Little League” fences at both ends of he mall. On schedule, about 150 demonstrators showed up and milled about outside the barricades. Shortly thereafter they were joined by a group of transvestites calling themselves Church Ladies for Choice who mounted a small counter-protest. Then several demonstrators “crashed through the fences,” toppling one chain-link section on top of a police officer who remained pinned from the waist down as four demonstrators walked on top of the fence. Another 75 demonstrators poured into the mall, ran for the front of the health center, knocking another cop to the ground, sat down on the sidewalk and began singing and chanting. The Abortion 68 saw it differently. They were peaceful souls only trying to save the helpless unborn. They sang hymns and prayed aloud.
“There were some insulting remarks made to me,” testifies Officer Paul Renk, 44. “Things like, ‘How much do you get for protecting murderers?’ ‘Judas,’ things like that.”
Eventually, Commander Herman Mitchell, 59, stood directly before the demonstrators and addressed them, informing them they were in violation of PA Crimes Code Section 55 02: failure to disperse. On the witness stand, recounting he gave the order twice, Mitchell breaks into the high-pitched police chant of officialese he used on the demonstrators: “At this present time . . .” Pawk asks if anyone obeyed the first order to disperse. “Not a one,” says Mitchell. And did anyone obey the second order? “Not a one.”
They were busted, one by one. Most got up when tapped on the shoulder by an arresting cop and walked to the paddy wagons where they were photographed; others were carried “four on one” – one cop per limb. A few demonstrators laid down in the path of the paddy wagons. The mall was cleared by noon.
Having testified to this account, each cop is asked by Pawk to go around the room and point out people he recognizes as having been sitting in front of the reproductive health center when Mitchell gave the order to disperse. Thus, the trial is reduced to simple finger-pointing, and the best finger-pointer of all is Renk, a hard-nosed John Law with silver hair and down-turned mouth. Renk works the overnight shift, but that morning in October he was called to the demonstration as reinforcement. Renk steps to the first defendant and points to her with a loud finger-snap, as if getting the attention of a drunk Pitt student urinating in the gutter. He quickly moves on to the second defendant with another snap. He is slowed down by Pawk who is slightly embarrassed by this display. It is also Pawk’s duty to intone these indicting words for the court after each defendant is identified: “Let the record reflect that the witness has pointed to . . .” to which Judge Dauer echoes: “The record will so reflect.”
The Abortion 68 are told repeatedly by Judge Dauer to keep their heads out of their laps. About half are plucked from the tree of innocence, including Gardner (by five cops), and the young, quiet, and visibly unnerved Todd Aglialoro. It comes out, Father John arrived late, was not on the scene at all when the order was given, but managed to sneak in after the arrests started. “He did everything he could to get arrested,” says Renk. Finally, Pawk asks the cops to identify the same people in group photos taken that day. When all the pointing is done, Pawk steps to his score card, a large easel on which he has a multi-page “defendant list” and makes an X next to the name of each person fingered by the cops.
For comic relief there is Joann Duncan, owner of the E & J Luncheonette, opposite the abortion clinic. Her eyes squint with enmity for “these people.” Every Saturday their demonstration obliterates her business. She testifies she heard the order to disperse from across the street, and she saw no one get up and move.
Cross-examination begins each time with John Broderick, who has flown in from Long Island on anti-abortion wings to represent 41 rescuers. Is this doofus making $6,150 a day? Picture Art Carney with a flattop, a champeen beer belly, and no sense of humor. Broderick blusters into the microphone questions which belie his emerging strategy. No attempt will be made (because no attempt will be allowed, for intent is not an issue here) to justify Operation Rescue or his clients’ presence at the abortion clinic. Instead, playing by Judge Dauer’s sharply defined rules, Broderick tries to prick pin holes into the cops’ testimony. “Is it possible that the fences could have been knocked over by someone leaning against them? Isn’t it true that you saw these defendants this week in this building? Isn’t it true, officer, that only a portion of that defendant’s face is in this picture?”
Take note of one of Judge Dauer’s many astute observations: “The hardest part about this case is the bookkeeping.” After Broderick finishes his cross-examination Judge Dauer must read through an absurdly long list of lawyers and self-representing defendants. Nearly all of them call out, “No questions, your honor.”
One lawyer steps over to the media table and whispers, “I’m going to sit quiet and cruise right through this. My client’s not in the pictures.” He explains how a case exists against a defendant only if he is identified both in person and in a photo. But some of the Abortion 68 can not pass up this opportunity to play lawyer. In particular, there is Robert Irwin, 37. From his seat at the counsel’s table, Irwin watches each witness with Snopesian hatred in his face, until it is his turn to cross-examine, when he seizes the microphone and stalks in front of the witness stand like a man crazed with new-found power, formulating questions on the spot. “Isn’t it true that your job is to uphold the Crimes Code of the State of Pennsylvania?” Irwin demands of a cop, who looks down at him with a pained expression, puzzled by such a stupidly obvious question.
“Objection, your honor,” interrupts Pawk, he who surely did not go through all those years of law school just so he could wind up jousting with zealous amateurs.
“Objection sustained,” answers Judge Dauer, wincing.
“All right,” says Irwin, plunging ahead with righteous indignation, “isn’t it true that you uphold the law of the United States Constitution?”
“Objection, your honor.”
Irwin postures forth: “In trying to carry out the goals of the Pittsburgh Police Department –”
“Objection, your honor.”
“Sustained.” And Irwin takes his seat.
Not every member of the Army of God is quite so gung-ho. “It’s frustrating that we can’t say why we were there,” says the smiling Jennifer Frank, 19, a student at Franciscan University in Steubenville, who also was nailed by Renk. “I was nervous when he got to me, sure, but actually it is kind of a relief. I’m not denying I was there.” Outside the courtroom, she says, she often protests at abortion clinics, but unlike, say, Father John, who “practically begged to get arrested,” she doesn’t like the idea of going to jail. “We just feel that what we’re doing corresponds to a higher law, trying to protect God’s children, and sometimes that’s not man’s law.” She also has a very personal reason for her views on abortion. “I’m the last of seven children, and when my mother had her sixth child it was a very hard birth and she developed arthritis. When she got pregnant with her seventh child, the doctors recommended she have an abortion. But she was much too pro-life to do that.”
During each respite in the action, the mood in the courtroom is mostly high apple pie in the sky. Hugs all around. “We’re praying for you day and night.” One teenage girl wearing a CHOOSE LIFE t-shirt carries around a plastic bottle of holy water. She puts a few drops in one young rescuer’s hands, and he crosses himself. Then she squirts young, quiet Todd Aglialoro in the face and laughs. Todd doesn’t laugh.
The prosecution rests, and the defense motions fly. Pawk’s “defendant list” is suppressed. “It’s like shooting ducks out of the sky,” says Broderick. “They’re no more than mug shots. They could have been taken in China for all we know.”
Judge Dauer makes a sweeping dismissal of 48 cases for lack of evidence (24 were not identified by the cops, and 24 were not in the group photos). Throughout the convention-courtroom there is much weeping of deliverance. Jennifer Frank lowers her head and prays. Father John, suddenly no longer a defendant, sits serenely, and will soon be back in the Steubenville Holy Spirit Monastery an unindicted monk. Go on, admit it. However you score on the litmus test, the sight of these grateful folks squeezes your heart. No one here really wanted to go through this ordeal. Or perhaps that’s not so, for not everyone is weeping. One woman cries out, “I was there saving the lives of children! I didn’t ask to be dismissed!”
Judge Dauer pounds his gavel: “You’re out.” No one makes a soapbox of his courtroom. The Army of God has been thinned. the Abortion 68 is down to 20.
Many of the innocent do not come back to the courtroom to bolster their fellow combatants, who return with an astonishing new defense. Our cheer-leading Rich Gardner, speaking haltingly to the jury, says having only a high school education he isn’t very good with words (though he certainly had his riff down back in the prayer meeting) and hopes they’ll bear with him. “I first decided to represent myself so I could explain to you why I did what I did. I based my defense on my intent for being there, but I was told that intent had nothing to do with this case. Okay, well, we’ve all heard Commander Mitchell say that he gave an order to disperse. I have to be very honest with you, my mind was on a lot of things that morning. . .”
Yes, incredibly, having been rudely surprised by Judge Dauer’s stubborn refusal to allow the trial to become the forum they’d counted on, these rescuers, these front-rank foot soldiers in God’s war on abortion, are wimping out, stepping forward one after another to claim they never heard the order to disperse. That is their defense, offered up without a shred of shame at its tawdriness. They want out of the trial unscathed, no criminal pedigree, no two years in prison. Just get them out of this courtroom and back on the fighting lines of Operation Rescue.
Not that they don’t give the protest one last try. Each closing statement invariably zeroes in on the underlying Big Issue, and each is punctuated by Pawk’s irritated objections. One rescuer recites the Pledge of Allegiance for the jury. Applause applause. Another, Judith Dick, 44, whose face each day every hour has knotted ever tighter in frustration, appeals to the jury’s common sense: “The very fact that this protest did not happen in front of Kroger’s or K-Mart, you have to take that into consideration, and if you find me guilty of anything, then you must find me guilty of caring.” Applause applause.
“Care to take a bow?” Judge Dauer says without affection. He says the trial has been “expanded vexatiously.”
Spinning off a variation on Dick’s theme, Irwin, who has pissed off Pawk every time he’s stood up, and who, by the way, also subscribes to the I-didn’t-hear-it defense, pleads, “If I’m guilty of anything it is that I’m guilty of Roe vs. Wade.”
Objection, your honor. Objection sustained.
But it is the doofus Broderick, gesturing at the jury with the microphone, who is most insistent. They were there to save children. Objection, your honor/Objection sustained. They’re very good people, think what they get from this whole thing. Objection, your honor/Objection sustained. Take a good look at them, think of what they did, think if they’re criminals and they should be convicted. Objection, your honor/Objection sustained. I wish Mr. Prosecutor would give me some courtesy and not continually interrupt. Give the proper closing and I won’t interrupt/He’s doing his duty, when you say something improper he has a duty to object, and what you said is improper and the objection is sustained. Ask yourself when you go to the jury room what these people gain today, jail? Objection your honor, that’s exactly the same thing he just said/Objection sustained, Mr. Broderick, you know better than that. I think I’m allowed some latitude to comment on the case, I’m getting no latitude at all. Objection, your honor/Objection sustained, you’re not allowed to comment on the punishment, if any, it’s absolutely irrelevant. They gain nothing, they don’t want anything, all they want is to save children! Objection, your honor/Objection sustained, we’ve been over this a hundred times, Mr. Broderick.
And perhaps you ask: Since when is a hundred times enough?
As we go to press, the Abortion 20 hangs in the balance. The jury is out.