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Judge William Byrne; Ended Trial Over Pentagon Papers

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From News Services
Sunday, January 15, 2006

U.S. District Judge William Matthew Byrne Jr., 75, a judge best known for his role in ending the trial of Pentagon Papers defendant Daniel Ellsberg after disclosing government misconduct in the case, died of pulmonary fibrosis Jan. 12 at his Los Angeles home.

During more than 30 years on the federal bench, Judge Byrne handled a number of high-profile cases, but he was best known for the 1973 Pentagon Papers case, which landed in his courtroom barely two years after he arrived on the federal bench.

Ellsberg was the former defense analyst whose unauthorized release of a top-secret history of the Vietnam War set off First Amendment court battles and ultimately doomed the Nixon presidency.

After large portions of the Pentagon Papers were published in the New York Times, Washington Post and Boston Globe, Ellsberg and a co-defendant, Anthony J. Russo Jr., were indicted on 12 federal counts, including conspiracy, theft of government property and espionage.

In the midst of Ellsberg's trial, the case took a number of bizarre twists. The first, on April 26, 1973, came in the form of a disclosure by the government prosecutor that White House operatives had burglarized the Beverly Hills office of Ellsberg's psychiatrist. The burglars, led by G. Gordon Liddy and E. Howard Hunt, were not apprehended until after the break-in at the Democratic National Committee headquarters at the Watergate complex in Washington nine months later.

But just days after the disclosure in Judge Byrne's courtroom, Nixon's two top lieutenants -- John Ehrlichman and H.R. Haldeman -- resigned, along with acting attorney general Richard G. Kleindienst. White House counsel John Dean was fired.

A few days later, another disturbing revelation came from the judge himself. He disclosed in court that he had had two recent contacts with Ehrlichman, who had offered him a job -- director of the FBI. Although Ehrlichman later testified before the Senate Watergate Committee that Judge Byrne had expressed interest in the FBI job, the judge insisted that he had told the Nixon aide he could not discuss any job offer while the Ellsberg trial was underway.

The trial was shaken again on May 9 when Judge Byrne learned of yet another impropriety: The FBI had secretly taped telephone conversations between Ellsberg and Morton Halperin, who had supervised the Pentagon Papers study.

When the government claimed it had lost all relevant records of the wiretapping, Judge Byrne declared a mistrial on May 11, 1973.

"The totality of the circumstances of this case which I have only briefly sketched offend a sense of justice," Byrne told the court that day. "The bizarre events have incurably infected the prosecution of this case."

The courtroom erupted in cheers and applause as Ellsberg was freed.

Ellsberg learned of Byrne's death Friday as he was attending a conference of First Amendment lawyers in Palm Desert, Calif., where he took part in a panel discussion of the Pentagon Papers.

"His dismissal of all charges against Tony Russo and myself with the eloquent denunciation of government misconduct, in which he said it offends a sense of justice, gave my wife and me one of the best days of our lives," Ellsberg said.

Judge Byrne remained on the federal bench for the rest of his career and was chief judge of the Central District of California from 1994 to 1998. He had also been executive director of the Commission on Campus Unrest, which issued a report in 1970 that examined the factors behind the explosive student protests of the Vietnam War era. After public hearings, the commission issued a report concluding Americans were dangerously polarized. The report condemned both police and antiwar protesters for engaging in violent behavior.


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