Forty years later, the fallout remains from a notorious case.
“The whole thing took about an hour, and the weird thing was that the kitchen was right in the middle of the apartment, but they made a point of searching there last,” Fraser recalls. “When they finally got to the kitchen, I remember three or four of them forming a semicircle around the refrigerator with their backs effectively walling it off from view, and then they were like, ‘Aha! What’s this?’ and they pulled out this big tin can of C-4 plastic explosives.”
Pulling the refrigerator out from the wall, the cops then produced three lengths of pipe, some blasting caps and a small quantity of gunpowder.
Fraser believes the bomb-making material must have been planted earlier in the day, but Milkman disagrees. “I don’t see how,” he says. “We were in and out of the refrigerator all day. No, they must have smuggled it in under those big coats they were wearing.”
As the group was being ushered into the paddy wagon, Fraser began shouting into the cameras that this was a frame-up. At this point, Borghmann showed up, and shortly afterward joined his friends in the paddy wagon. Once they got to jail, Friedman was ushered into the women’s wing, where she was issued a prison dress so short it barely covered her backside. “When I protested that my butt was hanging out, they made me scrub the floor on my hands and knees,” she says.
“I remember I began to get depressed [in jail],” says Milkman. “Not really for myself, because I knew I had been framed, but for the others, most of whom were black. One had been arrested for breaking into his own house because he didn’t have a key, and cops were in such hurry to arrest him they didn’t let him provide ID. Another guy had told a story about how he went to a used-car lot and took a car out for a test drive and the car died; he was in the middle of the street waiting for help when the cops arrested him for trying to steal the car. They told these stories not with outrage but as matter of fact, that this is what it is like to be a black man in Philadelphia in the spring of 1969.”
The SDS could not have asked for more effective and sympathetic legal representation than they got from Bernard Segal, a high-profile defense lawyer who commanded the respect of the city’s legal establishment, and David Rudovsky, a bright young civil-rights lawyer fresh out of law school. Segal and Rudovsky managed to get the bail reduced for everyone in the group and, eventually, charges dropped against Milkman and Friedman, because they were merely visitors on the premises where the bomb-making materials were found. They also got a break when Judge Edmund B. Spaeth was assigned the case. “He was very intelligent and a Quaker, a man of conscience,” says Friedman. “[The lawyers] told us that he was pretty much the only judge in town we had a chance of convincing."
The prosecution’s case stumbled at the start when Fencl acknowledged in court that he had no proof of Fraser or Borghmann’s involvement in any plot to blow of national landmarks, or that such a plot existed. Futhermore, under questioning by Segal, he said that the police had never dusted the bomb-making materials for fingerprints that would prove Fraser or Borghmann handled them, nor did they take precautions not to leave their own fingerprints on the materials when they collected them. Also, the KYW footage of the search mysteriously went missing from the station’s archives when the defense requested copies.
Shortly after his arrest, Fraser flew out to San Francisco to meet with The Black Panther Party in hopes of forging an SDS/Panther alliance. “They were so paranoid, I remember they picked us up and blindfolded us so we wouldn’t know where their hideout was,” says Fraser. “In the end, they just didn’t trust us.”
Although a unified front with the Panthers was not to be, the meeting would, in a roundabout way, provide the foundation for their defense. Fencl let it slip at a City Hall rally in support of Fraser and Borghmann that he knew all about Fraser’s trip to meet the Panthers, and it became apparent that authorities had wiretaps in place, something they were loath to admit.
Segal and Rudovsky argued that their clients had a right to know if Philadelphia Police or the FBI had tapped their phones (if the wiretaps had violated the Fourth Amendment, all evidence gathered as a result would be inadmissible in court) and that the defense had a right to know the identity of any moles or informers employed by the authorities, as they would prove to be crucial witnesses for the defense.
Judge Spaeth agreed, but prosecutors dragged their heels on both motions during the nearly two years of pre-trial hearings until Spaeth finally issued an ultimatum: Either provide the details of any wiretapping and provide the names of any informers or he was throwing out the charges. Which is exactly what happened in April of 1971.
The decison not to disclose on the wiretaps and informants went all the way up to FBI director J. Edgar Hoover and then-Attorney General John Mitchell, who discussed the case on several occasions, as Fraser would later learn when he secured his voluminous FBI file with a Freedom of Information Act request. Curiously, the prosecution never appealed Judge Spaeth’s ruling or re-filed charges despite its prerogative to do so.
PW's Summer Guide 2015