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Radical on rye

Reflections on the extradition of Karleton Armstrong
|Written By Austin M. Cooper
Radical on rye
FBI wanted posters published shortly after the Sterling Hall bombing.

Karleton Armstrong, a 22-year-old former student at the University of Wisconsin, was a self-made rebel. In 1969, he and his brother Dwight had dropped rudimentary firebombs from a light aircraft onto a building near the university campus in the city of Madison. Fortunately, the bombs failed to explode.

However, he outdid himself when, on Aug. 24, 1970 at 3:42 a.m., he and three other men parked a stolen van loaded with a mixture of fertilizer and fuel oil beside Sterling Hall, a large physics complex at the university. Then they ignited the mixture, causing a huge explosion that blew the side off the building and lifted pieces of the van to the top of another eight-storey building three blocks away. Twenty-six nearby structures were also damaged.

In the building that morning was Robert Fassnacht, a 33-year-old post-doctoral researcher working in his lab. He was finishing some work before leaving on vacation with his wife and children. The explosion blew him through a wall; his body was found face down in a foot of water.

When Armstrong was charged with murder and arson by Wisconsin authorities, he was already on the lam. After the bombing, he had escaped to Toronto, where he rented a room to lie low while the police searched for him. Apparently he entertained himself there by skating on the public rink in front of city hall.

He had been on the FBI’s most-wanted list for 18 months, when, in February 1972, he was located and arrested by Toronto police while skating on that rink. They lodged him in the Don Jail pending an extradition hearing.

Wisconsin wanted him back for trial, but Armstrong didn’t want to go.

This is the story of his colourful and sometimes tumultuous battle to prevent his extradition.

I was retained by the State of Wisconsin to extradite Armstrong from Canada, so I met with state officials and police. One of them was a detective named Charlie Lulling, who took pride in lifting his pant leg to show me a loaded pistol strapped to his right leg above the ankle. They filled me in about the history of student activism in the U.S. and on the campus at Madison.

Here’s what I learned from them and others I spoke to: Since 1961, the U.S. had been actively engaged in the war in Vietnam. The nation’s further incursion into Cambodia in April 1970 caused a public backlash in opposition to the escalation of the conflict, and there were vigorous student demonstrations on American university campuses.

On occasion, there were equally vigorous responses to the backlash by the authorities. For instance, on May 4, 1970, students at Kent State University were demonstrating in opposition to the war when they were shot by Ohio national guardsmen; four students were killed and 16 wounded. Two students were killed at Jackson State University in Mississippi.

The University of Wisconsin at Madison had been a hotbed of student unrest sparked by the continuing war. In 1969 and 1970, students marched in the streets, during which civic and private property were trashed.

As a result, the city refused to grant permits for further marches. Student leaders applied to the local federal judge to order the city to issue more permits. Over the objections of the police and the city, the judge, relying on the U.S. constitution, directed the city to issue permits. The marches that followed continued to be disruptive and violent.

Armstrong contended that he set the bomb because the three upper floors of Sterling Hall housed a U.S. army mathematics centre that was conducting research to further the Vietnam war; his bombing was to further the ongoing anti-war protests.

From his cell in Toronto, Armstrong hired Clayton Ruby, then a bright young activist lawyer, to fight his extradition. He and his counsel appeared briefly a number of times before judges in the courthouse in Toronto to adjourn his case before a date was set for the commencement of the extradition hearing.

Whenever Armstrong was scheduled to appear for an adjournment, an army of young protesters in jeans and sweatshirts flooded the courthouse, and sat on the floor or squatted against the walls as they waited to get into court. When I walked by them in my gown, they glared at me and snorted “oink,” or muttered “pig.” Once the courtroom doors were unlocked, they crowded in to support their hero.

It was a tense moment each time a judge entered the courtroom. Armstrong’s energetic supporters would rise en masse to face the bench with their right arms outstretched and their fists clenched. Their conduct was upsetting the first time it happened, but after a few appearances I was inured to it. During one adjournment a court attendant told me I might be shot, but I can’t say I was worried; I didn’t think those kids would do that.

In court, Armstrong presented an arresting figure. He stood in the prisoner’s box, over six feet tall with long dark hair and with a full black beard, and delivered vigorous political speeches in stentorian tones. He looked and sounded like a biblical prophet in full flight.

He denounced the U.S. government for the war in Vietnam and the killing of innocent Vietnamese. He accused me and the presiding judge of being agents of American imperialist ambitions.

Although it was my job to send him out of Canada, I had to admire his courage and eloquence. But beyond that, I was proud that in our country he could speak publicly about his political views.

Usually, the judges who presided at those adjournments sat quietly through Armstrong’s tirades, although one judge was so offended or apprehensive he ordered the courtroom and the adjacent hallway cleared of spectators before he entered court. Ruby made a vigorous objection that the judge lacked jurisdiction to make the order.


Finally, in May 1972, the extradition hearing commenced before Judge Harry Waisberg of Sudbury, Ont. The hearing continued for weeks in a courtroom packed with Armstrong’s agitated supporters. Waisberg refused to be drawn in by the agitation, and listened to the evidence calmly and patiently.

The facts proved by affidavits and oral evidence demonstrated beyond doubt that Armstrong was one of those responsible for setting and igniting the bomb that blasted the building and killed the victim. In my view, there was ample evidence to support his extradition to Wisconsin for trial on charges of murder and arson.

However, Ruby argued his client should not be ordered extradited for two reasons: first, the alleged crimes were of a political nature and therefore exempt from the Extradition Act; and secondly, that the affidavit evidence tendered was not admissible in light of the Canadian Bill of Rights (the non-constitutional pre-Charter of Rights and Freedoms statute enacted by the John Diefenbaker government).

In an endeavour to prove that Armstrong’s crimes were of a political nature, Ruby called a number of colourful witnesses to testify about the anti-Vietnam war “movement” in the U.S. Among them were Tom Hayden, the famous political radical and anti-war activist (whose girlfriend was Jane Fonda, and who later became a senator from California), and Noam Chomsky, the noted left-wing American linguist, philosopher, and author. They proved to be interesting witnesses but neither of them knew Armstrong nor could identify him as a supporter of the political “movement.”

On June 30, 1972, Waisberg dismissed both of Ruby’s arguments and ordered Armstrong be extradited to Wisconsin to face trial.

Ruby appealed to the Federal Court of Appeal, which dismissed the appeal.

Ruby then filed an application for leave to appeal to the Supreme Court of Canada on the two grounds rejected by Waisberg. He was assisted by Eddie Greenspan, then an up-and-coming young lawyer from Toronto. I opposed the application on behalf of the State of Wisconsin.

In those days, arguments in support of applications for leave to appeal were heard by panels of three judges of the Supreme Court.

I was in the Supreme Court library talking with officials from Wisconsin as we waited for our case to be called, when the court registrar came to advise me the application hearing was to move courtrooms. That was great news for our side, because I viewed the three judges listed for that court to be very conservative. I couldn’t see them accepting technical arguments raised to stymie the extradition from Canada of an alleged arsonist and killer. And I could hardly wait to see the reactions of Ruby and Greenspan when told of the new panel that would hear their arguments.

My opponents were standing on the other side of the library. As the registrar approached them to announce the change, I said to my cohorts from Wisconsin, “Watch what happens over there!” When Ruby and Greenspan got the news, their faces fell. I couldn’t resist a smile, and some schadenfreude.

When court opened, Ruby proposed he argue the first ground of appeal, and Greenspan argue the other. The presiding judge responded the court would only hear one counsel, and Ruby had 15 minutes. Ruby pointed out that he had prepared for the first ground only: that Greenspan had prepared for the second and should argue it.

The president of the court reiterated that they would hear only one counsel, and told him he now had 14 minutes. Ruby bravely objected that he was ill-prepared to argue the second ground. The president repeated that they would only hear one counsel and said Ruby now had only 13 minutes to make his arguments.

Ruby then outlined both grounds for the court as best he could. Greenspan sat beside him, silent and glum. When Ruby finished, the court dismissed Armstrong’s application without calling on me.

My supporters from Wisconsin were ecstatic. Later, as we were leaving the Supreme Court building, one of them remarked, “We need judges like that back home in Wisconsin. Where do you find them?” (Did he have in mind the federal judge in Madison who continued to order permits for student protest marches?)

I told him it was the luck of the draw.

After the decision of the Supreme Court was officially announced, Armstrong was whisked aboard a private plane and flown back to Madison to face trial.

Epilogue

Once there, his defence was undertaken by William Kunstler, a prominent left-wing American lawyer who had represented other anti-government activists in the U.S.

In September 1973, pursuant to a plea bargain made for him by Kunstler, Armstrong pled guilty to charges of second-degree murder and arson. At his sentencing hearing, he railed against the U.S. government, and shouted, “Long live the revolution!”

The prosecuting attorney suggested a sentence of 25 years, but the judge sentenced him to 23 years. He was released on parole on Jan. 31, 1980, after serving seven years.

When he got out of jail, Armstrong drove a cab around the city of Madison for a while. Later, he took over a sandwich shop there named Radical Rye.

Austin Cooper’s Vignettes Of A Life In Court will appear occasionally on canadianlawyermag.com. He is counsel to Cooper & Sandler LLP, a Toronto law firm that has practised criminal law since 1953, and a certified specialist in criminal law. He can be reached at acooper@criminal-lawyers.ca.

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