By the time the Seventh Circuit decision came down, the aftermath of another event was demanding more of my time than the Hampton case. On July 22, 1978, a few weeks before our Hampton oral argument, there was a riot at Pontiac Correctional Center in central Illinois. Three guards had been stabbed to death and the prison was on indefinite lockdown. After Attica, I had represented prisoners in a number of suits challenging conditions in Illinois prisons. The century-old maximum-security prison in Pontiac was among the worst in the state.
Two days after the riot, or rebellion as we called it, I visited prisoners I knew at Pontiac. They urged me to get involved in defending whoever would be charged with the guards’ deaths. Prison officials were publicly stating they would seek the death penalty. For the next six months, I drove the one hundred miles to Pontiac Correctional Center at least once a week.
First, I gathered information on the conditions there, which included weeks and then months of twenty-four-hour-a-day lockdowns in tiny cells five tiers high in a steel cell house that was brutally hot during the day and freezing at night. Food, often containing rat feces and human hair, was passed to the prisoners through chuckholes in their cell doors.
PLO brought a suit challenging the continued lockdown. After we provided the court with prisoners’ firsthand accounts, we convinced Judge John Powers Crowley to accompany me to the prison for a surprise visit. The prison had been on twenty-four-hour lockdown for two months. He and I walked the intensely hot galleries strewn with stinking, uncollected garbage, watching comatose men sleeping in their underwear at noon. Judge Crowley did not want to tell me his impressions informally, but he kept shaking his head, and I could tell he was mortified. The next day he ordered that the lockdown be lifted.
The success of our lawsuit and the sympathetic and dramatic TV footage of the conditions at Pontiac Correctional Center turned the public’s sympathy from the guards and toward the prisoners as people came to understand the riot as a spontaneous response to inhumane treatment. Nevertheless, by the middle of 1979, the Department of Corrections charged seventeen prisoners with conspiracy to riot and murder. As the lawyer who had been visiting regularly since the riot, I had earned the confidence of most of the defendants. I was in the best position to organize the Pontiac Brothers legal team. With seventeen men facing the death penalty, I couldn’t abandon them. There were other PLOers to help with the Hampton case, and the new trial seemed far away.
The Pontiac defense occupied the majority of my time from late 1978 through the criminal trial, which began two years later. I played Flint’s role, marshaling and indexing the documents, and with Michael’s help, drafting many of the legal motions. I met with the defendants regularly in Pontiac and helped them recruit lawyers who would work for a joint defense. The Cook County Bar Association, Chicago’s black lawyers organization, encouraged their members to help the Pontiac Brothers. We wanted quality lawyers for all the men charged as quickly as possible to avoid the defendants getting nervous and suspicious and testifying against each other in exchange for leniency.
The follow-up legal work on the Hampton case fell heavily on Flint and Dennis, with backup from Chick and Jon Moore. Both were excellent writers and researchers. Jon had joined the office to work on the Hampton appeal and had proved his merits working on our reply brief. I was still available to read their motions, strategize, and argue in court, but the defense of the Pontiac prisoners was becoming as intense as the Hampton trial had been. Also needing my attention was our second son, Andrew Hampton Haas-Roche, who was born on September 5, 1979.
Flint’s stature in the legal community and his self-assurance grew with the Hampton trial and especially the appeal. He and other Lawyers Guild members started the Police Misconduct Litigation Manual, which remains the most highly regarded primer for civil rights attorneys. The first issue was devoted to an analysis of Judge Swygert’s opinion.
Flint tackled the new legal challenges in the Hampton case, more determined than ever. The defendants were petitioning the entire
Seventh Circuit to reverse Swygert. They needed a majority of the eight circuit judges to get a rehearing. Flint took the lead in answering the multiple arguments contained in the defendants’ briefs, which were basically rewrites of the issues they lost in the original appeal. On September 12, by a 3–3 vote, the rehearing was denied. If the two judges who’d recused themselves had remained on the panel, Swygert’s decision would have likely been revisited and very likely reversed.
A month after the court of appeals ruling, the Chicago Sun-Times reported that Judge Pell, who wrote the scathing dissent and who voted for a rehearing, had been an FBI agent and remained active in the Society of Former Special Agents of the FBI. This group lobbied for and funded the legal defense of former FBI director L. Patrick Gray, accused of illegal surveillances of radicals, as well as Thomas Kearney, an FBI agent charged with illegal mail opening and wiretapping. Pell had excluded his FBI stint and membership in the former FBI support organization from his official resume.
When the Justice Department informed Judge Perry it had decided not to appeal Swygert’s reversal of Flint and my contempts, Perry was so disappointed he wrote his own brief to justify his actions and uphold his contempt findings. This unprecedented partisan action by the trial judge did more to show “he was an activist seeking combat,” as we had described him in our appellate brief, than anything we could have done. I was delighted when the Seventh Circuit denied his plea.
Following Swygert’s instructions, Flint submitted a bill for our appellate work. He calculated he had put in 1,532 hours at $80 per hour and I had put in 542 hours at $90. Together with hours from the rest of our office and a multiplier because of the difficulty of the work and the uncertainty of getting paid, we sought $500,000 in appellate fees. John Coghlan, who had received more than twice that amount personally, was quoted in the paper, saying, “I’m pleased to see that for once they are not posing to be in this thing for the public good. I’m glad to see they like the buck the same as the rest of us do. It reinforces my opinion of human nature.”
Despite this endorsement of our humanity, Coghlan filed strenuous objections to our receiving any fees, and the Seventh Circuit set our fee award at one hundred thousand dollars.
As expected, Coghlan and Volini, who had already received over two million dollars of public money, filed for certiorari, or leave to appeal Swygert’s ruling to the U.S. Supreme Court. Putting more resources into defending Hanrahan and the raiders was met with strong resistance from black members of the Cook County Board of Commissioners and the City Council. A Chicago Daily Defender editorial captured the majority black sentiment:
The major decision makers at the Cook County and federal government levels deserve contempt for their decision to fight the Black Panther ruling…. Essentially, this means all of us taxpayers will continue to pour millions of dollars into an endless and futile effort…. As a small, vocal segment of the public, we state our resentment of this action. We believe the folks out in the street resent it too. There is no real doubt about what happened on Dec. 4, 1969. The only doubt is when our exalted public officials will stop playing games at our expense.
We answered the government’s petition to the Supreme Court on behalf of our five plaintiffs and hoped that our pleading would stand for all the survivors because Montgomery filed nothing on behalf of the four he was representing. We still had received no money, and the lengthy briefs in the Seventh Circuit and again in the Supreme Court were time consuming and exhausting. Michael and I were getting paid thirty-five dollars per hour by the state of Illinois for the Pontiac defense. That kept PLO afloat.
We feared that the defendants would get the four judges they needed to have the Supreme Court grant certiorari and take the case. Justice John Paul Stevens, a liberal justice formerly from the Seventh Circuit, had removed himself because he wrote the first Hampton opinion reversing Perry. We filed a brief to disqualify the very conservative justice William Rehnquist because he had worked in the Justice Department during the time of the federal grand jury and had been the chief attorney for Attorney General John Mitchell, a potential defendant in our case. Rehnquist refused to step down.
On June 2, 1980, more than a year after Swygert had ruled, the Supreme Court, by a 7–1 vote on the shooters and a 5–3 vote on the federal defendants, refused to take the case. Justice Lewis Powell issued a scathing dissent with respect to the federal defendants, reminiscent of Pell. He wrote that our objective was not monetary damages but “a larger target—the FBI.” Not surprisingly, Rehnquist joined Chief Justice Warren Burger and Powell in the dissent. Despite the decision upholding our opinion, the court reversed Swygert 7–1 on awarding interim fees, with only Justice Thurgood Marshall dissenting. Again, we had no funds to pursue the case and unpaid bills from the first trial.
When the Supreme Court denied certiorari, I was preparing the defense of Joseph Smith, one of ten Pontiac Brothers set to go on trial in September 1980. Each man faced the death penalty, and each had his own lawyer. Michael had convinced the trial judge to remove the case to Chicago, and the ten defense lawyers were meeting on a daily basis to prepare. I had never done a death penalty case, and here I was one of the chief counsel in what some called the largest death penalty case in U.S. history.
After seventeen months of Perry, I felt I could handle just about anything in court. I was by no means alone. The Pontiac Brothers had interviewed and recruited many of the top black criminal lawyers in Chicago and nationally for the defense team.
The family and friends of the men on trial, together with those concerned with Illinois prison conditions, formed the Pontiac Brother Defense Committee. They sent out a steady stream of information about the overcrowding and abhorrent conditions in Illinois prisons. “Put the state on trial” was our motto, and hundreds of spectators, mostly from the black community and many from families of prisoners, came to support the men on trial.
In August 1980, I hauled my boxes of Pontiac files to Twenty-Sixth Street, where the Pontiac defense team had been given an office and where the defense lawyers met regularly. The trial was set to start the next month. “I’m sure you can handle Hampton,” I said to Flint, as I was about to embark on another long and contentious trial.
“No problem. Got it covered,” my less-than-effusive but dogged partner replied.
Flint had been studying and cataloging the transcript and the record to implement Judge Swygert’s orders that Groth must disclose his informant and the new judge must consider sanctions against the feds. Jon Moore and Chick Hoffman also worked with Flint.
In September, as the Pontiac trial was starting, Flint and his team filed a new interrogatory and document request on Groth to name his informant, to produce documentary proof that he had an informant, and to schedule his deposition. Ten days later they filed a motion to amend our complaint to add Hoover’s estate, former attorney general John Mitchell, Jerris Leonard, and the FBI heads of COINTELPRO as defendants.
The Hampton case was reassigned to Judge Milton Shadur, a liberal judge and scholar of constitutional law. We were optimistic. On September 25, 1980, he set the first status date. Flint opened the session appropriately: “Ten years later, here we are back in court—the city, state, and federal governments are still spending millions of taxpayers’ dollars to defend this murder.” That was as far as he got.
The defendants had filed a motion to recuse Shadur. They argued that he was prejudiced because one of his former law partners had been a member of the Lawyers’ Committee for Civil Rights, which had written an amicus curiae, or friend of the court, brief in support of the special prosecutor seeking to indict Hanrahan in 1971. Before Shadur could take any action, he had to resolve the recusal issue. He announced he would rule in October. Frustrated, Flint told the press as he walked out, “They’re trying to get rid of the only judge who might be fair.”
In October, Shadur wrote in an opinion that he believed he was impartial, but his “impartiality might be said to be questioned” because of the position of his former law partner. He declined to keep the case. Shadur was a stickler on the law and very protective of constitutional rights. We appealed, claiming there was insufficient basis for him to remove himself, but the Seventh Circuit judge refused to reverse his decision.
Judge John F. Grady, a former federal prosecutor with a reputation for issuing tough sentences to criminal defendants, was assigned the case. Grady was a large man with a particularly big head and thick bushy hair with a lock that frequently dropped over his forehead. He had an imposing manner reinforced by a deep voice. Grady was known as a no-nonsense judge. At the first court date, he addressed the lawyers: “It will be a long, arduous trial. It will cause the reliving of events extremely painful to people in this community. Settling out of court would be an act of legal statesmanship.”
Grady recessed the case for two weeks to give the parties an opportunity to explore settlement options. I liked Grady’s instinct to settle, but I knew the defendants weren’t worried enough yet to offer real money. We’d have to change their prospects for the new trial.