Rock Bottom

No rest for the weary. Flint and I had two days to put together jury instructions. They contain the law the jury applies in evaluating the facts. Each side submits the instructions they want. Some lawyers say a jury decides with their gut. Others say the instructions are critical, both in determining how the lawyers argue the case in closing and ultimately how the jury will decide. I waver between the two but now believe the instructions are critical in a close case.

Most of our important instructions were rejected, just as our motions had been. The instructions Perry approved were submitted by the defendants and defined the law in such a manner that, if applied, the jury could not possibly find in our favor. For example, Perry gave the defendants’ instruction on “assumption of risk,” a tort defense, which allowed them to argue that the jury could find that the Panthers’ possession of weapons justified their murders. Flint and I realized the jury would have to disobey the instructions to find for the plaintiffs. “Maybe they’ll see through him and go with what they know is right,” I tried to convince Flint.

“That’s giving them a lot of credit,” he said. “Maybe Florence Smith will get it, but I don’t know about the rest.” We divided up closing arguments. Montgomery had called and, despite being gone for most of the past six months, said he wanted to lead off.

At three o’clock in the afternoon of June 15, Montgomery returned to court for the first time in many weeks and began closing argument. The courtroom, which had been largely vacant of late, was packed once again, and the press was back. I wondered if I looked the five years older I felt since the trial started. Montgomery began by telling the jury what the case was not about. This included the Panther philosophy, the conduct of lawyers, and revolution. The defendants chose not to conduct the raid at 8:00 P.M. when it was safe. “If they had, Fred and Mark would be alive.”

Montgomery described the predawn events. Jones fired first, and then the police burst through the front door. The apartment was secure immediately after the officers entered the “threshold of the living room,” but they kept firing. He explained that the defendants were stuck with their original lie that “Brenda had sat on the bed calmly pumping her shotgun,” as they entered. There were no shells and no impact points to corroborate their story. He demonstrated how ridiculous the defendants were in trying to move Brenda from where they had clearly placed her originally to a position where it might have been physically possible to fire out the front three doors leaving no impact point. Next he derided “the most ridiculous part of their story,” the defendants’ claim of how the occupants broke the three cease-fires.

“Throughout the whole of my life,” Montgomery said, “in movies or events, I never heard anybody, anybody, use ‘Shoot it out.’ I’ve heard, ‘You’re going to have to kill me.’ Why say ‘shoot it out’ and fire one shot? Any idiot wouldn’t do that. If you said ‘shoot it out,’ you would do it. Bring your common experience of life to bear.”

Montgomery offered as proof that Fred had never left his bed, an argument I had not considered. The photo of Fred lying in the dining room showed plaster dust on his back. Deborah had described it descending in her bedroom while the police were firing and the bed was shaking. Fred must have been lying on his stomach to end up with the dust on his back.

Finally, he got to Carmody. Both his early statement and written report indicated he saw a hand extending from the rear bedroom firing a .45 at him as he entered. Later he saw the .45 next to Fred’s hand as he lay in that room. Carmody was now saying the hand extended from the dining room, which he had called the rear bedroom. But there was no bed in there.

Montgomery continued, saying

When Abraham Lincoln was talking to his cabinet, he asked them, “If I said a donkey’s tail was a leg, how many legs would a donkey have?” To a man, the cabinet in unison answered “five.” Lincoln responded, “No. You cannot make a donkey’s tale a leg by simply calling it a leg. He would have but four legs.” You cannot make a dining room a rear bedroom by calling it a rear bedroom.

Montgomery walked over and stood in front of the jury box. “History will look at this case and your verdict. Your verdict is important. You will have the opportunity to sit here and put to rest finally and forever what happened on December 4, 1969.”

The next morning, Flint focused on Groth’s inconsistent stories about a floor plan. First Groth had claimed, “No, I didn’t have a floor plan, didn’t have a layout.” Later Groth admitted he did have a floor plan but destroyed it. Then Flint reeled off the evidence of Fred being drugged, showing how carefully our expert, Dr. Berman, had run her tests, in contrast with the coroner’s office representative George Christentopolos, whose experience was “testing mayonnaise for Durkees.” The defendants’ experts had failed to adjust the pH downward in the tissue samples and had run standards thirty times too high, which masked the barbiturates. Eleanor Berman had gone back and run the same tests as the defense expert, Dr. Mason, with samples containing secobarbital and they did not turn yellow as Dr. Mason said they must if secobarbital, were present.

Flint ended with, “We still haven’t heard from Groth’s supposed informant.”

“You will not go into the question of the informant any further,” Perry said.

Two hours later, I asked the jury to come down and gather around the scale model that showed the location of all the bullet holes, while I walked them through the raid. The model was large, and it was easy to demonstrate that the shots the defendants claimed the plaintiffs fired could not have occurred without striking one of the interior walls or the entrance area. There were no bullet holes in these locations.

The model and Zimmers’s testimony told the story. Ninety shots to one; no shots from the Panthers except one from Mark Clark’s gun at an upward angle as he fell from a police bullet.

“The plain fact is there was no shooting at the rear of the apartment other than by police officers,” I said. “The plain fact was that they knew where Fred was, they knew where he slept, and that killing Fred Hampton was the intent of at least some of the officers who came on this raid.”

I argued that Carmody was the only officer who entered at the rear whose weapon could have caused the fatal bullet wounds to Fred’s head. Carmody dragged Fred’s body into the dining room for all to see, claimed he did not know whether Fred was dead but never checked, and brought his body out to where guns were within easy reach. “Carmody knew Fred was dead because he’d just fired two shots into his head with his .38 snub-nosed revolver.”

“When you put it all together, you will find that Edward Carmody went in there to murder Fred Hampton.” I sat down.

Volini, the big man with the suit jacket that always bulged over a roll of fat around his middle, walked over to face the jury. “The 1960s was [sic] a violent time, and the Panthers aided the violence. Did police officers have to analyze and understand what ‘Off the pig’ and ‘Power comes from the barrel of a gun’ meant? Gilhooly and Rappaport were twenty-five years old when they were ambushed.”

I objected. The facts of the November 13 incident were disputed and were not in evidence.

Overruled.

Volini argued that Truelock fired, and the others picked up guns and may have shot. The “shells of the Black Panthers are in the pockets of the lawyers who gathered evidence.” This was the first time Volini had made this accusation.

As expected, Volini attempted to convince the jury that the Panthers’ possession of weapons was an assumption of risk that exonerated the defendants. He went further: “Fred Hampton assumed the risk of getting shot if he took some drugs.”

I objected. This legal theory was a bit much even for Perry, who told Volini he would instruct the jury on the law.

“Watch for the low blows,” I whispered to Flint later that afternoon as we watched Coghlan approach the jury. We had come to despise this bully, who flaunted the freedom Perry gave him to make every nasty insinuation he could against the plaintiffs, the Panthers, and Flint and me. Sometimes, when he got excited, Coghlan’s mouth would stay narrowly open like a fish. His red cheeks inflated and deflated as he tried to breathe through the opening. Despite his uncharming appearance and unsubtle ways, or perhaps because of them, Coghlan was the most effective of the defense attorneys.

He began by commenting that all the attorneys except Flint and me had conducted themselves “honorably.” Quickly he moved to his main theme. “I believe Fred Hampton was a leader and told the truth,” he said, “including that he would blow peoples’ heads off.” A few minutes later we recessed.

The next morning, Perry reversed his ruling of a week before and allowed us to ask for punitive damages. Perry claimed he had ruled against us because we had withheld a key case from him that proved our position was correct. Perry said that he had only discovered the case in reviewing our mandamus petition to the Seventh Circuit. In fact Flint had provided Perry’s clerk with the correct citation to the case before Perry ever ruled. But Perry didn’t want to admit he’d been so anxious to rule against us he’d made a mistake that might get him reversed on appeal or at a minimum one that would show his bias. The judge interrupted Coghlan’s closing argument and gave us five minutes to prepare to argue punitive damages to the jury.

Flint pointed out the defendants’ meetings, their planning, the floor plan, and the resulting bullets directed toward Fred’s bed—clearly marked on the floor plan—to show intent and malice, requirements for the awarding of punitive damages. I focused on the volume of police shots, the beatings, kicking, and racial slurs inflicted on the plaintiffs after the raid, and the photos that showed how the defendants tore up the apartment when they were done shooting.

“Of all the photos,” I said, “the one that demonstrates their intent most clearly is the one of Fred lying on the door, bleeding from his head. Nobody checked his life signs or attempted to help him. Nobody covered him up. They waited for the photographers.”

Coghlan countered. “I will tell you how a police officer feels. They don’t publicly admit fear but they have it. Police who don’t protect their partners end up in the mailroom. No one wants to ride with them. Officer Davis was a tough guy in a tough business. If he had not gone in low, part of him would be splattered where Jim Montgomery said the rifled deer slug was in the entrance foyer.

“What is common to all good policemen is that they would as soon be dead than be known as the guy that backed down when his partner is needed.” Coghlan praised Gorman and Groth for their bravery in entering the apartment to back up Davis.

Coghlan’s closing argument was based on what Coghlan implied was his own personal knowledge. A lawyer is not allowed to tell the jury about his life or refer to supposed experiences outside the courtroom, but Coghlan got away with it.

I had ten minutes for rebuttal. I told the jury Coghlan had obviously been a cop.

Coghlan jumped up, feigned surprise, and claimed I had brought up a new matter. He wanted time to respond. I objected, but Perry gave him two minutes when I finished.

Going back to the facts after Coghlan’s emotional appeal was difficult, but there were some points I wanted to clarify. Coghlan had argued that Jones’s shotgun would not fit horizontally in the entranceway, so he could not have fired the first shot. I demonstrated that it could, and if it was held with the butt against the entrance hall door, the barrel would be at exactly the three-to-five-degree angle upward that Zimmers specified was the direction of Jones’s shot.

I argued Davis’s testimony that Mark Clark was just rising from his chair when Davis shot him was totally improbable. Davis placed Clark and his chair “in the middle of the living room.” For Davis’s testimony to be true, Clark would have had to fire his shot at an upward angle from below and just inside the living room door, as the ballistics evidence indicated, stand up and move himself and his chair to the middle of the living room, and then sit back down, all in the midst of gunshots from Groth and Davis. The more likely scenario was that Clark had been shot near the living room door and his gun went off as he fell.

My argument ended with a flourish. Perry wrongly accused me of showing the jury a photo that he claimed had not been admitted into evidence, but in fact it had. Perry told the jury, “Listen to me, not Haas.”

I responded, “You are the determiners of fact, ladies and gentlemen, thank God.”

Coghlan’s two-minute rebuttal was well rehearsed.

“I’ve never been called upon to explain how I worked my way through law school,” he said. “I was a police officer from 1955 to 1957. I quit when I got my license. My partner was black and took five bullets in the belly, and I was with him when he died. I did not have what it takes to go through that again.”

Of course everything he said was inflammatory, irrelevant, and based on a supposed incident outside our courtroom. After the jury was excused, I moved for a mistrial for Coghlan’s “pulsating and probable lie to the jury.” Denied. Perry let him get away with it.

Later, Perry spent two hours reading the instructions to the jury, and at 7:15 P.M. on Thursday he sent them to dinner and told them to organize themselves and begin deliberating in the morning. They would remain sequestered at a hotel until they reached a verdict.

I felt some relief but little confidence when the jury finally marched out to deliberate. There was nothing more to be done but collect the admitted exhibits to send to them … and wait.

Flint and I had more than our usual two beers that night at John Barleycorn, a Lincoln Park pub, but underneath the momentary warmth and buzz, I feared what our jury would do. It was clear Perry and the defendants expected a quick verdict in their favor. Perry even suggested to the jurors that they might finish their deliberations before the weekend. That would have been on Friday, after only one day of deliberations, a remarkable feat given the lengthy trial.

On Friday, Flint and I went to the office in blue jeans. We sat there nervously, with our suits hanging nearby, ready for the call telling us the jury had reached a verdict. In the afternoon Flint said, “Well, we’ve kept them out for a day. That ain’t bad, given Perry’s instructions.”

“Whoever heard of ‘assumption of risk’ in a civil rights suit?” I replied.

“Can you believe Volini argued that if Fred had taken drugs, he assumed the risk of being murdered in his bed?” Flint asked. “By that logic, any black kid on Chicago streets after dark assumes the risk of being beaten by the police.”

Our cynical banter continued over the weekend with no calls from court. On Sunday morning, the Sun-Times ran a lengthy article with photos of Flint, straight blond hair almost to his shoulders, and me with bushy curls and sideburns. Today I see how young and unlawyerly we looked. Dennis Fisher, the Sun-Times reporter who had been covering the case, came to our office the day before with a photographer and interviewed Flint and me. The article called us “Panther lawyers: tight-budget crusaders …” and noted that

even before the trial started, Haas and Taylor were deeply involved in preparing the case. Throughout their effort, they have worked 70 and 80-hour weeks at negligible pay trying to win for the plaintiffs $47.7 million in damages from the police raiders. Their performance hasn’t always been polished, but their enthusiasm never has flagged, in spite of what they continue to regard as the hostility of the judge.

“It’s like playing in the World Series against the Yankees with their manager as the umpire,” Flint was quoted.

I spared the metaphor. “Whether it’s his will or his whim, the eighteen months have been excruciating. The law has been turned upside down and stretched every way to defeat us. We can’t underestimate the vengeful side of Judge Perry, and no matter which way it goes we think the other side will attempt to put us in jail to cover the cover-up.” Perry had taken a number of contempt claims against Flint and me under advisement, and we feared he would give us more jail time when the case concluded. Our efforts to expose the judge’s bias were not merely letting off steam, although there was plenty of anger behind them. They were to alert the public that a verdict against the plaintiffs did not follow a fair trial and should have no credibility.

The news story continued. “Coghlan … has referred to Haas and Taylor as ‘young punks.’ Haas and Taylor have called Coghlan a ‘Nazi storm trooper.’”

After the recriminations, Flint explained our position more clearly near the end of the article. “We dare to come to the king’s throne and say he’s wrong. But he’s got all the power. We can’t forget that. We’re just committed to an idea, and every piece of evidence that comes out showing more FBI involvement has told us we must pursue this case. It’s a matter of government assassination being exposed.”

On Monday, June 20, the clerk called us in. When we arrived in court, Perry passed us four notes sent to him by the jury over the weekend. The first one on Saturday morning came from four of the jurors and asked if they could go to mass on Sunday. Perry told us he responded “only if they all agreed,” and they had not gone. The second was sent Saturday afternoon and said the jury was “hopelessly deadlocked and cannot reach a verdict.” Perry said he ordered them to continue deliberating, which led to the next two notes on Sunday, which said the same thing, the last one adding, “More deliberations will not result in a unanimous verdict.”

Eighteen months and then a hung jury, it seemed a nightmare, but then I thought, Could we realistically have hoped for more? It was better than a verdict against us.

Perry should have called the lawyers in after each note. He didn’t, I realized, because he didn’t want a hung jury. He wanted them to continue to deliberate and decide for the defendants, as his instructions had all but mandated.

The defendants asked that the jury be instructed to continue deliberations and negotiate with each other. Flint and I conferred. Normally, plaintiffs would seek further deliberations that could lead to a favorable verdict. A hung jury is usually considered a victory for the defense. But we knew the atmosphere in the courtroom and the one-sided jury instructions. “Do you really think they understand the judge’s bias, so they can discount his remarks, ignore the instructions, and vote damages for Panthers?” I asked Flint.

To ask the question was to answer it. Flint responded, “I doubt it.” Neither of us liked our chances with this jury after this one-sided trial. In addition, the jurors’ notes had been signed by our presumed nemesis, “Judy Norgle, foreperson.” Another bad sign.

Perry asked each side our position. Coghlan and Volini then said they wanted Perry to declare the jury hung, which meant a mistrial, but before he did, they wanted him to reconsider the defendants’ motions for directed verdict, which they had filed but had never argued. If their motion was granted, the case would be dismissed based on lack of evidence.

I said that after three days of a deadlocked jury, Flint and I wanted Perry to declare a mistrial, but since Montgomery wasn’t there, we needed to recess until we could confer.

Perry called the jury in and asked Judy Norgle, “Are you able to arrive at a verdict?”

“No, we are not, Your Honor,” she said emphatically. Perry told the jury they did not need a unanimous verdict on every plaintiff or every defendant to reach a verdict on the others, and they should continue deliberating until he called them back at 2:00 P.M.

Later we met with Montgomery and told him why we doubted more deliberations would work to our benefit. “I don’t want to do this again,” he said. “I want a verdict now.”

I suspected the case was at its end when the jury returned at 2:30 P.M. In addition to Flint, Montgomery, Reid, and me, the rest of PLO was present for our side. The press was there along with as many plaintiffs and supporters as we could reach by phone.

Perry called in the jury. They looked haggard and angry. Florence Smith, the sole black juror, was the only one who looked at us. “I am asking again if you are able to arrive at a verdict,” Perry said.

“No, Your Honor, we haven’t,” Ms. Norgle responded, resolutely.

“Is it likely with further deliberations you will be able to reach a verdict?” Perry inquired.

“We will not.” She was unequivocal.

Perry excused the jury and again asked each side its position. Montgomery spoke first. He argued that the length of the trial and animosity between the parties and lawyers might make a verdict “difficult to reach, but they should continue deliberating.” Flint and I disagreed. I argued that “Judy Norgle was firm, no hesitation in her response.” The jury had been declaring they were deadlocked for three days.

Coghlan also asked that deliberations cease but again urged the court to rule on the defendants’ directed verdict motions before the jury was excused.

As soon as he finished, Perry commanded, “Bring the jury.”

I sensed something bad was about to happen. I stood up and approached the lectern. “Judge, I don’t see any basis for making rulings on those motions at this time. I would oppose that and ask for an opportunity to argue.”

Perry: “We have it under advisement. We don’t need further argument on them.”

Haas: “This is an attempt to preempt the ruling of the jury. I don’t think this would be the appropriate time for the ruling.”

Perry: “Are we finished now? Bring the jury.” The jury entered and was seated. Perry continued,

In twenty-six years I’ve never seen a more competent, fair-minded jury. I recognize, I can see it, that there is a tension, there is a division in the jury as I am sure it will pass as you members go from its grip. I have before me under advisement a motion that counsel for defendants have made, and the court feels that as a matter of law that the plaintiffs and each of them has failed to sustain the burden of proof on the issues of evidence on every count remaining in the amended complaint.
    Accordingly, the defendants’ motion for a directed verdict in favor of each and every defendant against each and every plaintiff is granted, and judgment is entered here together with costs against each and every plaintiff and in favor of every defendant. The jury is hereby discharged from further duty. Each juror is free to talk about the case to the attorneys for the parties and to anyone.

Perry hurried off the bench. I felt a pain in my stomach like someone just kicked me. I glanced at Flint, shaking my head in disgust. He looked angrily at the bench, but the judge was gone. I was stunned. I had anticipated some type of jury verdict or even a hung jury. Instead Perry dismissed the case against the defendants without a jury decision and assessed costs against us. As if the ruling weren’t bad enough, we had to watch Coghlan and Volini laughing, getting congratulated, and shaking hands with their clients.

“Let’s get out of here,” I said, but first I had to say something to Florence Smith, our one black juror. She was walking from the jury box. When I called her name, she turned around.

“I was with you,” she said. “I would have held out forever.” “Thank you,” I said. “What you did was important.” And it was. A white juror heading for the door, who had looked uncomfortable during the trial, also came over and shook my and Flint’s hands. It turned out she and Ms. Smith were the jurors willing to vote our way.

In a small conference room off the hallway, we explained what happened to the Hamptons and Clarks. “Perry couldn’t do it with the jury, so he did it himself,” I told them.

“Is this the end of the road?” Iberia asked. As down as I was, I replied, “No way.”

Flint added the one bit of good news. “Since Perry decided it, the evidence will be considered favorably to us on appeal. We won’t have the burden of overcoming a jury verdict.”

“We owe Florence Smith a tribute,” I said. “If the jury had found for the defendants, we would have an almost impossible burden.” As soon as I said it, I realized the legal distinctions made little difference to our clients or hardly to us at that moment. They seemed insignificant next to the overwhelming fact that after seven years, our case had just been dismissed.

Iberia told me years later that she did not “see any hope for any of us.” She and Francis had missed one or more days of work every week for eighteen months to attend the trial. Now the judge had thrown out their son’s case. Iberia and Fannie both wore that expression of tired outrage, a familiarity with suffering that black people have had in America; a look that says, “I see what your justice system did again.” Herb Reid understood that look and said he and the NAACP were not giving up.

On the first floor, I told the press how Perry had made himself the jury, and Flint explained how absurd it was for Perry to dismiss a case on the grounds that there was insufficient evidence to go to the jury, while the jury itself was deadlocked. Montgomery said nothing. I could tell he blamed us for the verdict as much as the judge. He headed back to his office. Herb Reid came back with us to PLO. There we slumped down in the hard chairs of our conference room. For once, there was silence. In spite of the hope we conveyed to our clients, I felt we had hit rock bottom.

For two days I stayed home feeling terrible. The free time and walks outside I had longed for were not comforting. On Thursday, PLO lawyers gathered in our conference room. We were not a happy crowd. “Things could be worse,” Dennis said. “The jury could have acquitted the defendants.”

“That’s true if we ever get to appeal,” I said. “Perry is going to make us pay the defendants’ costs. This could be tens of thousands of dollars.”

“We’ve gotta appeal,” Flint interrupted. “The bastard can’t get away with this.”

“I’ll work on it,” Chick added. “I’ve already done a lot of the research.”

“And who’s gonna pay for the transcript we need to read and cite in our brief?” I asked.

“I’m sure it’s over thirty-five thousand pages.” Nobody answered.

“It’s gotta be done,” Dennis said. “We have too much evidence to let Perry win.”

“If we get the right appellate panel, we have a chance,” Flint perked up.

“Do you think Fred would quit?” someone threw out. We all knew the answer. That comment pulled me up. Fred wouldn’t have given up, so how could we, who were representing him and his legacy?

“Don’t mourn. Appeal.” Someone threw out, a takeoff on the union rallying cry, “Don’t mourn. Organize.” I had to laugh and declare the mourning period over.

“I’m in,” I said. “Let’s get that transcript and nail Perry’s ass.”

“One good thing,” Flint added. We get to consolidate our entire case in one appeal. There’s nothing left before Perry, thank goodness.” I could see he relished another shot at proving the FBI conspiracy.

It’s a truism that what appears to be our worst nightmare often turns out to be a blessing. So it was with Perry’s ruling. Had he not dismissed the shooters, we would have been left with another trial against them, still in front of him—a trial we would probably never win.

Before things got better they got much worse. First, Judge Perry ruled our clients must pay the defendants’ costs, consisting mostly of the time and expense of the FBI’s reproducing the documents it had hidden and even some transcript costs. Perry assessed their costs at one hundred thousand dollars. On top of that, he set an appeal bond of another hundred thousand, creating what appeared to be an insurmountable financial obstacle to prevent us from appealing his dismissal. Perry continued the sentencing on the pending contempt citations against Flint and me until after any appeal, reserving the right to incarcerate us later.

The final blow, the least expected, came by messenger from Jim Montgomery. It was a letter announcing that he would now be the sole attorney for Iberia Hampton, Deborah Johnson, Verlina Brewer, and Brenda Harris.

When we talked to the other plaintiffs, we found out what happened. Montgomery had told each of them he no longer wanted to work with us and that our tactics only led to infuriating the judge and prolonging litigation and would not result in winning the case either by way of settlement or trial. He implied he could negotiate a settlement if they would accept his exclusive representation, but he would also require that they sign a new fee agreement, raising the percentage of his contingency fee from one-third to 45 percent.

The letter from Montgomery was demoralizing. I understood why our strategy of confrontation did not look like it would bring success. Montgomery offered accommodation, which works in most civil cases, but I believed that our defendants would not settle until we gained the upper hand. For now they were riding high.

“Do you think Montgomery has been offered a deal if he separates from us?” I asked Flint and Dennis.

“I think he hopes he can cop a deal,” Dennis said. “But I don’t think there is one—not now, anyway.”

“Why would Coghlan and Volini want to settle now after they have a verdict? Their gravy train is guaranteed through the appeal and ten more hung juries,” Flint said.

“They’re certainly not going to settle until we get an appeal going, and right now that’s problematic,” Dennis added. “We have to get over the hurdle of the appeal bond.”