With the floor plan as our main exhibit, Flint and I set out to prove the raid was a COINTELPRO action planned and initiated by the FBI. If we could prove this, then the illegal goals and methods explicitly endorsed in the program would provide the necessary intent to show FBI participation in an illegal conspiracy. We also needed to get enough information on individual FBI personnel to add them as defendants, as we could not sue the FBI directly.
Our first federal deposition after O’Neal was Roy Mitchell. For two days in May 1975, Bill Bender, Flint, and I questioned Mitchell in downtown Chicago in an office larger than any of our cubicles, loaned to us by the Lawyers’ Committee for Civil Rights (LCCR). LCCR also had a copy machine, something PLO couldn’t afford, and which we needed to duplicate documents.
Mitchell came into the deposition room with Arnold Kanter, a young, clean-shaven, and overly earnest U.S. attorney who had suddenly replaced Sheldon Waxman. Agent Roy Mitchell looked like a marine recruiter. He was in his late thirties, had a straight jaw, and wore his light brown hair in a crew cut. He sat straight up in his chair during his deposition, as if at attention. He did his best to come off as a “Yes sir, no sir,” by-the-books kind of FBI agent. He presented a stark contrast to the freewheeling O’Neal, his informant.
Mitchell never offered information beyond what we asked for, yet he prided himself on his memory, part of his professional competence. So when we pinned him down and asked specific questions, we learned many of the details of his relationship with O’Neal as well as his role in initiating the raid.
Mitchell recruited O’Neal in 1968 while investigating an auto theft. In exchange for his testimony against the other car thieves, charges were dropped, and O’Neal became a paid informant. Several months later, after the relationship had lapsed, O’Neal was arrested for impersonating a federal officer by possessing phony FBI identification. Again Mitchell intervened, and soon thereafter he asked O’Neal to join the Black Panther Party and resume his informant status.
Mitchell claimed he gave no specific instructions to O’Neal as to how to act in the Party. Nevertheless, he admitted he was aware of O’Neal’s construction of an electric chair, his advocacy of violent and illegal acts, and his obtaining of weapons for the Panthers. COINTELPRO memos directed agents to use provocateurs to incite Panther members to violence, but Mitchell claimed his work with O’Neal “had nothing to do with COINTELPRO.” Judge Perry’s refusal to enforce our subpoenas for COINTELPRO documents made it impossible to challenge his assertion.
Nevertheless, Mitchell provided a critical link in our conspiracy when he admitted he shared information with Richard Jalovec, the supervisor of Hanrahan’s Special Prosecutions Unit, about the Panthers, including the fact that O’Neal was working for him as an informant. Sharing an informant’s identity was not routinely done and was a strong indication of the regular communication between Mitchell and Jalovec as well as between the FBI and Hanrahan’s office.
Conspirators seldom admit planning illegal acts together. Usually the most you can do to prove a conspiracy is show regular contacts and a common purpose, then ask the jury to draw the necessary inferences. Mitchell made our case substantially stronger by acknowledging his close ties and regular meetings with Jalovec.
Mitchell also testified that he obtained a floor plan from O’Neal of the Panther office in June 1969, which led to the June 4 raid. At the outset, the FBI called the Panther office and got the Panthers to agree to not resist. After arresting everyone inside, the FBI trashed Panther headquarters and stole their records. Mitchell was in radio contact with Marlin Johnson as the trashing went on.
Mitchell also testified that he regularly kept his superiors, Robert Piper, the head of the Racial Matters Squad, and Marlin Johnson, the Special Agent in Charge (SAC) of the Chicago FBI office, informed about Fred Hampton and the Panthers through conversations and memos.
In early October 1969, Mitchell wrote a memo to SAC Johnson and FBI headquarters that said Hampton and Deborah Johnson had rented the apartment at 2337 West Monroe. In early November, Mitchell learned that Hampton had visited the West Coast, and reported to Piper and Johnson that Fred was about to become part of the national leadership of the Black Panther Party. The more Mitchell implicated Piper and Johnson, the easier it would be to show they were part of the conspiracy.
“Mitchell and his bosses certainly understood that a national role would push Fred’s charisma and influence beyond Chicago,” I said to Flint at the break.
“And make him the type of leader, or ‘black messiah,’ Hoover ordered all the FBI offices to target,” Flint agreed.
“I believe Mitchell’s Chicago and D.C. superiors were following the information he was getting from O’Neal about Fred very closely and were giving Mitchell instructions,” Bill Bender added.
Mitchell’s supervisors had approved O’Neal receiving three hundred dollars per month, a relatively large payment for informants at that time, as well as additional payments when his information was particularly useful. Every time Bender asked Mitchell about the parallel between his and O’Neal’s activities and the mandates of the Counterintelligence Program, Mitchell repeated in robotic fashion, “The raid had nothing to do with COINTELPRO.” On the instruction of U.S. Attorney Kanter, he would then refuse to answer any more questions about COINTELPRO.
Our questioning of Mitchell proceeded chronologically up to the middle of November 1969. I jotted down notes, waiting to confront him with the floor plan and trying to anticipate how he would explain its evolution. Up to this point Mitchell had remained unruffled.
As we approached the days leading up to the raid, Mitchell took more time to answer the questions, and he consulted with his attorney, Kanter, more frequently. He testified that on the evening of November 13, 1969, the day Chicago police officers John Gilhooly and Frank Rappaport were slain in a gunfight with ex-Panther Jake Winters, he met with O’Neal at the Golden Torch restaurant in downtown Chicago. That day the newspapers covered the police deaths with banner headlines, and it was the lead story on all the TV network stations. Mitchell had to know that evening when he met with O’Neal that the police and state’s attorney would be anxious to respond to the police killings and get revenge.
Mitchell said he brought graphic pictures of the slain officers to the meeting and showed them to O’Neal, who reported that the Panthers were naming the medical clinic after Jake Winters.
O’Neal and Mitchell met six days later, on November 19, again at the Golden Torch restaurant. There, while sitting at a table, they constructed the floor plan. Mitchell claimed he had not asked O’Neal to get the floor plan and “couldn’t recall” whether he or O’Neal suggested making one. I sat there staring at Mitchell, knowing that there was no way that such an orderly and detail-conscious person would not remember who suggested the floor plan, or that O’Neal could have proposed it. (O’Neal wasn’t going to initiate the raid.)
Mitchell claimed it was the newly acquired information from O’Neal on November 19—that there were weapons at 2337—that caused him to construct the sketch and ultimately to disseminate the “information in the floor plan” to the Cook County State’s Attorney’s Office. If he had admitted ordering the floor plan six days earlier, before he said he learned about weapons in the apartment, it would have been tantamount to admitting the weapons were merely the pretext for the raid. The extremely detailed nature of the floor plan, however, disproved that it could have been constructed spontaneously from memory by O’Neal. He clearly had been ordered to focus on the layout of the apartment after the deaths of Gilhooly and Rappaport.
Mitchell’s opportunistic seizing of the November 13 shootout to initiate a raid plan for the local police employed a tactic very similar to the stated COINTELPRO objective of using local law enforcement to harass and confront the Panthers. I again asked Mitchell about his knowledge of COINTELPRO and its objectives. Following the advice of his lawyer, Mitchell refused to answer, repeating, “COINTELPRO had nothing to do with the raid.”
“That was not my question, Mr. Mitchell. What did you know about COINTELPRO?” I still got the same answer, but Mitchell was becoming restless.
“He’s a lying sack of shit,” I said to Flint in the bathroom at the break, after checking the stalls to make sure no one else was present. “And he tries to come across as the straight guy just doing his job. Maybe that’s what’s so maddening. He never expresses any emotion, or even suggests the ability to be so manipulative.”
“But he doesn’t look good,” Flint answered. “As Fred said, when you lie, ‘you come up with answers that don’t answer and with explanations that don’t explain.’ His denials of COINTELPRO playing a role look flaky.”
Mitchell testified that O’Neal told him on November 19 that among the weapons in the apartment was a sawed-off shotgun and a stolen police riot shotgun. He passed this information on to the Gang Intelligence Unit at a face-to-face meeting that very day. He said the GIU then scheduled a raid for November 25.
This contradicted Mitchell’s November 21 memorandum, which stated that all these “weapons were allegedly purchased on legal [emphasis added] Illinois State Gun Registration Cards issued to female BPP members who have never been arrested.”
When I asked Mitchell why he had not included the information about the two illegal weapons in his memo to his superiors, he replied it was an “oversight.”
Oversight, my ass, I thought. This guy does not have oversights, certainly not involving such critical information. Here was another moment when Mitchell’s meticulous manner and recall of details undermined the credibility of his testimony.
As my probing continued, the slight talkativeness with which Mitchell had described his meetings with O’Neal disappeared. His answers became sharper. He began to shift in his chair.
Mitchell testified that the Gang Intelligence Unit had originally planned a raid based on the information he provided them but had called it off when he advised them the weapons were removed. He then told the State’s Attorney’s Office the weapons had been returned, but he never told the GIU this.
My hunch then was that the FBI preferred the raid be done by Hanrahan’s office; perhaps because the GIU was suspicious they were being set up to do the FBI’s dirty work. They may have questioned why Mitchell passed his information to them rather than sending it to the ATF. Perhaps Mitchell picked up on their suspicions and felt Hanrahan’s Special Prosecution Unit would be more anxious to do the raid and ask fewer questions. He no doubt realized Hanrahan would like to get credit for a Panther raid.
Mitchell admitted that he placed the only copy of the floor plan in the O’Neal confidential informant file, to which only he, Piper, and Johnson had access. Copies of other documents containing significant information from O’Neal about Fred Hampton were routed at least into the Fred Hampton and the Black Panther files in Chicago. Mitchell couldn’t explain why only one copy of this document was made, but he admitted this made it possible to destroy the floor plan without leaving a trace that it ever existed. I believed that Mitchell was scheming from November 13 not only how to provoke a raid but how to hide the FBI’s role in initiating it. He might have succeeded, but for Sheldon Waxman.
In an interview years later over lunch, Waxman, now a former U.S. attorney, told me with a very satisfied expression, “They [the FBI Agents who brought Waxman the diagram of 2337] looked at me as if to say, ‘you know what to do with this.’ But I didn’t want to take the weight for them and destroy it. They were pissed when I turned the document over to you guys. After that my days in the U.S. Attorney’s Office were numbered.”
During the next break I asked Flint what he thought of Mitchell’s credibility. It’s difficult when you’re asking the questions to comprehend the full effect of the answers.
“He looks totally ridiculous telling Hanrahan the weapons were illegal and writing a memo saying they weren’t. It also looks like the raid was a COINTELPRO action to me, despite his lame denial,” Flint surmised.
After we learned of the FBI floor plan, we wanted to add O’Neal and his FBI controls as defendants so they would go to trial with Hanrahan. Conspirators belong together, particularly in court, and maybe by now Hanrahan was beginning to realize he had been set up. Perhaps he’d join us in pointing a finger at the FBI. We were actually shooting (figuratively of course) for adding Hoover as a defendant, and attorney general John Mitchell, who was overseeing the operation of the government’s illegal intelligence operation.
We didn’t know how far we could get up the chain of command, but we were aiming high. Our conspiracy, like the one that resulted in the Watergate break-in and the burglary of Ellsberg’s psychiatrist’s office, started at the top. The cover-up reached to the top as well. The question was whether Perry would allow us the documents to learn what Hoover and the attorney general knew about Fred Hampton and the plan to kill him. Meanwhile, I had to finish Mitchell’s deposition.
John Coghlan, Groth’s attorney, was shouting something at Mitchell and his lawyer when Flint and I reentered the deposition room. He stopped short when he saw us. Coghlan’s face was more flushed than usual, and his jaw was tense. He was not wearing his cocky smile. Camillo Volini, the other lawyer for the cops, was frowning and shuffling his oversized body in his chair.
Earlier, I had hardly noticed Coghlan and Volini. Because Mitchell was not their client, they couldn’t direct him to refuse to answer questions. Coghlan was accustomed to running the show and wasn’t pleased that Mitchell admitted such a close relationship with Jalovec.
After the break, Mitchell testified that he had talked to Jalovec, Hanrahan’s assistant, “five to seven times” between November 26 and December 2. The subject matter of all these conversations was Fred Hampton’s daily movements, his apartment, and the fact that weapons were being stored there. Mitchell’s communications with Jalovec culminated in a face-to-face meeting on December 2 with both Jalovec and Sergeant Groth at the Cook County State’s Attorney’s Office.
Coghlan and Volini remained uncharacteristically quiet as I continued questioning Mitchell. Now I understood why they had been so riled up earlier. They knew Mitchell was directly contradicting their clients. Jalovec had never admitted continuous collaboration with Mitchell and had denied any face-to-face meeting with him before December 4. Groth had claimed he’d never talked to Mitchell, not even on the phone. Trying to appear unconcerned, Coghlan scratched the inside of his ear with a pencil and looked toward the ceiling. Volini attempted a look of boredom as he rocked back and forth in his chair, but a discernible frown made its way across his face.
Mitchell testified that at their half-hour meeting on December 2 at Hanrahan’s office, he again told Jalovec and Groth about the large cache of weapons at 2337. He also told them for the first time that there was a sawed-off shotgun and a stolen police riot shotgun in the apartment. Mitchell specifically informed Groth and Jalovec the apartment would be vacant on Monday, Wednesday, and Friday evenings when Fred led political education classes.
I asked Mitchell if he had shown Jalovec and Groth anything. Volini’s chair stopped rocking. Mitchell didn’t hesitate. He testified that he brought and showed O’Neal’s floor plan to the two men. I went through the details of the plan, asking him if he had specifically mentioned particular items. “I may have pointed out the bed where Hampton would be sleeping,” he admitted. The “may have” was the best I was going to get, but it was all I needed to argue that the raiders knew exactly where to go.
Neither Groth nor Jalovec had ever admitted to seeing O’Neal’s floor plan, although Mitchell had admitted the floor plan would be “invaluable” for anyone conducting a raid. For five years the FBI and Hanrahan’s office had maintained the fiction that it was a call to Groth from his informant that had provided the information for the raid. Groth had testified numerous times that Jalovec’s information from the FBI came later, was secondary, did not include a floor plan, and had merely corroborated the data from his own informant. Within fifteen minutes Mitchell had totally contradicted Groth and Jalovec’s accounts.
Every lawyer has a way of disguising his chagrin when a witness gives testimony damaging to his case. I look down at my legal pad to avoid eye contact with the jury or the other lawyers and pretend to be writing away. Coghlan had gone to his other ear with his pencil, looking distant and inscrutable. Volini sat there with a blank stare, rocking.
Mitchell seemed to enjoy describing his critical communications with Hanrahan’s office, taking credit for what followed, while suggesting Groth’s claim of having his own informant was a lie. Mitchell wanted to get credit for his work setting up the raid. He avoided eye contact with Coghlan and Volini during this questioning. I thought we had gotten just about everything we could expect from Mitchell. But there was more.
On the morning of December 4, Johnson and Piper sent Mitchell to Hanrahan’s office to “determine additional information about the raid.” Mitchell testified that he met with Jalovec and Hanrahan in the library, where the Panther weapons had been put on display. In just a few minutes Hanrahan would hold his first press conference there. It was about 10:30 A.M. and already Jalovec and Hanrahan had put together their story, which they repeated to Mitchell: the Panthers opened fire on the unsuspecting police, they continued firing throughout the ordeal, and Hampton himself had fired at the police from his rear bedroom.
“What else did they tell you at that meeting?” I asked.
Coghlan tried to interrupt, but I instructed Mitchell to answer.
“Jalovec asked me if I minded if it got out that I was the source for the raid.”
If he was “the” source, there wasn’t any other. Mitchell was not careless with his words. I couldn’t avoid turning and winking at Flint. Coghlan and Volini glanced at each other and quickly looked away. Jalovec’s acknowledgment that Mitchell’s information alone had led to the raid indicated that Jalovec and Groth were guilty of perjury. In his affidavit for the search warrant, prepared by Jalovec, Groth swore under oath that he relied on information from his own informant.
The creation of an informant for Groth was necessary because if Groth had told the truth, that his information came from the FBI, no judge could have legally signed the warrant. A search warrant can only be issued on probable cause. This was then interpreted by the Supreme Court to mean that law enforcement officers seeking warrants must swear that they are either an eyewitness to the information they are reporting or they have a reliable informant who saw it and reported it directly to them. If Groth had told the truth and swore he got his information from Jalovec who got it from Mitchell who got it from O’Neal, it would have been triple hearsay. He and Jalovec knew such an affidavit, a truthful one, would have been insufficient to obtain a search warrant.
Jalovec told Mitchell he did not mind if it got out that the FBI was the source of information for the raid. Yet for five years, and through two grand jury investigations and Hanrahan’s criminal trial, the FBI never admitted this. In fact, Hanrahan, Jalovec, and Groth had repeatedly denied it under oath.
“Why have you never told anyone that the FBI was the source for the raid?” I continued.
“No one ever asked me,” Mitchell explained, incredibly.
At the next break Flint and I found an empty room, closed the door, and did high fives. “Mitchell’s killing them,” Flint congratulated me. “I never dreamed he would contradict Jalovec and Groth so much.”
“He wants to show off. He’s had to hide his role for so long. He can barely contain himself,” I agreed, smiling.
“That’s definitely part of it, but I think what he’s testifying to must also be laid out in FBI documents. He’s chosen to go with what’s in the files rather than what Jalovec and Groth want. We’ve got to get the FBI memos,” Flint insisted.
We went back into the deposition room with a bit of a swagger. I couldn’t help shooting Coghlan a knowing glance. “Informant, indeed,” I whispered. He and Groth were manipulating the claim of informant’s privilege not to protect an informant but to protect Groth from perjury.
Coghlan put on his pugnacious grin, which I took to mean, “You may be right, but you’ll never prove it.”
Mitchell had revealed a lot, but he continued to deny the raid had any connection to COINTELPRO. He also refused to produce the FBI documents showing payments to O’Neal. Instead, he gave us an affidavit showing how much he paid O’Neal. Flint and I suspected the payment documents themselves would be more revealing, perhaps containing an evaluation of O’Neal and summaries of the information he provided. We had to rest on speculation. Perry continued to uphold their objections to payment records, but at some point the dam had to crack open.
In 1974, PLO was in its fifth year. Our clients included the Attica Brothers, Puerto Rican Independentistas, the Hampton plaintiffs, and the antiwar movement. Arthur Kinoy said that movement lawyers had to be twice as good because we started with the judicial system against us. Charles Garry, the Panther lawyer in San Francisco, said he was a better lawyer than Perry Mason because Mason’s clients were innocent. Our cases were never easy, whether our clients were innocent or not.
I worked to recruit other lawyers and law students for the movement through the National Lawyers Guild, which experienced a great influx of young, progressive, and sometimes radical lawyers and legal workers in the late 1960s and 1970s. We started the Guild Anti–Police Brutality Project in Chicago in 1972, and Flint and I met Peter Schmiedel there. He joined our office the next year.
Later, we obtained our own Chicago police “red squad” (intelligence division) files, which showed the police had sent an undercover recruit (under the false name Kostro, ironically) into the Anti–Police Brutality Project. We had wondered what happened to “that Castro guy,” as he’d introduced himself. The files showed he had taken quite thorough notes and regularly reported on Flint’s and my activities there. I’ve never known whether the police were looking for an inside view of our Hampton strategy or just a clearer profile of us.
By 1974, I had a good bit of court experience, but it was mostly in criminal cases. Flint had less, having passed the bar two years earlier. We were already spending half our time on the Hampton civil case. Dennis and Michael were spending two-thirds of their time in Buffalo working with other lawyers defending the sixty indicted Attica Brothers.
This left Peter Schmiedel and Mara Siegel, who had recently joined the office, as our only other full-time Chicago lawyers. Peter Schmiedel, tall and handsome with premature salt- and-pepper hair, was just getting used to going to court. He had already taken some assignments researching and writing motions on the Hampton case under Flint’s tutelage. Mara continued to be the fire-eater she had been when Mzizi and I met her at Attica. Her style was flamboyant, and she was the first person I remember wearing a nose ring. Mara had a robust and sometimes crude sense of humor. She kept us men, whom she frequently referred to as “the boys,” on our toes by chiding us on our sexism. Mara liked going to court and was getting more confident and effective by the day. (She removed the nose ring after she passed the bar.) Pat Handlin, more conventional and sober than Mara, came to Chicago after graduating from SIU and became a legal worker in the office. At SIU she had been an antiwar student activist and a strong supporter of the Panther defendants in the Carbondale trial. She later started a prison project supporting women prisoners and jailhouse lawyers at Dwight Correctional Center.