Was There a Conspiracy to Fire?
The Kent State shootings stymied investigators. Most authors concluded the shootings were a deliberate response to the students' mostly verbal abuse.
Although several investigations were held following the May 4, 1970 killings at Kent State, none could determine why Ohio National Guardsmen fired into a crowd of protesting students. The President's Commission Campus Unrest concluded the shootings were “unnecessary, unwarranted, and inexcusable”—and the Justice Department determined the shootings were “neither necessary nor proper.” However, the Department attorneys who studied the FBI’s 47-volume report also had to concede “we do not know what started the shooting. We can only speculate on the possibilities.”
Several authors of books about the tragedy also tried to come to grips with that question of why the Guard killed four students and wounded nine others. The first was James A. Michener, whose book Kent State: What Happened and Why, was published on the first anniversary of the killings. In recreating what happened, Michener wrote that the troops about-faced about 135 degrees before opening fire, and that
"(I)t seems likely . . . that on the football field [5-10 minutes earlier], where the students were being obnoxious and stones were drifting in, that some of the troops agreed among themselves, “We've taken about enough of this crap. If they don't stop pretty soon we're going to let them have it."
Despite Michener’s claim that "some kind of rough verbal agreement had been reached among the troops," Michener could not, in the words of one critic, follow his own findings to its logical conclusion. In the absence of proof (proof that could only be produced by a federal grand jury investigation with the powers to subpoena and cross-examine witnesses), Michener reversed course later in his book and shrugged off the shootings as “an accident, deplorable and tragic."
While Michener seemed content to let the matter slide, others were not. Peter Davies, a Staten Island insurance agent who took a special interest in the case, had befriended Arthur Krause, the father of slain co-ed Allison Krause, and submitted to the Justice Department a privately published report alleging that there had to have been either a conspiracy or an order to fire. After studying a series of photographs of the shootings, Davies alleged that a noncommissioned sergeant, Myron Pryor, gave a nonverbal signal to fire by firing his .45 pistol just seconds before the main volley.
On August 13, 1971, Attorney General Mitchell, who had earlier told reporters that the troops apparently violated federal law, issued a 4:00 p.m. statement late on a Friday afternoon claiming there was "no credible evidence of a conspiracy and no likelihood of successful prosecutions." With school out of session in Ohio and Congress in recess, the announcement was obviously timed to keep press attention at a minimum. The decision also had some people wondering: how could the attorney general have ruled out the possibility of a successful prosecution before there had even been a “successful investigation”? One of them, Nathan Lewin, a former deputy attorney general in the Department’s Civil Rights Division, called the closure “so out of keeping with what the Civil Rights Division was doing at the time in less publicized cases,” that he wondered whether the closure was designed to head off the disclosure of “a skeleton rattling in this closet.”
"(I)t seems likely . . . that on the football field [5-10 minutes earlier], where the students were being obnoxious and stones were drifting in, that some of the troops agreed among themselves, “We've taken about enough of this crap. If they don't stop pretty soon we're going to let them have it."
Despite Michener’s claim that "some kind of rough verbal agreement had been reached among the troops," Michener could not, in the words of one critic, follow his own findings to its logical conclusion. In the absence of proof (proof that could only be produced by a federal grand jury investigation with the powers to subpoena and cross-examine witnesses), Michener reversed course later in his book and shrugged off the shootings as “an accident, deplorable and tragic."
While Michener seemed content to let the matter slide, others were not. Peter Davies, a Staten Island insurance agent who took a special interest in the case, had befriended Arthur Krause, the father of slain co-ed Allison Krause, and submitted to the Justice Department a privately published report alleging that there had to have been either a conspiracy or an order to fire. After studying a series of photographs of the shootings, Davies alleged that a noncommissioned sergeant, Myron Pryor, gave a nonverbal signal to fire by firing his .45 pistol just seconds before the main volley.
On August 13, 1971, Attorney General Mitchell, who had earlier told reporters that the troops apparently violated federal law, issued a 4:00 p.m. statement late on a Friday afternoon claiming there was "no credible evidence of a conspiracy and no likelihood of successful prosecutions." With school out of session in Ohio and Congress in recess, the announcement was obviously timed to keep press attention at a minimum. The decision also had some people wondering: how could the attorney general have ruled out the possibility of a successful prosecution before there had even been a “successful investigation”? One of them, Nathan Lewin, a former deputy attorney general in the Department’s Civil Rights Division, called the closure “so out of keeping with what the Civil Rights Division was doing at the time in less publicized cases,” that he wondered whether the closure was designed to head off the disclosure of “a skeleton rattling in this closet.”
After the closure, Peter Davies subsequently expanded his report to a full-length book, The Truth About Kent State, which proved to be instrumental in eventually forcing the Justice Department to reopen its investigation.
(Note: The case had been closed three times before the Department reversed itself.) A federal grand jury was eventually empanelled in Cleveland in December 1973, which resulted in the indictment of eight Guardsmen not on violations of the federal conspiracy statute, but on charges that they deprived the four fatalities and nine wounded survivors of their rights to due process of law.
A two-week trial followed in November 1974, and the presiding judge, Frank Battisti, surprised many observers by acquitting the Guardsmen even before the defense presented its arguments. Battisti ruled that the government failed to prove the Guardsmen had a "specific intent" to harm the students. In Battisti’s view, it did not matter what the Guardsmen did; only that the prosecutors could not prove what the soldiers were thinking when they pulled their triggers.
Assistant Attorney General J. Stanley Pottinger later insisted that the ruling was "aberration" and claimed that the judge was "wrong as a matter of law. In virtually all the other cases I'm aware of, the courts have not construed the intent provisions as narrowly as Judge Battisti did."
A two-week trial followed in November 1974, and the presiding judge, Frank Battisti, surprised many observers by acquitting the Guardsmen even before the defense presented its arguments. Battisti ruled that the government failed to prove the Guardsmen had a "specific intent" to harm the students. In Battisti’s view, it did not matter what the Guardsmen did; only that the prosecutors could not prove what the soldiers were thinking when they pulled their triggers.
Assistant Attorney General J. Stanley Pottinger later insisted that the ruling was "aberration" and claimed that the judge was "wrong as a matter of law. In virtually all the other cases I'm aware of, the courts have not construed the intent provisions as narrowly as Judge Battisti did."
Six months after the acquittal, there was another three-month-long civil trial.
Six months after the acquittal, there was another three-month-long civil trial that alleged both wrongful death and injury and the use of excessive force on the part of the Guardsmen and Ohio officials. The trial produced a wealth of new evidence for historians to consider. Unfortunately for the victims, though, their attorneys could not agree upon a single theory of what caused the shootings. As Chris Jindra of Cleveland’s Plain Dealer pointed out, after one lawyer tried to prove one theory, the next lawyer would come along and try to prove a different one. (“Amen,” Guard Colonel Charles Fassinger told me. “Talk about being scattered.”) At least two of the victims’ attorneys felt that this lack of a coordinated strategy only confused the jury (which is the defense’s job) and contributed to the jurors’ decision to acquit all 38 defendants.
The verdict was later overturned after an appellate court ruled that the original judge improperly handled an incident of alleged jury tampering. A retrial in January 1979 lasted only two days before the lawsuits were settled out of court for a total of $650,000 divided among all 13 plaintiffs. The defendants also signed a vague statement of regret that the victims claimed was an apology. At the same time the defendants insisted they only settled to save the state of Ohio from lawyers’ fees and they were not apologizing at all.
The verdict was later overturned after an appellate court ruled that the original judge improperly handled an incident of alleged jury tampering. A retrial in January 1979 lasted only two days before the lawsuits were settled out of court for a total of $650,000 divided among all 13 plaintiffs. The defendants also signed a vague statement of regret that the victims claimed was an apology. At the same time the defendants insisted they only settled to save the state of Ohio from lawyers’ fees and they were not apologizing at all.
The question of whether or not there was a conspiracy or order to fire resurfaced again in 1990.
The question of whether or not there was a conspiracy or order to fire resurfaced again in 1990 when Prometheus Books published my book, The Fourth of May (later retitled Four Dead in Ohio: Was There a Conspiracy at Kent State? for the paperback edition). The book was based on a review of the 13,000-page civil trial transcript, 8,000 pages of FBI reports finally released under the Freedom of Information Act, plus over 200 new interviews and an analysis of other official and unofficial reports.
My book systematically re-evaluated Peter Davies' original conspiracy theory and other theories in light of the new evidence. I concluded that even though there was no “smoking gun,” there was strong circumstantial evidence suggesting the Guardsmen were indeed ordered to fire. Unfortunately, the evidence pointed almost equally to two different officers: Sergeant Myron Pryor, who seemed to lead the group, and Major Harry Jones. At least five witnesses believed that an order to fire had been issued by Sergeant Pryor. Some thought Pryor pointed to specific targets, while two other witnesses, Harry Montgomery and Charles Deegan, both ex-Marines who served in Vietnam before enrolling at Kent State, testified Pryor tapped the men who were directly in front of him (and later behind him) on the back or backside as signal to fire. Confusing matters even more, there were also five (now six) witnesses who claimed that Jones kept motioning with his baton immediately before the gunfire erupted, as if Jones gave the signal to shoot.
Significantly, Jones, who trained troops in the use of proper procedures in crowd control situations, was not supposed to have carried either the baton or the .22 caliber pistol he carried. Both had been borrowed from his friend, Captain Ron Snyder, who used them in from his day job as a Portage County sheriff’s deputy. Jones was not supposed to have carried an untraceable weapon. Neither was Pryor, who did not carry the .45 pistol that had been assigned to him by the National Guard. Testimony at the civil trial established that Pryor carried a .45 caliber pistol that had been assigned to a mechanic, Frank Haas, who spent the entire weekend back at the armory.
I concluded the Guardsmen were able to successfully thwart investigators not only by telling false (or at least highly exaggerated) stories of being in danger, but by lying to the FBI about the existence of hand signals to fire, thus preventing the FBI from pursuing a crucial avenue of inquiry. The cover-up also succeeded because the soldiers were ordered by Sgt. Pryor to remove their identifying name tags, which prevented investigators from identifying and questioning the soldiers closest to Pryor and Jones. We still do not know who those men were.
My book systematically re-evaluated Peter Davies' original conspiracy theory and other theories in light of the new evidence. I concluded that even though there was no “smoking gun,” there was strong circumstantial evidence suggesting the Guardsmen were indeed ordered to fire. Unfortunately, the evidence pointed almost equally to two different officers: Sergeant Myron Pryor, who seemed to lead the group, and Major Harry Jones. At least five witnesses believed that an order to fire had been issued by Sergeant Pryor. Some thought Pryor pointed to specific targets, while two other witnesses, Harry Montgomery and Charles Deegan, both ex-Marines who served in Vietnam before enrolling at Kent State, testified Pryor tapped the men who were directly in front of him (and later behind him) on the back or backside as signal to fire. Confusing matters even more, there were also five (now six) witnesses who claimed that Jones kept motioning with his baton immediately before the gunfire erupted, as if Jones gave the signal to shoot.
Significantly, Jones, who trained troops in the use of proper procedures in crowd control situations, was not supposed to have carried either the baton or the .22 caliber pistol he carried. Both had been borrowed from his friend, Captain Ron Snyder, who used them in from his day job as a Portage County sheriff’s deputy. Jones was not supposed to have carried an untraceable weapon. Neither was Pryor, who did not carry the .45 pistol that had been assigned to him by the National Guard. Testimony at the civil trial established that Pryor carried a .45 caliber pistol that had been assigned to a mechanic, Frank Haas, who spent the entire weekend back at the armory.
I concluded the Guardsmen were able to successfully thwart investigators not only by telling false (or at least highly exaggerated) stories of being in danger, but by lying to the FBI about the existence of hand signals to fire, thus preventing the FBI from pursuing a crucial avenue of inquiry. The cover-up also succeeded because the soldiers were ordered by Sgt. Pryor to remove their identifying name tags, which prevented investigators from identifying and questioning the soldiers closest to Pryor and Jones. We still do not know who those men were.
From time to time, other theories for the shootings emerged. In 2010 the Kent State shootings tape recording was re-examined by two audio experts, who also concluded there was an order to fire.
From time to time, other theories for the shootings emerged, but none seemed to resurrect the tragedy from the dustbin of history. That is, until May 9, 2010, forty years and five days after the fact, when Cleveland's Plain Dealer published a bombshell front page story quoting two audio forensics experts who re-examined the recording of the shootings played in open court at both trials. The experts used technology that was unavailable in the 1970s to analyze the recording made by an undergraduate student, Terry Strubbe, who had left his reel-to-reel tape running on the ledge of his dorm room window in Johnson Hall, which was close to the Guards’ formation.
The experts, Stuart Allen and Tom Owen, claimed there was a voice on the recording that gave an order "prepare to fi--". Allen also claimed it was followed by another voice: "Guard, fi--"
The Plain Dealer articles led to a few calls for a new investigation. However, neither the state of Ohio nor the Justice Department had any interest in pursuing the matter further. In April 2012, Thomas Perez, the assistant attorney general in charge of Barack Obama's Justice Department, officially re-closed the case, saying the FBI lab concluded the tape was not clear enough to understand any of the words on the recording.
That, of course, did not end the controversy. I subsequently filed a Freedom of Information Act request asking the FBI to explain how it reached its conclusions, The FBI released a summary report which stated the software their lab used was RAP-2, SoundForge 3, AvidPro Tools, AdobeAudition 3, and ES-4. Unfortunately, those were not the same tools Allen and Owen used in reaching their conclusions, which meant that the FBI did an “apples-to-oranges” comparison. Allen had used the more advanced $12,000 Russian S.I.S. Sound Cleaner, as well as SoundForge 10, which is seven generations more advanced than SoundForge 3, the FBI’s tool of choice. Upon learning which tools the FBI used to discredit his findings, Allen insisted the FBI's tools were "beyond antiquated." The second expert, Tom Owen, similarly dismissed the FBI's software as "off the shelf vendor stuff."
The experts, Stuart Allen and Tom Owen, claimed there was a voice on the recording that gave an order "prepare to fi--". Allen also claimed it was followed by another voice: "Guard, fi--"
The Plain Dealer articles led to a few calls for a new investigation. However, neither the state of Ohio nor the Justice Department had any interest in pursuing the matter further. In April 2012, Thomas Perez, the assistant attorney general in charge of Barack Obama's Justice Department, officially re-closed the case, saying the FBI lab concluded the tape was not clear enough to understand any of the words on the recording.
That, of course, did not end the controversy. I subsequently filed a Freedom of Information Act request asking the FBI to explain how it reached its conclusions, The FBI released a summary report which stated the software their lab used was RAP-2, SoundForge 3, AvidPro Tools, AdobeAudition 3, and ES-4. Unfortunately, those were not the same tools Allen and Owen used in reaching their conclusions, which meant that the FBI did an “apples-to-oranges” comparison. Allen had used the more advanced $12,000 Russian S.I.S. Sound Cleaner, as well as SoundForge 10, which is seven generations more advanced than SoundForge 3, the FBI’s tool of choice. Upon learning which tools the FBI used to discredit his findings, Allen insisted the FBI's tools were "beyond antiquated." The second expert, Tom Owen, similarly dismissed the FBI's software as "off the shelf vendor stuff."
Where We Stand Today
That is where we stand today. The bottom line is that the Kent State shootings remain unresolved despite investigations by 300 FBI agents, the entire U.S. Department of Justice, all the attorneys involved in the civil suits, and the combined investigative efforts of Knight Newspapers, and many other journalists.
There is, and there may never be, any closure for what happened at Kent State University. As I wrote almost 30 years ago: “No one was willing to confess. Which is understandable. After all, how would you like to go down in history as the man who started the killings at Kent State?”
Editor’s note: William A. Gordon is a 1973 graduate of Kent State and the author of Four Dead in Ohio and three other books.
There is, and there may never be, any closure for what happened at Kent State University. As I wrote almost 30 years ago: “No one was willing to confess. Which is understandable. After all, how would you like to go down in history as the man who started the killings at Kent State?”
Editor’s note: William A. Gordon is a 1973 graduate of Kent State and the author of Four Dead in Ohio and three other books.
END NOTES
"unnecessary, unwarranted, and inexcusable." (The Report of the President's Commission on Campus Unrest, p. 289)
“neither necessary nor proper” Memorandum, “Potential National Guard Defendants in the Kent State Shootings,“ from Assistant Attorney General Jerris Leonard to Portage County, Ohio Prosecutor Ron Kane, undated but sent between July 9 and July 24, 1970.
"if they don't stop pretty soon we're going to let them have it." (Michener, James, Kent State: What Happened and Why, page 361).
“”in the words of one critic” Stanley Elkins felt Michener’s “driving urge to be ‘fair” and conciliatory has tied up all Michener’s analytical energies.” Elkins, Stanley M., “Lessons and Judgments,” Commentary, October 1971, page 90.
"an accident, deplorable and tragic." (Michener, page 410).
Pryor, gave a firing signal by first firing his .45 Davies, Peter. "An Appeal to the United States Department of Justice For an Immediate and Thorough Investigation of the Circumstances Surrounding the Shootings at Kent State, " Congressional Record, July 22, 1970, pg. E-8143.
“no credible evidence,” Public statement of Attorney General John Mitchell, August 13, 1971.
"apparent violations of federal law," (William A. Gordon, Four Dead in Ohio, pg.102)
“so out of keeping” (“Kent State Revisited: Another Skeleton in the Closet?.” The New Republic, August 18 and 25, 1973.
“as narrowly as Judge Battidtsi did." Interview with J. Stanley Pottinger by William A. Gordon. Published in Four Dead in Ohio, pg. 170.
"beyond antiquated." (Gordon, William A., "FBI Report Confirms Kent State tape analysis based on 'beyond antiquated' Software," April 30, 1973 blog post, http://kentstatedevelopments.blogspot.com/2013/.
“Guard, fi--" John Mangels, “new analysis of 40-year-old recording of Kent State shootings reveals that Ohio Guard was given an order to prepare to fire,’ The Plain Dealer, Cleveland, May 9, 2010.
“No one is willing to confess . . . “ (William A. Gordon, Four Dead in Ohio, pg. 71)
"unnecessary, unwarranted, and inexcusable." (The Report of the President's Commission on Campus Unrest, p. 289)
“neither necessary nor proper” Memorandum, “Potential National Guard Defendants in the Kent State Shootings,“ from Assistant Attorney General Jerris Leonard to Portage County, Ohio Prosecutor Ron Kane, undated but sent between July 9 and July 24, 1970.
"if they don't stop pretty soon we're going to let them have it." (Michener, James, Kent State: What Happened and Why, page 361).
“”in the words of one critic” Stanley Elkins felt Michener’s “driving urge to be ‘fair” and conciliatory has tied up all Michener’s analytical energies.” Elkins, Stanley M., “Lessons and Judgments,” Commentary, October 1971, page 90.
"an accident, deplorable and tragic." (Michener, page 410).
Pryor, gave a firing signal by first firing his .45 Davies, Peter. "An Appeal to the United States Department of Justice For an Immediate and Thorough Investigation of the Circumstances Surrounding the Shootings at Kent State, " Congressional Record, July 22, 1970, pg. E-8143.
“no credible evidence,” Public statement of Attorney General John Mitchell, August 13, 1971.
"apparent violations of federal law," (William A. Gordon, Four Dead in Ohio, pg.102)
“so out of keeping” (“Kent State Revisited: Another Skeleton in the Closet?.” The New Republic, August 18 and 25, 1973.
“as narrowly as Judge Battidtsi did." Interview with J. Stanley Pottinger by William A. Gordon. Published in Four Dead in Ohio, pg. 170.
"beyond antiquated." (Gordon, William A., "FBI Report Confirms Kent State tape analysis based on 'beyond antiquated' Software," April 30, 1973 blog post, http://kentstatedevelopments.blogspot.com/2013/.
“Guard, fi--" John Mangels, “new analysis of 40-year-old recording of Kent State shootings reveals that Ohio Guard was given an order to prepare to fire,’ The Plain Dealer, Cleveland, May 9, 2010.
“No one is willing to confess . . . “ (William A. Gordon, Four Dead in Ohio, pg. 71)
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Kent State Shooting Expert
William A. Gordon Email: [email protected] Website: www.KentStateShootingsExpert.com |
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