The 13-second fusillade in which Ohio National Guardsmen killed four and wounded nine Kent State University students nearly seven years ago is echoing in the Supreme Court.
The justices have before them an order by a lower court for a second trial of a civil damage suit by the victims and their estates against Gov. James A. Rhodes and Sylvester Del Corso, adjutant general of the Ohio National Guard.
The decision was handed down in September by the 6th U.S. Circuit Court Of Appeals in the most publicized civil case in recent years. The Supreme Court may act on the case later in this session.
The case is important partly because Rhodes is the first governor ever claimed in a lawsuit to be liable for calling out the militia to supress a riot or insurrection, and the first governor to have his alleged personal liability for anything submitted to a jury for judgement.
The case is rooted in the anger and violence triggered on campuses across the country by the U.S. incursion into Cambodia during the Vietnam war.
For three days at Kent State there was violence and vandalism in which crowds burned the ROTC building, impeded firemen and police seeking to control the fire, tried to attack the home of the university president, inflicted damages in downtown Kent and assaulted National Guardsmen, police and firemen trying to restore and maintain order.
On the fourth day, May 4, 1970, Guardsmen fired the 13-second fuslilade into a crowd of students on the campus. The victims then sued for compensatory and puitive damages, naming as defendants Rhodes (who later was re-elected to his present term, Del Corso an guardsmen and guard officers at the scene of the shooting.
After a 15-week trail, a jury in the U.S. District Court of Judge Don J. noted for the defendants in August 1975.
Although the victims raised on appeal, a divided 6th Circuit reversed and ordered a second trial on a single ground: one of the juors had been assaulted, and he and his family thrice theatened in what the court termed "an attempt to prevent our system of justice at its very heart."
The episode occurred toward the end of the trail, when Young learned that someone wanting a verdict one way or the other, had, among other things, threatened to kill the juror and blow up his home.
Young "never interrogated the threatened juror to learn what effect the incidents had had on him and whether he had discussed the threats with other jurors," the court said. Later, he said that "there was no need even to inquire of the juror," since he was going to be excused anyway. In fact, however, the juror was never excused.
"Instead," the court continued, "the entire jury was informed that an attempt had been made to influence its decision, and the jury was eventually sequestered."
Young acknowledge to the jury the "extreme seriousness" of the court said, "did not question the other jurors to determine whether the threatened juror had discussed the details of his experience with them."
Rhodes and other defendants argued that no evidence showed that the jurors - three of whom did not participate in the verdict - were affected by coercion or fear. But the court said that this approach misconceives "established law and the presumption of prejudice."
Moreover, the court said, "The record is completely barren of any showing that the verdict was not affected . . . No litigant should be required to accept the verdict of a jury which had been subject to such an instrusion . . ."
In seeking review, Rhodes and Del Corso cited a February Supreme Court decision immunizing California prison officials from liablilty for actions that they neither knew nor reasonably should have known would violate prisoners' constitutional rights and that were not taken maliciously.
The victims oppose review. But if it is granted, they said, the Justices should reverse the appeals court's dismissal of claimed violations of the constitutional right of freedom of assembly.