had been requested),
"the officer is getting another good look at the defendant
and he isn't going to forget him when it goes to trial. No-
body will ever know, not even the officer will ever know
whether he is identifying the man at trial because he saw
him today or because he saw him in the clothing store."
The lineup may thus have been key to defense of some cases,
although the identification problem was probably less important
than it might have been because the Government could usually
show an interrupted chain of custody of the defendant after his
57 The Jencks Act, 18 U.S.C. 3500, expressly provides that such items are not to be
disclosed before trial. It was argued by the defense in a riot case (but the court never
decided the point) that the Jencks decision (Jencks v. United States, 353 U.S. 657)
at least empowers a court to order production of the P.D. 163.
In one case, however, before a judge notable for the short
shrift he gave to attorneys' attempts at cross-examination, at-
tempts to argue the issue of probable cause and requests for line-
ups (in one case he instructed the Assistant United States Attor-
ney to "get them to identify the defendants as quickly as you
can"), the officer, even after the court refused to allow a lineup,
could not identify the defendant; the court, much to its strongly
expressed outrage, dismissed the charge.
The office, feeling that in-court lineups were likely to be
unfair to the Government, offered to hold lineups at police head-
quarters under the usual conditions, and in the presence of the
defense attorney. Some judges nevertheless required lineups and
a number of cases were dismissed after a lineup in which the po-
lice officer could not identify the defendant. In several cases the
United States Attorney's office nolle pressed the case rather than
submit to a lineup in court.
The Grand Jury
A second opportunity to review felony cases was available at
the grand jury stage. A special riot grand jury was empaneled and
sat from. May to July, and the United States Attorney set up a
special riot grand jury section in his office. The special grand
jury considered charges against 545 persons, indicted 495, ig-
nored 21 and referred 29 back to the Court of General Sessions.
As far as is known, 1 5 riot indictments were also returned by the
regular grand jury. Of a total of 5 10 indicted 473 were indicted
for Burglary II, 24 for "forging and uttering" 58 and 13 for other
riot-related offenses (Appendix G, Table II).
The procedure in the riot cases closely followed the usual
procedure. After the defendant was ordered held by the com-
mitting magistrate, the police officer reported to the special grand
jury section of the United States Attorney's office. There he was
given a date to appear for presentation of the case to the grand
jury. The scheduling of all riot cases was controlled by the head
of the special section. Before the date for appearance the officer
was to have brought into the special section all papers that had
been prepared on the case. In riot cases these usually consisted
of no more than the P.O. 251 or P.O. 163 forms. The usual
5 These were usually people charged with involvement in schemes to pass off money
order blanks stolen during the disorder.
fuller follow-up reports were rarely available, and where they
were available they were very brief.
On the date for presentation the officer would discuss the
case with an Assistant United States Attorney or one of the ad-
ministrative personnel in the section, who would take down his
statement. Before presentation all files were reviewed by the
head of the special section. At this point a few cases were
screened out, usually because of serious holes in the evidence,
such as the officer's inability to identify the defendant. The basis
of review was the same as in ordinary cases; no special guidelines
like those for the General Sessions section were applicable.
The cases, in the view of the Assistant who headed the spe-
cial grand jury section, were in some ways stronger and in some
ways weaker than the usual felony case; stronger because the ar-
rests were ordinarily contemporaneous with the offense and the
police officer's on-the-spot testimony was available; weaker be-
cause recollections of overworked police officers were often
hazy, property found in the defendant's possession had not been
retained, and the absence of any prior criminal record in many
cases created the probability that the defendant would testify in
contradiction to the officer.
In determining whether to present cases to the grand jury
the section gave some consideration to the circumstances of the
riot. An offense committed early or at the height of the riot,
where many others were present who might have been influenced
to do the same thing, was considered to be a more serious matter
than a similar offense committed in ordinary times. On the other
hand, an offense committed in the waning hours of the disorder,
entry into an already gutted store, for example, would probably
be thought less serious. Each case was examined individually and
the decision to seek indictment made individually. The volume
of cases was not permitted to influence the decision to seek an
indictment. The responsible people in the United States Attor-
ney's office felt, and feel, that the indictments were justified by
the facts of the cases.
Proceedings in the District Court
As the riot indictments were returned, an effort was made
by the judges of the court, in coordination with the United States
Attorney, to provide a mechanism for the speedy disposition of
riot cases. The Chief Judge designated (by lot) five judges to de-
vote all their time free of other cases to process the riot cases to
disposition. By agreement with the United States Attorney,
reached at a meeting on July 2, 1968, the court set up a special
summary calendar with each judge controlling his own calendar,
an experiment in improving scheduling long desired to be tested.
The United States Attorney agreed to assign two Assistants to
each judge to be available full time. Each judge was assigned
one-fifth of all the riot cases. This arrangement was intended to
allow the sitting judge to control the flow of cases so that they
could be tried in succession with the two prosecutors responsible
for a continuing flow. Pre-trial conferences were to be held in all
After a month or two the special calendar system was aban-
doned (although the assigned five judges still heard all riot cases),
apparently because the United States Attorney's office did not
have the manpower to keep two Assistants permanently assigned
to each riot judge. Also, the United States Attorney said, other
judges of the court kept calling for the specially assigned attor-
neys to try non-riot cases that had been assigned to them. Never-
theless, by year's end one judge had held to the special calendar
system and had completed his assignments and two had completed
a significant fraction of their assignments; the remaining two had
disposed of only one or two cases each.
It came as some surprise to the office that, as the first cases
were tried, they were not "well received" by the judges or by the
juries. It became clear that, despite the feeling that the indict-
ments were justified, juries were not going to convict for felonies
in the run-of-the-mill looting case, the case of a person who did
not break but entered a store and perhaps did or perhaps did not
obtain some property. At this point the decision was made to ac-
cept pleas to lesser offenses in such cases, which make up the
great majority of cases. In determining whether or not to offer a
plea in a case, the office took into account the facts, the defend-
ant's background, any evidentiary problems which might have
arisen subsequent to indictment and whether in view of the seri-
ousness of the offense appropriate punishment was available
given the suggested disposition.
As of the year's end 1 69 defendants, 26% of those brought
to the District Court on Burglary II charges, had been processed.
As now appears likely to judges and the U.S. Attorney alike, the
last riot case may not be disposed of before the end of 1969.
At the July 2 meeting reference was made to the kinds of
cases in which indictments had been returned. Three of the five
District judges recall that the United States Attorney indicated
that only serious offenders with prior records of serious crimes
had been indicted. The judges were dismayed when it appeared,
they said, that most of the offenders who came to trial had no
serious criminal record and were not those who broke and en-
tered and who initiated looting, but those who came by later.
The United States Attorney's recollection differs. He recalls that
he indicated that only the more serious cases would be tried, and
gave only as an example the case where the defendant had a prior
record. This is consistent with the recollection of one judge that
when he later queried the United States Attorney about his July 2
statement, the United States Attorney recalled that he had said,
or meant, that only the serious cases would go to trial, that run-
of-the-mill defendants would have the opportunity to plead
guilty to lesser offenses.
As the cases moved up for trial, defense attorneys filed mo-
tions challenging generally various claimed infirmities in the in-
dictments. Challenges were made to the method of selecting
grand jurors and to the failure to submit the text of indictment
to the grand jury for a vote; challenges were made to the standard
wording of indictments for Burglary II and grand larceny. These
motions were rejected by Judge Gesell in memorandum opinions.
Judge Gesell granted, however, a motion to sever for separate
trials the cases of three defendants joined in one indictment, on
the ground that
"The defendants indicted for Burglary II are not in-
volved in the same 'transaction' or 'series of transactions'
simply because they are accused of looting the same store at
about the same time. In the ordinary burglary case, they
would presumably be acting in concert under these circum-
stances and the aiding and abetting instruction would apply.
Looting cases during the April disturbances present a differ-
ent situation which the Court cannot ignore. Individuals
having no connection with each other whatsoever have been
arrested while looting the same establishment at or about the
same time and later indicted together. This is too loose a
standard, particularly in view of the other counts of the in-
dictment which cover two different offenses." 59
The United States Attorney wished to appeal the ruling but
was refused permission to do so by the Solicitor General; the four
59 United States v. Jeffries, et al., U.S. Dist. Ct., D.C., Crim. No. 623-68 (Mem. Op.,
August 20, 1968).
other judges have not followed Judge Gesell's practice of severing
In the same case the court construed the District of Colum-
bia riot statute strictly, to save it from a challenge to its constitu-
tionality as void for vagueness. He construed the statutory defi-
nition of riot as "a public disturbance involving as assemblage of
five or more persons" as meaning a disturbance "taking place in
the general vicinity where the defendant is claimed to have en-
gaged in the public disturbance . . . tumultuous and violent con-
duct within the general awareness of the defendant" although
not necessarily "pursuant to an agreement or plan." 60
Adjudication and Sentencing Results
Estimates of the number of individuals participating in the
April disorders are in the neighborhood of 20,000. 61 Less than
10% of this number, 1 ,675, were processed by arraignment or
presentment in the Court of General Sessions. Complete statis-
tics are in the tables in Appendix G. The following is a summary
of the figures.
Dispositions in the Court of General Sessions
Felony Charges. Of the 1,675 defendants, of whom 1,137
were charged by the United States Attorney's office, 970 (58%)
were initially charged with felonies. Of these, 904 (54%) were
charged with Burglary in the Second Degree ("Burglary II"), the
most serious charge applicable to a looting-type crime, carrying
as penalty imprisonment ranging from not less than two to not
more than 15 years. Other felony offenses charged were: arson
(3), assault with intent to commit robbery (2), assault on a
police officer (8), assault with a deadly weapon (6), destroying
property (4), destroying stolen property (2), grand larceny (10),
receiving stolen goods (15) and robbery (6).
Burglary II. Of the 904 individuals charged with Burglary
II, 436 (49%) were bound over to the grand jury either after hear-
ing or after waiving hearing. All charges were dismissed (either by
the prosecution or by the court) against 343 (38%). The other
111(1 2%) were recharged in the Court of General Sessions with
misdemeanors; 74 of them pleaded guilty, presumably pursuant
60 United States v. Jeffries, et al., U.S. Dist. Ct., D.C., Crim. No. 623-68 (Mem. Op.,
August 13, 1968).
61 P. %, supra.
to a bargain. Of 37 defendants who pleaded not guilty, the
charges against 28 were dropped by the prosecution, five were
convicted and one acquitted after trial.
Misdemeanor Charges. The balance, 705 individuals (40%
of the total of 1 ,675) were charged with misdemeanors. Five
hundred thirty-eight were charged with D.C. offenses: disorderly
conduct, violation of curfew or both. One hundred sixty-seven
were charged with U.S. offenses, sometimes coupled with a D.C.
charge. U.S. misdemeanor charges were: attempted larceny, at-
tempted burglary, carrying a deadly weapon, narcotics, destruc-
tion of property, petty larceny, receiving stolen goods, unlawful
entry, possession of a drug, attempted burglary and engaging in
riot. The cases of only 69 misdemeanor defendants remained
pending as of December 1, 1968.
Dispositions in the United States District Court
Indictments. The special grand jury handed down 272 in-
dictments of riot-related defendants; the regular grand jury handed
down three, including the first riot defendant indicted. The total
number of individuals indicted by both grand juries was 5 10, of
whom 473 were indicted for Burglary II, often combined with
grand larceny, petty larceny and engaging in riot, 24 for forging
and uttering, one for interfering with a police officer, one for
robbery, one for arson, one for unauthorized use of a vehicle,
two for assaulting a police officer, three for destroying property
and four for receiving stolen property (some combined with
grand larceny and petty larceny). Of the persons indicted, 407
had been held, waived or certified to the grand jury in the Court
of General Sessions; 56 persons were "originals" never charged
in General Sessions, 68 had had all charges against them in Gen-
eral Sessions dismissed, and the charges against 15 were either
pending or had been the subject of some other action in the
Court of General Sessions (see Appendix G, Introduction and
Tables I and II).
Burglary Cases. The cases of 304 (63%) of the 473 Bur-
glary II riot defendants in the District Court were still pending as
of December 31, 1968, almost nine months after the disturbances.
The cases of 169 (37%) had been adjudicated.
Forty-four defendants were acquitted or dismissed on all
charges. Twenty-four were found guilty of a felony after trial
and five pleaded guilty to a felony (1 1% of all cases adjudicated).
Twelve were found guilty after trial of lesser included misde-
meaner offenses or misdemeanors named in the indictment and
84 pleaded guilty to misdemeanors.
By December 1, 1968, 78 persons whose charges had been
reduced from felonies to misdemeanors and 69 originally charged
with misdemeanors had been sentenced in the Court of General
Sessions. By December 31, 93 persons indicted for Burglary II
had been sentenced in the District Court.
Appendix G, Table IV, shows the comparative time to dis-
position by sentencing in cases in the Court of General Sessions
and in the District Court. Approximately 90% of all defendants
processed in the Court of General Sessions had been sentenced
by the end of September, 1968. Aside from the 57 D.C. offend-
ers whose cases are still pending, who are probably delinquent
curfew violators, only 15 U.S. misdemeanor defendants' cases
were still pending in the Court of General Sessions as of Decem-
ber 1, 1968.
In the District Court, on the other hand, as of January 1 , in
Burglary II cases 304, or 63% of the defendants' cases, had not
yet been adjudicated.
In view of the disparity in time of disposition between the
two courts, the similarity in sentencing patterns becomes signifi-
cant. In the District Court, 79% of Burglary II defendants had all
imprisonment suspended. In the Court of General Sessions, in
cases broken down from Burglary II in exchange for a plea, 73%
of defendants sentenced had all imprisonment suspended. Of the
District Court defendants, only 1 8% were sentenced to serve any
actual time in prison; in General Sessions, 14%. In the District
Court the average sentence to be served was 7.3 months, the me-
dian 6 months. In General Sessions in guilty plea cases the aver-
age sentenced to be served was 5.4 months, the median 6 months.
Five out of the six defendants who pleaded not guilty but
were convicted in General Sessions, on charges reduced to misde-
meanors from Burglary II, were sentenced to imprisonment.
Of 5 1 defendants who were charged originally with misde-
meanors and pleaded guilty, 54% had all imprisonment suspended
and 26% were sentenced to serve time in prison; the average sen-
tence was four months, the median 90 days. For those who
pleaded not guilty but were convicted, 52% had all time sus-
pended, 35% were sentenced to serve time, an average term of
4.6 months and a median of 90 days.
Impact of the Riot Cases on Court Backlogs
The District Court's criminal calendar was already seriously
clogged before the disorder, although marked progress had been
made in the immediately preceding months. In the year immedi-
ately preceding the April disorders, the District Court backlog of
triable cases had been reduced by 1 8%. It increased by 22% over
an April 1967 base and 60% over an April 1968 base during the
five months immediately after the disturbance. Except for the
riot cases, the increase in new cases brought to the District Court
had been fairly constant before 1968. In 1968, the rate of in-
crease in new cases (38%) more than tripled the average rate of
increase of the three prior years (1 1%); 275 riot cases were more
than half the 1968 increment (517 cases).
The backlog problem is also acute in the Court of General
Sessions. A total of 2,133 riot-related criminal prosecutions were
filed, out of 17,400 cases filed by the U.S. Attorney in fiscal year
1968, which represented a 42% increase over the 12,309 criminal
cases filed the previous year. Hence, the increase in the court's
backlog from 1967 (45%) was roughly proportionate to the in-
crease in new cases brought (42%); riot cases constituted roughly
42% of the 1967-68 increase in new cases.
Evaluation of the Prosecution of Riot Cases
The principal criticism, by judges, defense attorneys, citi-
zens and some prosecutors, of the prosecution of riot cases has
been that "too many felonies" were charged. Various reasons
have been given for this criticism.
1 . For these defendants and for what they did felony prose-
cution was inappropriate:
a. Most of the defendants are not "criminal types," but
persons with clean records and a stable place in the community;
b. The usual kind of conduct amounts at bottom to no
more than petty thievery and unlawful entry;
c. Most of these defendants would never have become
involved but for the temptations of a "Mardi Gras" atmosphere.
2. The evidence in many of the cases is too weak to support
a felony conviction:
a. The cases are typically "one witness" cases, with the
testimony of a police officer alone against the defendant's testi-
mony (if he has no useable record); these are usually weak cases;
b. The cases are replete with hazy identification of the
defendant and of the property (where property was recovered
and where it has not been lost).
3. The plethora of riot indictments has put an intolerable
burden on the District Court, seriously increasing its backlog:
a. Trial of serious crimes of violence, robbery and the
like, is still further delayed, greatly to the danger of the com-
b. The delay in disposition of the riot cases themselves
virtually destroys the deterrent and exemplary effect of convic-
tion and punishment;
c. The Court of General Sessions seems better able to
dispose of these cases expeditiously and indeed has done so.
4. Measured by the felony conviction rate, the policy of
seeking indictments has been a failure:
a. The rate of conviction for felonies is low, 1 1%; juries
prefer to convict for lesser offenses if at all;
b. The U.S. Attorney's office seems willing, indeed eager,
to accept a plea of guilty to misdemeanors in the District Court;
further efforts should have been made to do this before indict-
5. Measured by the sentences meted out to date, obtaining
felony indictments has been useless:
a. A valid reason to prosecute for felony is that the se-
vere penalties applicable should be imposed; but only a small mi-
nority of defendants have been sentenced to imprisonment and
only one to more than a year in prison;
b. The percentage of defendants sentenced to imprison-
ment is virtually identical in the District Court and the Court of
General Sessions; all District Court sentences of imprisonment
but one have been for one year or less, within the one year limit
on General Sessions sentencing jurisdiction.
Views are by no means unanimous on any of these points,
and there is evidence on both sides.
1 . There is no dispute that the vast majority of defendants
are persons without records of serious crimes and are relatively
solid citizens. There is no dispute that the vast majority of de-
fendants were not those who broke into stores, smashed windows
and initiated looting but those who, passing by after a store had
been broken open, were tempted, entered and attempted to take
or took merchandise; persons who, in one judge's view, would
never have done anything of the sort in normal times. One judge
of the Court of General Sessions, with colorful exaggeration,
characterized the cases before him as generally involving drunks
"scavenging for booze in gutted liquor stores."
There is substantial dispute, however, about whether such
persons were properly prosecuted as felons. One side takes the
view that if a felony has been committed it should be prosecuted
as a felony and that other circumstances are irrelevant. Others
take the view that defendants without criminal records who have
committed this kind of an offense should have been kept in the
Court of General Sessions and the District Court's resources con-
centrated on serious offenders. The prevailing opinion among the
judges of both courts seems to have been that while the run-of-
the-mill looter was not a normal "burglar," the responsibility for
charging was the United States Attorney's, and they adjudicate
the case before them on the facts and the law. The judges will
take into account in sentencing the nature of the conduct and the
kind of person the defendant is.
There is substantial dispute over whether the riot should be
considered an aggravating or mitigating circumstance. Views
seem about evenly divided. One group feels that the riot created
a "Mardi Gras" atmosphere, that the situation was highly charged
emotionally; and the view was expressed that the riot flatly was a
reaction to oppression of the black community. The contrary
view echoes the words of the District Attorney of Los Angeles in
reporting on the Watts riot:
"I take the position that any crime occurring during
the riots became more serious because of that fact alone. I
believe that those who committed crimes during those ter-
rible days of the riot are in a special class. A burglary, for
example, is always a serious crime, but a burglary that took
place during the course of the riot is even more serious than
that same burglary occurring at a different time and place,
because any burglary which took place during the riot
helped to sustain it and was directly or indirectly responsi-
ble for the loss of life and the destruction of millions of dol-