It was August 4, 1973, already a warm morning and the office air conditioner was barely holding its own against the muggy heat. I was in my cubicle when I heard Flint yell from the front of the office, “We won!” I ran out to find him talking on the phone by the front desk. He put the receiver down to his waist. “It’s the Tribune. The Seventh Circuit just handed down their decision. They reversed Perry. We’re back in court.”
He picked up the phone. “As soon as we get the opinion, we’ll make a comment.” By this time a crowd had formed.
“Take that, Judge Perry,” I said. “You can’t get rid of us that easy.”
Forty-five minutes later we assembled again. “Here it is,” Flint said, reading from the unanimous opinion. “The state’s attorney’s alleged participation in the planning and execution of a raid of this character has no greater claim to complete immunity than activities of police officers allegedly acting under his direction.”
The Seventh Circuit reinstated our case against all the cover-up people too. They found that as long as we alleged the conspiracy to hide the facts prolonged the prosecution, they are legitimate defendants. The decision gave us new life. We could confront the defendants in depositions and at trial and probe O’Neal about his and the FBI’s role. One problem remained. The court refused to get rid of Perry. We would be back before the cantankerous old man with the spotted hands.
“At least they are ordering Perry to let our case go to the jury, not dismiss it,” Flint said. “I hope he listens to them, ‘cause he sure don’t listen to us.”
“I hope this ain’t a Pyrrhic victory,” someone said. “Perry may be down, but he’s not out.”
We decided to go after O’Neal first. We knew what the raiders were going to say, but we didn’t know what his story would be. We needed to learn how deeply the FBI was involved. And so we began the torturous process called discovery to find out the FBI’s role in the raid.
Discovery in federal civil cases is different from criminal cases, where neither side has the opportunity to depose the other side’s witnesses. In a civil case every witness is deposed (questioned under oath in front of a court reporter), and there are not supposed to be any surprises at trial. At a deposition you are allowed to ask a witness anything that might lead to evidence, even if the answer itself would be irrelevant or inadmissible at trial. Thus, the scope of questioning is quite broad.
The thoroughness allowed in a deposition permits you to explore all the information and opinions the witness has. If it is done carefully and you have anticipated every way the witness might try to hurt you, then you should not be surprised by their answers at trial. You can also avoid asking the questions that lead to answers you don’t want the jury to hear. The courts are supposed to assure full disclosure. The premium is on preparation. Before trial both sides are supposed to know all the evidence the other side has.
Our plan was simple. We would subpoena the FBI for all the documents that showed the FBI’s involvement in the raid. The first and most obvious connection to the FBI was O’Neal. In October, two months after our case was reinstated, we subpoenaed him to a deposition and subpoenaed the FBI record keeper in Chicago for documents concerning the raid.
The response was a motion to quash the document subpoena. Sheldon Waxman, the U.S. attorney representing the FBI, also resisted complying with our subpoena, claiming O’Neal was no longer in government custody and his identity might be jeopardized if he appeared, even though we had agreed not to ask him his current name and address.
Perry ordered Waxman to produce O’Neal but then reversed himself when Waxman refused to comply. We reissued the subpoena several times, but Perry refused to enforce it, although it was very likely O’Neal had information relevant to the planning and perhaps the execution of the raid. Perry had no real legal basis for denying us access to O’Neal, but protecting the FBI was an instinct that ran deep for Perry. Flint, who prepared the motions to compel after the government refused to produce either documents or O’Neal, would return to the office frustrated and angry but always with the will to continue. A few days after being turned down, a new, sharply worded motion to enforce the subpoenas would appear bearing his signature.
Perry seemed as resolute as Flint, but public pressure was building to interrogate O’Neal. The press was hungry for information on the informant who had sent Stanley Robinson to prison for life and who had infiltrated the Black Panthers. Perry didn’t like to buck the press. The NAACP report suggesting Fred was probably drugged added to the public sentiment to uncover O’Neal and the FBI’s role in the raid. Locally, Jesse Jackson focused on the FBI and the drugging in demanding another investigation, while Roy Wilkins and Ramsey Clark echoed his demands nationally.
At every court date, we characterized the government’s refusal to produce O’Neal as a “cover-up,” which it was. The press picked up on our characterization, and newspaper editorials echoed our demand to expose the FBI role.
In January 1974, after six months of wrangling, U.S. Attorney Waxman summoned us to Perry’s courtroom for an unscheduled court date. When the case was called, Waxman stepped up to the bench. “We’ve agreed to produce O’Neal for a deposition,” he announced. No reason was given. Perry frowned and shook his head. He’d gone out on a limb to protect the FBI and now it was yielding to public pressure. “The government will inform counsel of the date and location of the deposition shortly,” Waxman continued. “We want this information kept under protective order for O’Neal’s safety.”
“We’ll agree,” I blurted. I looked over and Waxman gave me a nod. I wasn’t completely surprised. Waxman was the garrulous type and had given me the impression he did not like his job, which mostly involved fighting off our requests for evidence connecting the FBI to the raid. Still, the decision to produce O’Neal was probably made at a higher level.
Meanwhile, Waxman claimed the FBI’s record keeper could not locate any FBI files about O’Neal or the raid. We wanted to question O’Neal after we had the documents, but we didn’t want to miss the opportunity to depose him. We reluctantly agreed to take O’Neal’s deposition without the FBI reports. Shortly thereafter we got a call from Waxman directing us to be at the U.S. Attorney’s Office at the Federal Building in Detroit on January 12.
We all wanted a piece of O’Neal but we decided that Bill Bender would lead off questioning, and Dennis and I would follow. Flint, just recently admitted to the bar, would help on preparation and slip us questions if we missed something.
“It’s going to be strange seeing him now, knowing he was an informant,” I said, as we rode the elevator to the U.S. Attorney’s Office in Detroit’s Federal Building. “We knew him, or thought we knew him, pretty well.”
Bender had a full goatee, dressed in suit and tie, and showed the confidence in court of the legal expert he was. Bill was only a little older than me but seemed much more adult and experienced. Bill had briefed and argued many civil rights cases. He was married to Rita Schwerner, widow of slain civil rights worker Michael Schwerner.
“I know you guys feel he chumped you,” Bender said. “But he’ll be more forthcoming if we’re not too hostile.”
“We won’t attack him, at least not physically,” Dennis said. “I just want to see what makes him tick.”
“Bill, I don’t think I can shake his hand,” I said. “Is that all right? Strangely enough I still believe O’Neal admired Fred. He told me in almost every conversation I had with him after Fred’s death how much he respected Fred and how the Panthers went downhill after he was killed. I don’t think he was just making it up.”
“We don’t know what he made up,” Dennis reminded me. “How ‘bout those tears after Fred was killed. O’Neal was inconsolable.”
“Maybe we’ll see the real O’Neal, today,” I said, “if there is one.”
We checked in at the U.S. Attorney’s Office and were led to a small windowless room, somewhere in the bowels of Detroit’s Federal Courthouse. When we entered, O’Neal was sitting at a table with Waxman, Volini, and Joe Witkowski, Coghlan’s young associate. A court reporter had set up his stenographic machine at the end.
Dressed in a tweed sport coat and tie, O’Neal turned toward us but did not stand up. His expression was amazingly relaxed. “Hello, Dennis, Jeff, Flint. How are you guys doing?” he asked, as if nothing had changed. To my relief he did not offer his hand.
“Hello, Bill,” Dennis nodded his head.
“Long time,” I said, as neutral as possible. “This is Bill Bender. He’ll begin the questioning.
Bill Bender nodded also but didn’t offer his hand. “Let’s begin,” he said.
O’Neal testified that he joined the Panthers in 1968 at the request of FBI Agent Roy Mitchell. Mitchell paid him one hundred dollars per week at the outset. He became Fred and Rush’s bodyguard and ultimately chief of security. His job was “ferreting out” informers and making sure the Panthers had their weapons in working order. “From March 1969 on,” he said, “guns weren’t too much of an issue because he [Mitchell] knew they had a lot of guns. It wasn’t that important unless a trainload of guns or something came in, and that never happened.” O’Neal’s testimony conflicted sharply with Jalovec and Groth, who claimed it was the sudden appearance of guns at 2337 that led to the raid.
O’Neal testified that Mitchell had been interested in Fred’s apartment as soon as Fred moved in and O’Neal told him who lived there. His tone was nonchalant, even when he described being in Fred’s apartment the night of the raid. He calmly denied drugging Fred but admitted Fred never took drugs on his own. Finally, Bender asked him how he felt after he learned Fred was killed.
O’Neal shrugged his shoulders and responded coolly: “I knew another agency had made the raid, so I wasn’t concerned with it.” His answer was a little too glib to believe. O’Neal said he was “surprised” when the raid happened, but when Mitchell assured him he had not passed O’Neal’s information on to the police, he was satisfied. O’Neal was no dummy, and I doubted that Mitchell could have so easily convinced him that his information was not used.
O’Neal displayed no sense of guilt or responsibility or even satisfaction. When we asked him what he thought of Fred and the Panthers, he answered, “I respected them, I respected what they were doing. I respected them, period.” I had expected O’Neal to denounce Fred at the deposition to justify his informing on him. But his endorsement was worse, more outrageous. I wondered who this moral eunuch was who could betray Fred for money and then praise him.
Without FBI reports documenting his activities as an informant, it was difficult for any of us to challenge O’Neal’s general assertions and often vague memory. I left the deposition frustrated. We had not obtained a clear picture of how O’Neal and his informing fit into the raid or COINTELPRO. He did not come across as either the boasting beast or the remorseful penitent. He had successfully walked the line.
After the deposition Flint wrote an article for our local National Lawyers Guild paper irreverently titled “Up Against the Bench,” which ended, “There are too many unanswered questions about the government’s actions against the Black Panthers, specifically their involvement in the December 4 raid…. For in an event such as the murder of Fred Hampton lies the true meaning of Watergate.”
Fred’s brother Bill, Fred, sister Dee Dee circa 1950.
Birthday gathering for Fred’s uncle Roosevelt White. Seated at the table are Roosevelt, Fred, and brother Bill; behind Fred is sister Dee Dee, mother Iberia, Francis, and Iberia’s brothers, sisters, and spouses.
Fred and his mother, Iberia, 1957.
Fred Hampton and friend Marvin Carter, around age ten.
Fred Hampton’s twenty-first birthday party.
Ralph Abernathy, Fred Hampton, and Jesse Jackson at the Southern Christian Leadership Conference office in 1967.
Hoover’s outline of COINTELPRO objectives, including prevention of the “rise of a ‘messiah’” in the black nationalist movement.
Fred Hampton, 1969.
Bobby Rush and Fred Hampton, Chicago, 1969.
Fred Hampton in the Black Panther office, 1969.
Fred Hampton presiding at a Black Panther wedding, Chicago, August 1969.
Black Panthers free breakfast program, Chicago, 1969.
Black Panthers free breakfast program, Chicago, 1969.
Aftermath of October 1969 police raid on the Black Panthers’ headquarters.
FBI’s “anonymous” letter intended to ignite violence against the Black Panthers within the black community.
Street door to the Black Panthers’ headquarters after the October 1969 police raid.
Chicago police removing Fred Hampton’s body from his apartment.
Enhanced FBI floor plan provided to police raiders showing where Hampton slept.
Fred Hampton’s bedroom after his assassination.
Nail heads (circled) claimed by state’s attorney to be bullet holes and proof of Panther firing.
Line of people waiting to pay their last respects to Fred Hampton at the Rayner Funeral Home, Chicago, 1969.
Fred Hampton, Rayner Funeral Home, Chicago, 1969.
FBI request for a bonus for the informant providing the information leading to the raid.
The author and lawyer Flint Taylor in front of Black Panther headquarters, 1979.
The author; Fred Hampton’s mother, Iberia Hampton; and Fred’s brother Bill Hampton, 2009.