Opening Day

We sat at the counsel table in the well of the vast Ceremonial Courtroom in the Dirksen Federal Building. After more than five years of preparation, we were starting jury selection.

The thick, dark blue carpet muffled the sounds of the attorneys and clients taking their places at the tables around me. This cavernous space was normally used for the induction of new judges or other special ceremonies. But because there were so many parties, lawyers, and spectators, as well as prospective jurors, Judge Perry had obtained permission to use it for our jury selection. Even the bench was grander than normal, a curved mahogany behemoth that rose five feet above the floor and extended twenty feet to each side, with raised chairs and room enough for several judges in the middle.

The area below was filled with six polished mahogany tables surrounded by cushioned black leather chairs on rollers. The walls were in the same dark brown wood as the tables, and the rich wood and thick carpet created a muted effect, unlike the filthy cacophony of the criminal court building. Business was conducted quietly, in a more sophisticated manner, in the federal courts.

The party with the burden of proof, the plaintiff, always sits nearest the jury. So Flint and I sat at the table only a few feet from the empty jury box. It, too, was surrounded by brown mahogany railings. I had lightly starched my shirts and dry-cleaned all three of my suits. That day I wore my brown wool one. Even Flint’s blue suit showed only a few wrinkles. Seated at our table was the large and swarthy Jay Schulman, director of the National Jury Project. His belly protruded from his corduroy sport coat. Jay was a sociologist and statistician from Columbia University. For four months he and his associates had been interviewing registered voters from Chicago and its suburbs, the area from which our jury would be selected.

Jay had used surveys in the Attica, Wounded Knee, and Daniel Ellsberg trials to show that prospective jurors in well-publicized political cases had strong biases and preset opinions about the facts. Schulman’s survey of the Chicago area showed that 96 percent of those interviewed had “some recollection of the events of December 4.” Two-thirds had already formed an opinion, and a majority of these believed the Panthers were partially or totally at fault.

The survey also indicated that half the people thought the government should use “any means necessary” to destroy groups “which threaten the present system of government.” A third said they would not award money for damages to the families of dead Panthers even if the evidence showed the police acted illegally. A vast majority said they would believe the testimony of a police officer over that of a Panther. The survey results did not surprise me and confirmed that we had an uphill battle.

We attached Schulman’s affidavit containing his findings to support our motion to allow us extra peremptory challenges. We needed many times the normal number because so many prospective jurors would enter with a bias against our clients. We also gave the judge a list of questions we felt were necessary to get jurors to divulge their opinions and prejudices.

On the other side of Schulman was Jim Montgomery, relaxed and smiling, not a wrinkle in his suit.

“I hope Jim is more effective with Perry than we are,” Flint said to me the day before.

“I’m sure he’ll be good with the jury,” I said. We were pleased to have him on the case.

Herbert Reid, an African American lawyer from the NAACP Legal Defense and Education Fund, sat next to Montgomery. Ever since their May 1972 report, Search and Destroy, condemning the raid, the NAACP had supported us, sometimes with funds and now with a full-time attorney for the trial. Reid, a law professor from Howard University, was an able and experienced trial attorney, but he was also in his seventies. We would learn he was prone to naps in the afternoon court sessions.

The seven survivors sat at the table next to us. Their expressions reflected their skepticism about the proceedings. “I hope we get a jury that can see through that old racist judge,” Doc Satchel whispered to me shortly after he walked in. Deborah Johnson, still with her Afro, and looking more together and resigned now than when I interviewed her after Fred’s murder, sat next to Doc. At our urging the plaintiffs were in their nice clothes, the women in dresses and the men in sweaters. Only Truelock was unshaven, giving a hint of his precarious life on the streets.

The Hampton and Clark families occupied the front row of the spectator section behind us. They wore guarded expressions also. They’d seen Hanrahan acquitted and didn’t trust the courts. Six-year-old Fred Jr. sat next to Iberia. He was looking around curiously, swinging his legs back and forth. His large, round face and broad smile already reminded me of his dad. We wanted the jury and the press to see this six-year-old fatherless boy; Fred’s brother Bill, a ganglier version of Fred, also was in the front row.

Fannie Clark, Mark’s mother, sat next to the Hamptons. She was a stout woman with a matronly air, who wore magnificent hats. Flint and I went over to thank her for coming from Peoria. She gave us each a big hug. “Thank you for what you’re doing,” she said warmly. Three of Mark’s eleven brothers and sisters were sitting with their mother. Behind the Hamptons and Clarks sat the plaintiffs’ friends, our friends, and folks working with the December 4th Committee.

The police officer and state’s attorney defendants stood around tables in the middle of the courtroom behind their attorneys Coghlan, Volini, and Witkowski, Coghlan’s associate. They smiled, patted each other on the shoulder, and joked. Many had been through this before with Hanrahan, when they were facing obstruction of justice charges. They knew the routine: they got paid their regular salaries to wear civilian clothes and watch and doze in the courtroom.

The FBI defendants—Mitchell, Piper, and Johnson—sat calmly in gray suits at their own table across from their attorneys Arnold Kanter, Alexandra Kwoka, and Edward Christenbury, on loan from the Justice Department. Only William O’Neal was missing. The FBI was keeping a tight rein on his whereabouts. The twenty-eight defendants, nine plaintiffs, and ten lawyers filled the buffed mahogany tables. Newspaper and TV people filled in the front rows of the spectator section. Cameras weren’t allowed. The sketchers with their large artist pads leaned forward from the front row in the center. Two were drawing Hanrahan, seated by himself. He had dropped out of the public eye after losing his last election. His forehead seemed furrowed in a permanent scowl.

Suddenly, Perry’s clerk stood up from his raised stand on the other side of the courtroom and bellowed, “All rise.” The door to the left of the bench swung open.

Perry entered and took his seat above us. He looked pleased to see the crowd below. “Be seated,” the clerk called again, and there was a rustle of clothing as we all sat in unison. Perry began by hearing the motions we had filed. First, we asked him to order the defendants to tell us if any of the persons we put on our witness list had ever been government informants.

“Motion denied.”

I argued our motion for extensive voir dire (questioning of the jury) and asked that we as plaintiffs be allowed extra peremptory challenges because of the prejudices our jury survey had uncovered in the jury pool. Judge Perry listened and then dismissed the National Jury Project’s four months of research with one comment: “I think we overemphasize this problem of prejudice because I find when jurors are fully informed, they want to do the right thing.” Schulman shook his head in disgust. Perry did agree to question the jurors individually about their recollection of the case but refused to allow us follow-up questions. Perry also ruled we could have only six peremptory challenges, fewer than he allowed the defendants.

Before we could object to his rulings, Perry told the clerk to “call the jury in.” The rear doors of the courtroom on our side opened and the first fifty potential jurors entered in single file. They occupied four rows of benches, cordoned off in the center of the spectator section.

I saw only a few black faces, and the average age appeared to be around fifty. It turned out that of the four hundred persons in the special panel, only twenty-three—less than 6 percent—were black. Voter registration lists were 17 percent black. Later we learned blacks called for jury duty were excused much more easily than whites.

Perry told the candidates that the trial “will take many weeks, possibly as much as three months.” In describing the incident, Perry referred to December 4 as a “gun battle,” the defendants’ position. He said, in his most skeptical tone, the plaintiffs “were alleging a national conspiracy to murder Fred Hampton and destroy the Panthers and that the police did all the shooting, and that there was a massive cover-up of the facts by all the defendants.” Perry quickly reminded them “these are only allegations.” He proceeded to tell the jurors that the defendants “vigorously denied” all our claims and their defense was that they were unexpectedly fired on when they sought to lawfully execute a search warrant.

As the questioning proceeded, Perry dismissed the jurors who claimed it would be a hardship to sit in a lengthy trial. This left housewives, retirees, and those employed by large corporations, which were required to pay their employees’ salaries during jury duty. Perry made a mockery of many of the questions we had submitted. He asked all the black prospective jurors, “Are you a member of the Ku Klux Klan?” and he asked the whites, “Are you a member of the Black Panthers?” Ignoring the puzzled looks he got in response, Perry continued. He often referred to African Americans as “colored people,” in spite of our objections. Perry did question the jurors individually and asked many of the questions we had submitted. But by disallowing follow-up questions, he had closed the door to exposing the depth of the jurors’ biases. Day after day we sat helplessly as he quickly rehabilitated whites who expressed negative feelings about the Panthers or even black people generally. “Can you put your feelings aside and give the parties a fair trial?” was his typical follow-up question. Only the most hard-nosed and clueless racist or someone who didn’t want to be on the jury answered in the negative.

The defense attorneys convinced Perry to strike black people who expressed the slightest sympathy for the Panthers or skepticism toward law enforcement. Perry did make it clear at one point in the three weeks of jury selection that he wanted at least one black juror. He told the defendants’ lawyers that Florence Smith, a middle-aged, pleasant-looking black woman, was “particularly well qualified.”

Ten days after the questioning started, Judge Perry imposed a gag order, prohibiting us from discussing the case with the press. He entered his order in chambers. When Flint and I objected to the gag order in open court, he told the bailiff to remove us from the courtroom.

“He wants a gag order on the existence of the gag order,” I griped to Flint as we were escorted out of the courtroom temporarily.

By the fourth week of January, questioning of prospective jurors had ceased, and it was time for us to exercise our six peremptory challenges. These gave us the right to challenge six prospective jurors without giving a rationale. We excused family members of cops. But we didn’t have enough challenges to excuse the heavily bouffanted Judy Norgle, who was dating a cop! Perry refused to excuse her for cause.

“I’m sure she’ll be fair,” Perry said as Norgle shot us a hostile glance.

After both sides exercised all their challenges, ten people remained in the jury box, nine whites and Florence Smith. Six would be regular jurors, and four would serve as alternates. Our jury’s average age was fifty, and most had no more than a high school education. This was not a good start.