The Guardsmen Go Free

The four students killed at Kent State have been buried for 4 1/2 years. But the restless search for justice for them and nine others wounded by Ohio National Guardsmen seems likely to haunt the U.S. on through history. What was apparently the last chance for a criminal court to set the matter to rest ended last week when Federal Judge Frank J. Battisti ordered an acquittal on technical grounds for eight Guardsmen defendants--even though, he added, they may not have been "justified in discharging their weapons."

The case had reached Battisti's federal court in Cleveland through a complex series of events. First an Ohio grand jury refused to indict any Guardsman for the 13-second volley of shots fired into a crowd during a rally to protest the 1970 U.S. invasion of Cambodia. Then Attorney General John Mitchell refused to bring any federal charges. But parents, survivors and sympathizers would not accept that result. Last year Attorney General Elliot Richardson was persuaded to renew the investigation. This time a federal grand jury charged eight of the Guardsmen with willfully violating the victims' civil rights.

No Evidence. The federal statute involved is a tricky one. Although shooting someone deprives him of his rights to life and liberty, it is necessary to prove not only the consequence of the illegal act but the purposeful intent to commit it in violation of constitutional prohibitions--a tougher standard of guilt than that required in a murder trial. Prosecutors were able to show that the Guardsmen had used "excessive and unjustified" force, but, said Battisti, who acted before the defense had begun its case, "the Government has presented no evidence bearing directly on the intentions of [the] defendants who fired their weapons." He said that the evidence suggested that the "Guardsmen fired for any number of reasons, including the mistaken belief that an order to fire had been given, the fear that they were being fired upon, a desire to convince the mob to cease the barrage of rock throwing and general confusion." As a result, the parents and survivors can hope only for the token solace of damages in a series of civil suits now pending.

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