Groth’s Informant

“Who’s gonna try the Hampton case?” Flint asked at the PLO meeting in early August 1974. We were sitting in the small area at the back of the office, baking in the Chicago heat. The air conditioner was broken and the one small, portable fan didn’t have a chance.

“I want to be involved, but the Attica cases will keep Michael and me in Buffalo most of the time,” Dennis said. I had assumed Dennis would try the Hampton case. Now it was up to Flint and me.

I realized then with both trepidation and excitement that I would be the most experienced PLO lawyer at the trial. I would have to take the lead in court: the backup quarterback who finds himself in the big game. I was not as good at strategizing as Dennis, nor as incisive at articulating the law as Michael. With only one civil rights case behind me, I didn’t know the civil rules of discovery very well. I had no experience proving damages and felt awkward and slightly ridiculous asking for money to compensate for someone’s life or injuries.

But the challenge was as exciting as it was daunting. Our accusations were more significant than Watergate: the murder of Fred Hampton, a promising young leader, was a greater crime than burglarizing the Democratic headquarters. The orders for both emanated from the same seat of power. It wasn’t Nixon aides H. R. Haldeman and John Ehrlichman giving them as in Watergate, instead it was J. Edgar Hoover and Nixon’s attorney general, John Mitchell.

I was happy to resolve my criminal cases and focus on Hampton. Uncovering government wrongs was PLO’s mission, and our lawsuit fit with the angry mood in the country. The week before our meeting, two thousand of us stood and applauded at the National Lawyers Guild convention in Minneapolis, Minnesota, as we watched Nixon resign.

The Senate Intelligence Committee, led by Democrat Frank Church, was holding public hearings investigating and exposing illegal intelligence operations. Their purview included the FBI’s Counterintelligence Program, which Hoover claimed had been disbanded in 1972. Nevertheless, the Senate committee was looking for ways to outlaw similar abuses in the future. The FBI’s role in the Hampton assassination, when fully exposed, should be exhibit number one. All we had to do was follow the evidence up the chain of command. Unfortunately, Judge Perry stood in the way.

After it was decided that Flint and I would lead the trial team, Peter Schmiedel and new attorney Holly Hill indicated they wanted to work on the Hampton trial as well. “It’s why I joined the office,” Holly said, and they both were already well grounded in the facts. The plan was for them to work their way into taking depositions and eventually speaking in court. They would even participate in the trial if we had the resources to support four of us in the courtroom.

I had become the chief rainmaker at PLO. But I was less and less available to do paying criminal cases as the Hampton case moved toward its trial date in January 1976. The income stream to the office became a trickle.

When Holly and Ralph Hurvitz graduated from Northwestern Law School, they turned down the opportunity to make a minimum twenty-five thousand dollars per year, even at a Legal Aid job. They could have earned two or three times that in private practice. Instead, they accepted the one hundred dollars per week that PLO would try to pay them.

Charles Hoffman, nicknamed Chick, joined PLO shortly after Holly and Ralph. Chick grew up in Maywood, where he hung out mostly with black kids. He knew and emulated Fred at Proviso East High School. He joined us as part of Fred’s legacy. Chick was particularly adept at research and writing. He also was refreshingly even-keeled in the midst of the tensions our practice engendered.

We used to say that satisfaction from our work was our real compensation. I still feel that way. In the late 1960s and early 1970s we were part of a movement. We had sympathetic ears to listen to our struggles and had the added compensation of feeling we were making a difference.

With Dennis in Buffalo, Flint shared major responsibility for the case with me. If he felt any apprehension, he didn’t show it. He was an indefatigable scrapper, a battler. I knew this from playing basketball with him. He was the driving point guard, passing or taking it to the hoop, whatever was necessary to score and to win. He was just as relentless when he was on the trail of documents or tracing the FBI’s devious efforts to avoid discovery. He wasn’t yet sophisticated or smooth in court, but his persistence and his loyalty made up for it.

I mentioned that Holly and Ralph had joined PLO after graduating from law school. When I first met Holly, with her warm brown eyes, high cheekbones, and mischievous smile, I became infatuated with her, and we started a relationship. A year later she moved into Seminary Street, where she, Michael, Mara Siegel, and I each had our own bedroom. My relationship with Holly was tempestuous from the get-go. I protected myself from the vulnerability of love by deciding Holly wasn’t political enough. She protected herself as well. After we broke up I realized my feelings too late. There was tension as we both continued to work together. But despite broken hearts and hurt feelings the show went on, and so did our pursuit of Hampton’s killers.

All of PLO remained committed to the Hampton case, even if Flint and I took primary responsibility. When we needed to write motions, others in the office helped with the research and drafting. PLO was far from perfect, but in retrospect I don’t think any one or two or three of us could have worked so hard and so long had we not had the collective to support us. It was the retreat where we found camaraderie and sympathy after a tough day in court, the place we came to tell our stories and be tended to, and where we got help with legal strategies. It gave us the strength to endure.

“How come you guys are so down in the mouth?” Mara Siegel would ask, mimicking our “serious selves.” “Doing time in the courtroom can’t be as bad as time behind bars.”

Of course, she was right. We’d lick our figurative wounds and go on.

Flint asked about moving the office downtown for the trial later that fall. It was a burden bringing boxes of files downtown for every court date. At trial we couldn’t retreat to our office for lunch breaks, or go there as easily in the evenings after court. Looking around at our hexagonal cubicles with dirty, plasterboard walls that were four feet short of the ceiling and egg cartons above to muffle the sound, I realized we could never do depositions at our current location. Also, the neighborhood had become increasingly gentrified. The struggle to maintain Lincoln Park as a place affordable to Puerto Ricans and other working-class people had been lost. There was less and less reason to stay.

I liked being able to walk to work in blue jeans and walk home late at night. There would be a different atmosphere in an elevator building in the Loop. Despite my reservations, I could see the move was going to come before the Hampton trial started.

The Hampton team—Flint, Dennis, Holly, Peter, and I—stayed together after the regular office meeting. We decided to work in three major areas to get ready for trial. One was proving what happened during the raid. We could rely on the plaintiffs’ accounts, the ballistics evidence, and the testimony of Robert Zimmers from the FBI crime lab as well as the many false stories of the raiders.

I agreed to handle the firearms evidence although technical detail was not my strength. I accepted the assignment with some trepidation. Unlike Skip, the fine points of evidence gathering and testing were not my forte. Not yet anyway.

The second area of work was obtaining the evidence to prove the raid was part of COINTELPRO. Flint had renewed our requests for FBI and COINTELPRO files after Mitchell’s deposition. Without stating it, we understood Flint would continue to take the lead in enforcing our document demands and uncovering the COINTELPRO connection to the raid.

And finally there was Groth and his supposed informant. His deposition was scheduled for the next week. John Coghlan, Groth’s attorney, had already stalled Groth’s deposition for six months. We had gotten a hint of his reason earlier that summer: Coghlan was trying to find a dead Panther who might qualify as Groth’s informant if Groth were ever ordered to name someone. A live person would obviously be harder to control and would likely dispute Groth’s claim. From his questioning of the survivors at their depositions, we knew Coghlan was considering Clifton Morgan, aka Babatunde Omowale Babatunde, who had died in July 1970 in an explosion near some Illinois Central Railroad tracks. The police, FBI, and coroner had concluded he blew himself up accidentally, carrying or trying to detonate a bomb.

Coghlan asked every plaintiff at his or her deposition if they knew Babatunde and if he had been at 2337 West Monroe the week before the raid. Most of the plaintiffs did not know him and none of them said he was present in early December, when Groth claimed his informant viewed the weapons in the apartment. This didn’t deter Coghlan. We later learned he was secretly taping interviews with other witnesses, trying to find someone who would say Babatunde had been in Fred’s apartment.

When we finally got the transcripts of these interviews after the trial, they showed Coghlan suggesting, begging, and even threatening witnesses to place Babatunde at 2337 prior to the raid. “I don’t recall seeing him there,” was the universal response.

Holly agreed to work on the Groth issue and Peter on amending the complaint to add the FBI higher-ups. “Groth is lying about having an informant to protect,” Flint said as we ended the meeting. “He’s protecting his own ass from perjury.”

On August 24, Sergeant Daniel Groth entered the deposition room of the Lawyers’ Committee for Civil Rights, with Coghlan at his side. Groth refused to look toward Flint and me, and didn’t say hello. Several minutes later his nostrils flared when he finally turned in our direction and shot us a nasty sneer. PLO had been a thorn in his side ever since we exposed his trumped-up version of the raid delivered to the newspapers and TV stations in December 1969. I remembered his televised words: “It was fifteen minutes of hell, and a miracle not one policeman killed, not one policeman shot. It only stopped because their arsenal was not equal to our police arsenal.”

Sergeant Groth was tall, with dark hair, a bony, angular face, and a deep voice. He spoke like someone used to giving orders and not being questioned. Groth would have been tough to question on his own, but with Coghlan running interference, it was even harder. Coghlan often interrupted our questions with objections and instructions to Groth not to answer. Sometimes he signaled Groth: “Sergeant Groth has already answered that question and told you …” adding what Coghlan wanted Groth’s answer to be.

Nevertheless, Groth took responsibility for many of the questionable police actions. He unapologetically stated that he authorized his officers to carry their own personal weapons on the raid. This included shotguns, automatic pistols, and Gloves Davis’s .30-caliber rifle. He also approved Officer Gorman being issued a .45-caliber machine gun, although he admitted no one had ever taken a machine gun on a previous raid led by him. Groth said he hadn’t run the raid at 8:00 P.M., when his informant had told him the apartment would be vacant, and instead changed the raid time to 4:00 A.M., because he wanted to use “surprise.” He chose not to take bullhorns or make a phone call to announce the police presence, although he knew that when the FBI had done this in June it had led to the Panthers not resisting their entry. He also decided against tear gas.

Groth called the raiders together at 4:00 A.M. on December 4. In his early statements, Groth, like the other raiders, pretended it was a routine search and they were totally surprised to find armed Panthers there. That didn’t look credible given the arsenal of weapons they took on the raid. Moreover, it conflicted with their defense at their criminal trial, which focused on how dangerous the Panthers were. Groth’s current testimony fit our conspiracy claim quite well. He admitted informing the raiders that 2337 West Monroe was the apartment frequently occupied by Fred Hampton, and he told them that there was a large cache of weapons there. Groth testified that he warned the raiders, “Hampton sleeps with a .45 by his bed.”

I kicked Flint under the table. Groth had not mentioned this most provocative detail in his previous testimony. Telling the raiders this at the preraid briefing and showing them where Fred slept on the layout was an invitation to murder. Groth also admitted he had referred to a “rough sketch” when describing the layout of Fred’s apartment to his officers.

Flint then asked Groth what transpired at the meeting on December 2 when, Mitchell had testified, Mitchell showed Groth and Jalovec the floor plan. “I have no recollection of the meeting,” Groth answered. Flint stared at him. Flint kept pressing Groth for what he did recall about his contact with Mitchell. Groth pushed the lie more: “I never met or spoke with Roy Mitchell.”

I looked at Flint, rolling my eyes and nodding sarcastically. Coghlan threatened to terminate the deposition, commenting that Flint and I were showing his client disrespect. We didn’t respond. Instead, Flint formulated the next and most obvious question: “Where did you get the information for the search warrant?”

Groth hesitated, looked at Coghlan, and then began to testify. It sounded like even the cadences had been rehearsed. Groth said that on the night of December 2 he received a call at home “out of the blue” from an informant who told him there were weapons at 2337—the same information that Mitchell testified he gave Groth and Jalovec at their face-to-face meeting on the same day.

When Flint probed Groth on when his informant saw the weapons in Fred’s apartment, Coghlan interjected authoritatively, “I order Sergeant Groth to refuse to answer on the grounds that to do so would endanger the lives of other persons.”

“Is your informant alive or dead?” Flint asked Groth, which elicited the same objection from Coghlan.

“Is it the informant or someone else Groth is protecting?” Flint turned and asked Coghlan.

Coghlan [ignoring Flint]: “I order Sergeant Groth to refuse to answer.”

The only question Groth answered was, “Did you pay him?” He said he didn’t pay him. The informant provided Groth with information for “advancement in other areas.”

Groth testified that he took notes of his conversation with his informant and made a sketch on a yellow pad from his informant’s description of 2337. He used both to brief the other raiders, and he had them with him when he briefed Hanrahan on December 3. He kept his notes and his sketch of the layout of 2337 in a file with information from other informants.

“And where are those notes and sketch today?” Flint asked.

“I destroyed them immediately after the raid,” Groth responded.

“And the larger ‘informants’ file?”

“I destroyed that also.”

After Groth’s deposition, Flint, Holly, and Peter drafted a motion to compel the court to order Groth to answer questions about his informant. The law was clear; the informant’s privilege protected only the safety of the informant, not “other persons.”

Four months later we got a hearing. Because of the importance of the motion, Morty Stavis, a seasoned constitutional lawyer and a founder of the Center for Constitutional Rights, came to Chicago to argue for our side.

Flint introduced Morty Stavis to Judge Perry, highlighting some of his many accomplishments, including briefing and arguing several U.S. Supreme Court cases with important constitutional issues. Judge Perry couldn’t have appeared nicer or more open-minded as he welcomed Stavis and said he looked forward to hearing his arguments.

Morty Stavis, approaching sixty, was short and stocky, with curly hair and a well-trimmed goatee. He was wearing a herringbone sport coat and had a relaxed confidence as he approached the lectern to address the judge.

His argument was both impassioned and simple. The informant, if he was alive, had critical information that could decide many of the factual issues in dispute, such as whether Fred was drugged and what the police knew before the raid, and possibly what took place during the raid. The law required a balancing test between the interests of the party seeking the information and the need to protect the informant. In this instance, the very existence of the informant, whether he was reliable, and his value as a witness to the events of December 4 greatly outweighed law enforcement’s interest in keeping his identity secret. If the defendants intended to name a dead man, then of course there was no legitimate law enforcement purpose or legal basis to refuse to disclose his identity. If the informant never existed, then the claim of privilege was being put forth in bad faith, and sanctions were appropriate against the defendants and their lawyers.

When he sat down, I thought maybe even Judge Perry had been convinced. Coghlan and Volini responded in their most indignant, pontificating rhetoric. Volini went first: “The county of Cook is a political subdivision of the state of Illinois, as is the city of Chicago, and the privilege was asserted by Sergeant Groth upon direction by me and Mr. Coghlan for the protection of the citizens of the city of Chicago, and it was asserted by the government and has been consistently asserted by these two governmental agencies.”

Not to be outdone, Coghlan stood up and stressed that Groth had refused to answer based on Coghlan’s instructions as “the state’s attorney of Cook County as far as this case is concerned.” They puffed themselves up, pretending to speak on behalf of government entities rather than as the court-appointed private lawyers they actually were.

Judge Perry ordered us to return the next day, when he would make his ruling.

“For once I think Perry is taking our arguments seriously,” Flint said as we left.

When we returned the next morning, Morty Stavis had flown back to New York. Judge Perry began, “I am concerned with the naming of the informant because of the danger that counsel for the defendants have stated they believe honestly and sincerely would result.”

Coghlan: “And danger to the lives of other persons.”

Judge Perry: “Oh, yes, the danger to the lives of the informer and maybe other persons.”

Perry raised our hopes when he ordered Coghlan to bring Groth to court that afternoon so he could question him about the identity of the informant in chambers. Coghlan and Volini were surprised by the judge’s order. They objected, but when Perry appeared determined, Coghlan asked that the interview be conducted without a court reporter. Flint and I immediately objected to this private ex parte interview with a party to the lawsuit without a record being made. I didn’t trust Perry to accurately report what happened, and we would have no transcript of Groth to impeach him with later. Perry overruled our objections.

After lunch, Coghlan brought his client to court. Groth looked a bit miffed but determined as ever. Flint and I were waiting expectantly, hoping for a breakthrough.

Judge Perry asked Groth to come with him through the rear door toward his chambers. We didn’t know what Perry would do.

“If Groth names Babatunde as his informant, they have a problem,” Flint said. “They can’t prove he was an informant or was even in Fred’s apartment in December.”

“Do you think Groth will take contempt to cover up his lies?” I responded.

A few minutes later the rear door opened. Groth followed Perry into the courtroom and the judge ordered Groth to take the witness stand. Groth stood by the witness chair without sitting down. He seemed to know the questioning would be brief.

Judge Perry: “Will you refuse to reveal the informant’s identity even if ordered to?”

Groth: “I will continue to refuse. (pause) I am refusing to answer based on my experience in this case as a police officer.”

Judge Perry: “Even though I should commit you to custody, would you still refuse? Is that your position?”

“I would respectfully decline, yes sir.” This could be the record a judge made before finding a witness in contempt. I was getting excited.

Judge Perry: “The witness may step down. The plaintiffs motion is denied.”

Flint and I both jumped up, fuming. This was a new one. The court was not going to require Groth to answer his question because Groth was willing to take contempt. Based on this logic, why would any witness answer any question he didn’t like?

“Sit down,” Perry ordered. He threatened us with contempt.

Groth hurried for the exit doors at the rear of the courtroom, shooting Flint and me a sadistic grin as he passed.

Perry scuttled off the bench a moment later.

Outraged by his decision, we filed a mandamus asking the court of appeals to reverse him. We argued that Perry’s ruling was so significant to the case, and so far off on the law, it constituted an abuse of discretion. Unfortunately, the higher courts gave trial judges a great deal of leeway on discovery issues.

Judge Perry responded with a vengeance to our accusation that he abused his discretion. “So you guys want to play hardball,” he challenged us on the next court date. He rescinded his previous order allowing us to take depositions by tape recorder, which we had sought in order to save court reporter’s fees.

The court of appeals turned us down. We went to trial under Perry’s order that we could not challenge Groth on the witness stand about the existence or identity of his informant. Orders we were determined to disobey.