The FBI was gearing up for possible outbreaks of terrorism. So far it had only one catch, but was watching 61 alleged threats.
Kristina Berster’s trial in Vermont revealed the danger of guilt by association and how disinformation creates a false narrative.
By Greg Guma
Chapter Three: On with the TrialDennis Schlenker had studied the West German legal situation, but his main concern at the moment was the case of conspiracy and passport violations, which could mean as much as a 20-year sentence for Kristina Berster. Arriving in Burlington on August 28 from Albany, he presented arguments for a delay of her trial so that a survey of local attitudes toward his defendant could be completed.
Schlenker was also worried about access to Berster. Security arrangements at the Albany jail were being tightened, and it had become more difficult to get messages through. “These new rules,” he told US District Court Judge Albert Coffrin, “are not from the Justice Department or the Marshall’s Office. They are for her only, and are designed to deter her from speaking to her attorneys and visitors.” On two occasions, her lawyer said, requests that Berster call him hadn’t even been forwarded by guards.
Meanwhile, a Burlington-based Berster Defense Committee organized a volunteer staff of about 30 to conduct a regional survey. The question was whether Berster, after weeks of publicity identifying her with terrorism, could be judged dispassionately by local jurors.
For the press the case was still hot news, but denials and clarifications are never quite as dramatic as the original accusations. WCAX’s Wadi Sawabini was on hand at the committee’s first press meeting. He filmed the event, but no report was ever aired and the local TV station continued to call her a “suspected terrorist.”
Judy Polumbaum, a reporter from the Montpelier Times-Argus, wrote an accurate account, and attempted to arrange an interview with Berster, as did Susan Green, a Burlington Free Press reporter with magazine contacts. But Kristina wasn’t interested in answering more questions. Between lawyers and intelligence agents, the interviewing had already been going on for weeks.
Berster’s lawyers examined a variety of technical issues, including details of her apprehension and other physical evidence. Although there were originally four defendants, the situation changed at the August 28 court session when one defendant, Michael Ditterlizzi, who drove the car to the border, pleaded guilty to one count of conspiracy, and another, Marie Amendola, decided to become a witness for the state.
According to Ditterlizzi’s lawyer, Fred Cohn, his client’s guilty plea wouldn’t hurt Berster’s case. “He made the best deal he could,” said Cohn. “For him, this is not a political case.”
The new developments left two defendants, Berster and Ray Kajmir. But the two cases might be separated before the trial began. If so, the focus would be on Berster and the intelligence agencies could again get into the act. Her attempt to enter the US had already provided FBI Director Webster with a publicity boost: evidence that terrorism was a growing “problem” in this country.
Back in March Webster had called the effort to combat terrorism one of the Bureau’s top four priorities. The FBI, he said, was “gearing up for possible outbreaks of urban terrorism,” and planned to develop “sophisticated profiles of terrorist groups.” So far, Berster was the Bureau’s only catch, although Webster warned that the FBI was watching 61 terrorist threats.
For the FBI, under persistent attack for past abuses, the chance to place terrorism in the public spotlight was evidently too much to resist. The labeling and subsequent retraction were similar to the tactics used during the COINTELPRO era. The terrorist label, code for political criminal, provided the justification for a new round of surveillance, seizures and wiretaps, as well as inclusion of broader powers in the agency charter under congressional scrutiny.
All this gave the case a deja vu quality for both Berster and Kunstler. During her last months in Germany, surveillance of the New Left increased. Even her lawyers were not immune to intrusive investigation. For Kunstler, set to return to Vermont when the trial started on October 3, it harked back to his role in the Chicago Seven case. In fact, on August 25, he had filed the most recent motion in that decades-old case, asking that a federal court set aside contempt convictions against himself and several defendants because a defense strategy meeting had been bugged by the FBI.
Kunstler said that at the Chicago Seven trial “there was extensive bugging of the defense camp before the trial, during it and after it.” Whether the same thing would happen in Berster’s case remained an open question (At the very least, there was photo surveillance, according to FBI documents released years later). Judging from the presence of German agents and FBI personnel, the intelligence community was giving the border affair more than passing attention.
In a word, the case was ironic. Kristina Berster awaited trial in Burlington because she left her homeland after rejecting the violence that had begun to envelop the country. Yet the specter of that violence followed her, and might yet be used by the American intelligence community to create another terrorist scare. It was certainly “good copy.”
By mid-September Kunstler became blunt and defiant. Most Vermonters were “irreparably prejudiced by publicity identifying Kristina as a suspected West German terrorist,” he charged. It was a long shot, but he asked Judge Coffrin to dismiss the case against the 28-year-old defendant, who was facing eight counts for attempting to enter the US illegally.
Greg Guma,1980
To buttress this claim of prejudicial pre-trial publicity, the Burlington Free Press reported, “Kunstler put Burlington journalist Greg Guma on the stand to testify that newspapers, television and radio stations in Chittenden County consistently have identified Miss Berster as a member of a terrorist gang.” In other words, I had become the first defense witness to explain my investigative work.
By then, to be frank, I was also helping to conduct research on the jury pool for the defense.
At the federal building, the security force was ready for a siege. US Marshals, security specialists and assorted agents roamed the five floors of the downtown building with walkie-talkies. Packages and handbags weren’t permitted into the courtroom, and no one except the lawyers could speak with the now-infamous defendant.
After a week of jury selection, the defense wasn’t optimistic — and mostly working toward a hung jury. The air was thick with intrigue. US Attorney William Gray insisted that he was merely prosecuting a simple border case, but one in which the bail was initially set at $500,000. Kunstler shot back that the issues were far from simple and the FBI was very much involved.
The legendary lawyer had taken the case pro bono. Known for defending political dissidents, he saw it as a significant battle: a defendant seeking political asylum from a country that had been indicting even “radical” lawyers. “This case goes far beyond Kristina Berster,” Kunstler claimed. “I am very concerned with West Germany’s treatment of so-called terrorists and the so-called left wing lawyers who defend them.”
By late September he and other defense attorneys, along with the headquarters for the Berster Defense Committee, had dug in at the Maple Street home I shared with Doreen Kraft, Robin Lloyd and our infant son. Kunstler moved into a spare bedroom and evenings were often devoted to hours-long, fascinating group dinners and personal chats. Over the next weeks we all underwent an immersive course in courtroom dynamics and Kunstler’s blend of legal jujitsu and theatrics. So compelling were the issues, and so high the stakes, that I began to devote most of my time to the case.
No big surprise, I was laid off. Rather than welcoming “insider” coverage of the state’s hottest story, the Vanguard’s editor, Jim Martin, wanted no more of it. Fortunately, I was reaching a national audience nightly on WBAI and other Pacifica radio stations.
Maybe it was naive, but I didn’t seriously consider the possible consequences at first. Specifically, I didn’t appreciate how the Department of Justice and intelligence community would react to growing support for the defendant. In fact, when the US attorney claimed that no local surveillance had been initiated, I wanted to believe him. Three years later we found out that he was far from candid.
From Berster’s first appearance in court, it turned out, the FBI conducted an intensive covert investigation of her allies and supporters. The operation’s code name was TERCROSS; the tactics included stake outs and surreptitious photography, along with follow up long after the trial ended. FBI documents subsequently obtained by members of the Defense Committee showed that the case provided a pretext to continue and extend surveillance of the local left, which had begun years before.
After exposure only the operation’s title changed. In its revised form, TERCROSS was supposed to trace links between Vermont activists and “foreign terrorists.”
Among other things, Freedom of Information Act (FOIA) documents revealed that the US Attorney personally approved surveillance during the trial, as long as it was handled discreetly “and without detection.” According to FBI analysts, this was necessary because some of Kristina’s supporters may have known her prior to her arrival from Europe. One memo indicated that the FBI told the US Marshall and local police about a possible link between the Defense Committee and “terrorist activity in the United States.”
TERCROSS was later merged with another project, GILROB, the label for a bank robbery investigation. Gray was advised “that special agents from the Boston division would be traveling to Burlington for the purpose of observing and possibly photographing Kristina Berster supporters present at the trial.” Gray may have acted under pressure. In any case, he lied in court, voiced no reservations to the feds, and simply urged secrecy.
During the trial we had no evidence that surveillance was underway. All Kunstler could do was subpoena FBI Director Webster, a maneuver that didn’t impress the judge. After eight days in court just to reach the opening statements, Judge Coffrin was impatient. He sometimes looked not at the lawyers but at the clock.
“Something happened before July 20,” Kunstler shouted. He was talking about the media campaign launched with Webster’s press conference. “The FBI was up to something. If the jury found out that the FBI pursued this case on the basis of an agreement with a foreign government, they could acquit the defendant.”
The normally calm prosecutor was equally adamant. Gray reminded the judge that Kunstler often used the FBI as a “whipping boy.” He had successfully made a similar argument to prevent West German experts and US lawyers from testifying about conditions in Germany. “If selective prosecution is tried before this jury, then Assistant US Attorney O’Neill and I would have to testify,” Gray argued. “Really, the FBI has no significance on the issues involved.”
Kunstler took another tack. “Mr. Gray says this is like all other cases,” he reminded the room. “He made this a jury issue in his opening statement. We have the right to rebut, and we need to determine what went on. Who did Webster talk to, and what did the Germans want?”
“It was my decision to prosecute,” Gray protested.
Kunstler shot back, “Your honor, this may have been beyond Mr. Gray’s control.”
Coffrin wasn’t swayed. After a lunch break he denied Kunstler’s subpoena request without explanation.
Next: The Defendant Speaks
False Narrative: Eight ChaptersOn with the TrialThe Defendant Speaks (Sort of)
The FBI was gearing up for possible outbreaks of terrorism. So far it had only one catch, but was watching 61 alleged threats.
Kristina Berster’s trial in Vermont revealed the danger of guilt by association and how disinformation creates a false narrative.
By Greg Guma
Chapter Three: On with the TrialDennis Schlenker had studied the West German legal situation, but his main concern at the moment was the case of conspiracy and passport violations, which could mean as much as a 20-year sentence for Kristina Berster. Arriving in Burlington on August 28 from Albany, he presented arguments for a delay of her trial so that a survey of local attitudes toward his defendant could be completed.
Schlenker was also worried about access to Berster. Security arrangements at the Albany jail were being tightened, and it had become more difficult to get messages through. “These new rules,” he told US District Court Judge Albert Coffrin, “are not from the Justice Department or the Marshall’s Office. They are for her only, and are designed to deter her from speaking to her attorneys and visitors.” On two occasions, her lawyer said, requests that Berster call him hadn’t even been forwarded by guards.
Meanwhile, a Burlington-based Berster Defense Committee organized a volunteer staff of about 30 to conduct a regional survey. The question was whether Berster, after weeks of publicity identifying her with terrorism, could be judged dispassionately by local jurors.
For the press the case was still hot news, but denials and clarifications are never quite as dramatic as the original accusations. WCAX’s Wadi Sawabini was on hand at the committee’s first press meeting. He filmed the event, but no report was ever aired and the local TV station continued to call her a “suspected terrorist.”
Judy Polumbaum, a reporter from the Montpelier Times-Argus, wrote an accurate account, and attempted to arrange an interview with Berster, as did Susan Green, a Burlington Free Press reporter with magazine contacts. But Kristina wasn’t interested in answering more questions. Between lawyers and intelligence agents, the interviewing had already been going on for weeks.
Berster’s lawyers examined a variety of technical issues, including details of her apprehension and other physical evidence. Although there were originally four defendants, the situation changed at the August 28 court session when one defendant, Michael Ditterlizzi, who drove the car to the border, pleaded guilty to one count of conspiracy, and another, Marie Amendola, decided to become a witness for the state.
According to Ditterlizzi’s lawyer, Fred Cohn, his client’s guilty plea wouldn’t hurt Berster’s case. “He made the best deal he could,” said Cohn. “For him, this is not a political case.”
The new developments left two defendants, Berster and Ray Kajmir. But the two cases might be separated before the trial began. If so, the focus would be on Berster and the intelligence agencies could again get into the act. Her attempt to enter the US had already provided FBI Director Webster with a publicity boost: evidence that terrorism was a growing “problem” in this country.
Back in March Webster had called the effort to combat terrorism one of the Bureau’s top four priorities. The FBI, he said, was “gearing up for possible outbreaks of urban terrorism,” and planned to develop “sophisticated profiles of terrorist groups.” So far, Berster was the Bureau’s only catch, although Webster warned that the FBI was watching 61 terrorist threats.
For the FBI, under persistent attack for past abuses, the chance to place terrorism in the public spotlight was evidently too much to resist. The labeling and subsequent retraction were similar to the tactics used during the COINTELPRO era. The terrorist label, code for political criminal, provided the justification for a new round of surveillance, seizures and wiretaps, as well as inclusion of broader powers in the agency charter under congressional scrutiny.
All this gave the case a deja vu quality for both Berster and Kunstler. During her last months in Germany, surveillance of the New Left increased. Even her lawyers were not immune to intrusive investigation. For Kunstler, set to return to Vermont when the trial started on October 3, it harked back to his role in the Chicago Seven case. In fact, on August 25, he had filed the most recent motion in that decades-old case, asking that a federal court set aside contempt convictions against himself and several defendants because a defense strategy meeting had been bugged by the FBI.
Kunstler said that at the Chicago Seven trial “there was extensive bugging of the defense camp before the trial, during it and after it.” Whether the same thing would happen in Berster’s case remained an open question (At the very least, there was photo surveillance, according to FBI documents released years later). Judging from the presence of German agents and FBI personnel, the intelligence community was giving the border affair more than passing attention.
In a word, the case was ironic. Kristina Berster awaited trial in Burlington because she left her homeland after rejecting the violence that had begun to envelop the country. Yet the specter of that violence followed her, and might yet be used by the American intelligence community to create another terrorist scare. It was certainly “good copy.”
By mid-September Kunstler became blunt and defiant. Most Vermonters were “irreparably prejudiced by publicity identifying Kristina as a suspected West German terrorist,” he charged. It was a long shot, but he asked Judge Coffrin to dismiss the case against the 28-year-old defendant, who was facing eight counts for attempting to enter the US illegally.
 |
| Greg Guma,1980 |
To buttress this claim of prejudicial pre-trial publicity, the Burlington Free Press reported, “Kunstler put Burlington journalist Greg Guma on the stand to testify that newspapers, television and radio stations in Chittenden County consistently have identified Miss Berster as a member of a terrorist gang.” In other words, I had become the first defense witness to explain my investigative work.
By then, to be frank, I was also helping to conduct research on the jury pool for the defense.
At the federal building, the security force was ready for a siege. US Marshals, security specialists and assorted agents roamed the five floors of the downtown building with walkie-talkies. Packages and handbags weren’t permitted into the courtroom, and no one except the lawyers could speak with the now-infamous defendant.
After a week of jury selection, the defense wasn’t optimistic — and mostly working toward a hung jury. The air was thick with intrigue. US Attorney William Gray insisted that he was merely prosecuting a simple border case, but one in which the bail was initially set at $500,000. Kunstler shot back that the issues were far from simple and the FBI was very much involved.
The legendary lawyer had taken the case pro bono. Known for defending political dissidents, he saw it as a significant battle: a defendant seeking political asylum from a country that had been indicting even “radical” lawyers. “This case goes far beyond Kristina Berster,” Kunstler claimed. “I am very concerned with West Germany’s treatment of so-called terrorists and the so-called left wing lawyers who defend them.”
By late September he and other defense attorneys, along with the headquarters for the Berster Defense Committee, had dug in at the Maple Street home I shared with Doreen Kraft, Robin Lloyd and our infant son. Kunstler moved into a spare bedroom and evenings were often devoted to hours-long, fascinating group dinners and personal chats. Over the next weeks we all underwent an immersive course in courtroom dynamics and Kunstler’s blend of legal jujitsu and theatrics. So compelling were the issues, and so high the stakes, that I began to devote most of my time to the case.
No big surprise, I was laid off. Rather than welcoming “insider” coverage of the state’s hottest story, the Vanguard’s editor, Jim Martin, wanted no more of it. Fortunately, I was reaching a national audience nightly on WBAI and other Pacifica radio stations.
Maybe it was naive, but I didn’t seriously consider the possible consequences at first. Specifically, I didn’t appreciate how the Department of Justice and intelligence community would react to growing support for the defendant. In fact, when the US attorney claimed that no local surveillance had been initiated, I wanted to believe him. Three years later we found out that he was far from candid.
From Berster’s first appearance in court, it turned out, the FBI conducted an intensive covert investigation of her allies and supporters. The operation’s code name was TERCROSS; the tactics included stake outs and surreptitious photography, along with follow up long after the trial ended. FBI documents subsequently obtained by members of the Defense Committee showed that the case provided a pretext to continue and extend surveillance of the local left, which had begun years before.
After exposure only the operation’s title changed. In its revised form, TERCROSS was supposed to trace links between Vermont activists and “foreign terrorists.”
Among other things, Freedom of Information Act (FOIA) documents revealed that the US Attorney personally approved surveillance during the trial, as long as it was handled discreetly “and without detection.” According to FBI analysts, this was necessary because some of Kristina’s supporters may have known her prior to her arrival from Europe. One memo indicated that the FBI told the US Marshall and local police about a possible link between the Defense Committee and “terrorist activity in the United States.”
TERCROSS was later merged with another project, GILROB, the label for a bank robbery investigation. Gray was advised “that special agents from the Boston division would be traveling to Burlington for the purpose of observing and possibly photographing Kristina Berster supporters present at the trial.” Gray may have acted under pressure. In any case, he lied in court, voiced no reservations to the feds, and simply urged secrecy.
During the trial we had no evidence that surveillance was underway. All Kunstler could do was subpoena FBI Director Webster, a maneuver that didn’t impress the judge. After eight days in court just to reach the opening statements, Judge Coffrin was impatient. He sometimes looked not at the lawyers but at the clock.
“Something happened before July 20,” Kunstler shouted. He was talking about the media campaign launched with Webster’s press conference. “The FBI was up to something. If the jury found out that the FBI pursued this case on the basis of an agreement with a foreign government, they could acquit the defendant.”
The normally calm prosecutor was equally adamant. Gray reminded the judge that Kunstler often used the FBI as a “whipping boy.” He had successfully made a similar argument to prevent West German experts and US lawyers from testifying about conditions in Germany. “If selective prosecution is tried before this jury, then Assistant US Attorney O’Neill and I would have to testify,” Gray argued. “Really, the FBI has no significance on the issues involved.”
Kunstler took another tack. “Mr. Gray says this is like all other cases,” he reminded the room. “He made this a jury issue in his opening statement. We have the right to rebut, and we need to determine what went on. Who did Webster talk to, and what did the Germans want?”
“It was my decision to prosecute,” Gray protested.
Kunstler shot back, “Your honor, this may have been beyond Mr. Gray’s control.”
Coffrin wasn’t swayed. After a lunch break he denied Kunstler’s subpoena request without explanation.
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