Monday, September 24, 2012

Otto Kerner: tainted reputation

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Otto Kerner, Jr. would be far from the first politician accused of financial misconduct who fought his conviction and accused the court of besmirching his name. But when Kerner complained that the jury's finding of guilty had "deeply and irreparably tainted the good reputation that [he] cherished," he had a significant legacy to defend. Until his day in court, Kerner was best known for having delivered one of the most progressive opinions on race relations by the United States government.

Born in Chicago in August of 1908, Kerner earned a bachelor's degree from Brown University in 1930, attended Trinity College at Cambridge University in England from 1930 to 1931, and earned a Juris Doctorate from the Northwestern University School of Law in 1934. He enlisted in the National Guard after graduation and transferred to field artillery two years later. With the outbreak of World War II, he served in both the European and Pacific theaters. When he retired from the service in 1954, Kerner was a major general with a Soldier's Medal, Bronze Star, and Army Commendation Ribbon.

Kerner entered politics soon after, becoming the U.S. District Attorney for the Northern District of Illinois. He held this position from 1947 to 1955 before serving as a Cook County judge from 1955 to 1960. During his time in these positions, Kerner led an effort to reform adoption procedures. Running on the Democratic ticket, Kerner was elected governor of Illinois in 1960. He was re-elected four years later. Kerner served on the National Governors' Conference Executive Committee from 1967 to 1968, and he chaired the Midwestern Governors' Conference that same year. There was a minor scandal in December of 1964 when Theodore J. Isaacs, Kerner's former campaign manager, was charged with misconduct and conspiracy for allegedly receiving fees from two envelope companies. The charges blew over, but it wouldn't be the last time that Isaacs appeared before a judge.

Kerner was perhaps best known for his role as chairman of an 11-member bipartisan committee convened in the summer of 1967 by President Lyndon B. Johnson. A series of devastating race riots had broken out across the country in recent years, and Johnson wanted to know why. Officially known as the National Advisory Commission on Civil Disorders, the group was nicknamed the "Kerner Commission" due to Kerner's leadership role and progressive record as the Illinois governor; he had worked to integrate the National Guard, and although Chicago had not been exempt from the riots the disruptions had been much less severe than those in Detroit and elsewhere. For several months, the committee members met with civic leaders, police officers, politicians, and social scientists to discuss the racial situation in the country.

The result was a groundbreaking report in March of 1968 identifying a number of deep-seated problems and recommending several sweeping reforms. It confirmed the assertions of many civil rights leaders and was a general indictment of the degradation of race relations, blaming "white racism" as the crux of the problem. The report also said racism had become institutionalized, with racist policies not only leading to the creation of black ghettos but keeping them intact and rationalizing their existence. As a result, black citizens had poorer access to education and health facilities and were more susceptible to poverty and unemployment than white citizens. The report also accused police departments of having confrontational tactics when policing the ghettos and contributing to the severity of the riots by responding too slowly to the disruptions. Some members of the media were accused of being irresponsible in reports that could "seed the thoughts of riots."

The findings included the ominous finding that "our nation is moving toward two societies, one black, one white - separate and unequal." It recommended an immediate effort to improve ghetto conditions by better access to jobs and housing, including 550,000 new jobs and 600,000 new housing units in 1968 alone. Members also suggested a need for welfare reform, guaranteed income for every American family, and full-year schooling for children. Shortly before it disbanded, the commission released a supplemental report in July of 1968 saying more ghetto residents than expected - 18 percent - had joined in the riots and that the participants were not just criminals or "riff-raff" but a large number of urban youth.

This secondary report was likely in response to a complaint accusing the commission of not placing responsibility for the riots on the rioters themselves. Richard Nixon, running on a "law and order" platform in 1968, accused the Kerner Commission report of blaming "everybody for the riots except the perpetrators." The report may have illuminated a number of issues, but the scale of the recommendations (and belief that the riots were more the fault of conspirators than a release of outrage about social conditions) meant that it did little else.

A year after the release of the report, an independent study by the nonprofit organizations Urban America Inc. and The Urban Coalition found that little progress had been made in race relations. It borrowed a line from the Kerner Commission in concluding, "A year later we are a year closer to being two societies, black and white, increasingly separate and scarcely less unequal." Testifying before a Senate Judiciary subcommittee in May of 1971, Kerner said he thought police tactics had improved since the riots but that underlying racial issues had not been addressed.

Kerner decided not to run for a third term due to a "deep concern for the health and happiness" of his family." He resigned his governorship early, handing over the reins to Lieutenant Governor Samuel Shapiro in May of 1968. However, Kerner soon accepted a presidential appointment as a federal appeals court judge in Chicago.

In December of 1969, an investigation began into the allegation that Kerner received $50,000 in bank stock shortly before ordering the dismissal of a second indictment against organized crime figure Joseph Amabile, who had been sentenced to 15 years in prison on extortion conviction. Although nothing came of this inquiry, Kerner would land in hot water less than two years late on a similar accusation.

In July of 1971, investigators questioned Kerner about a hefty profit he made in racetrack stock while serving as governor. Five months later, a federal grand jury indicted him on charges of bribery, mail fraud, tax evasion, perjury, and conspiracy. The jury also indicted three former administration officials and one of their secretaries: Isaacs, who had served as state director of revenue between 1961 and 1963; William S. Miller, chairman of Illinois Racing Board from 1961 to 1967; Joseph Knight, director of state institutions between 1962 and 1968; and Faith McInturf, Miller's former secretary and business associate.

The charges alleged that Kerner conspired to acquire $356,000 in racetrack stock for the bargain price of $70,158, and that this amounted to a bribe since it intended to influence his decisions on horse racing matters. Prosecutors also charged that Kerner evaded $84,129 in taxes by false reports to the Internal Revenue Service.

Kerner promptly took leave of his post but did not resign. The case zeroed in on him and Isaacs, since Knight was too old and ill to stand trial and the charges against McInturf eventually evaporated. The state dropped the charges against Miller when he agreed to testify against his co-defendants.

The trial against Kerner and Isaacs began in January of 1971 and lasted for seven weeks; the state called 40 witnesses, the defense 31. Majorie Everett, a former head of Chicago Thoroughbred Enterprises, said she made stock available to Kerner and Isaacs in 1962 and contributed $45,000 to the governor's campaign. Miller said Kerner knew the contributions were made with the intent that he would favor Everett's interests with his decisions; he said Kerner accepted simply by saying, "Well, that's very nice of Marj." The government also asserted that Kerner and Isaacs went through a complex system of hiding the assets and avoiding taxes on them. On the stand, Kerner denied that he ever interpreted the stock and contribution as a bribe.

The jury disagreed; they found Kerner guilty of a total of 17 charges and Isaacs guilty of 15. It was the first time a sitting federal judge was convicted of criminal charges. Kerner vowed to fight the conviction and refused to give up his post, meaning he could only be removed by impeachment. In April of 1973, he and Isaacs were each sentenced to three years in prison and a $20,000 fine. Kerner complained, "My real punishment, deserved or not, has already been inflicted...I was never tainted, and I was never bought."

His argument about the interpretation of the stock and campaign donation held some merit during the appeals process. An appeals court agreed to dismiss the bribery charge, but upheld the other convictions. In June of 1974, the Supreme Court denied a review of the cases; Kerner's argument, in part, was that he could not be indicted while a sitting judge. Some members of Congress were getting tired of this particular ambiguity. In July, Kerner finally resigned from the judge's position as efforts to impeach him gained momentum. He started serving his sentence the same month.

Kerner remained imprisoned until March of 1975. By that time, his health had declined precipitously. Although he had kicked the habit, Kerner had formerly been a longtime smoker; surgeons removed a tumor from his lung and gave him a 50-50 chance of survival. Kerner's poor health sped up his release from prison, and he accepted a job consulting with Lewis University-Chicago's special services center to improve the mental attitudes of prisoners.

President Gerald Ford received a request to pardon Kerner in October of 1975, but rejected it. Kerner was again under consideration for a pardon in May of 1976, but was already fighting a losing battle against resurgent lung cancer at this point. He died the same month and, due to his military service, was buried with honors at Arlington National Cemetery.

Sources: National Governors Association, "Advisers Map Plans to Fight Discrimination" in the Ocala Star-Banner on May 30 1963, "Wild Scene as Governor Orders Illinois Adjournment" in the Telegraph-Herald on Jun. 27 1963, "Nine Public Officials Indicted on Charges of Malfeasance" in the Reading Eagle on Dec.17 1964, "Illinois Governor to Quit Politics" in the Spokane Daily Chronicle on Feb. 7 1968, "Anti-Riot Panel Urges Major National Effort" in the Beaver County Times on Mar. 4 1968, "Armed Cops Not Answer - Kerner" in the Pittsburgh Post-Gazette on Mar. 13 1968, "Riot Commission Calls For Action on Report" in the St. Petersburg Times on Apr. 10 1968, "Illinois Governor Resigns" in the Press-Courier on May 21 1968, "Riot Commission Report is Challenged" in the Sumter Daily Item on July 27 1968, "One Year Later: The Nation Still Drifts Toward a Racial Upheaval" in the Lewiston Morning Tribune on Mar. 2 1969, "Kerner Silent on Charge" in the Southeast Missourian on Dec. 3 1969, "Judge Kerner Testifies For Senate Group" in the Gettysburg Times on May 26 1971, "Kerner Gain in Racetrack Stock Cited" in the Milwaukee Sentinel on Jul. 30 1971, "U.S. Jury Indicts Judge Kerner" in the Milwaukee Sentinel on Dec. 16 1971, "Kerner Pledges Battle to Erase Conviction" in the Toledo Blade on Feb. 20 1973, "Indictments Against Miller, Aide Dropped" in the Chicago Tribune on Mar. 3 1973, "Kerner Gets Three Years, $50,000 Fine" in the Ellensburg Daily Record on Apr. 20 1973, "Kerner Free of Bribery Conviction" in the Pittsburgh Post-Gazette on Feb. 20 1974, "Kerner: Honor Dearer Than Life" in the Ellensburg Daily Record on Feb. 20 1974, "High Court Refuses to Review Kerner Case" in the Portsmouth Times on Jun. 17 1974, "Kerner Quits Bench, Faces Prison Term" in the Beaver County Times on Jul. 25 1974, "Lung Tumor Removed From Former Governor" in the Beaver County Times on Mar. 12 1975, "Kerner to Work With Inmates" in the Free Lance-Star on May 22 1975, "Ford Reject Pardon for Former Governor" in the Virgin Islands Daily News on Oct.18 1975, "Pardon Eyed For Kerner" in the Spokesman-Review on May 7 1976, "Otto Kerner Dies; Paroled Year Ago" in the Schenectady Gazette on May 10 1976, Encyclopedia of American Race Riots edited by Walter C. Rucker and James N. Upton, Crime and Punishment: A History of the Criminal Justice System by Mitchel P. Roth