There was a strange hush in Epton’s courtroom on May 8 when the Panther defendants returned. “They’ve got to produce the names of informants today,” Skip said as we entered. He had his yellow pad out with his argument outlined in case the state refused to disclose the informants. Judge Epton was finishing his morning call, and nodded to us that he would call our case shortly. Our clients sat nervously in the front row of the spectator section.
Nick Motherway, one of Hanrahan’s top assistants, came out from the rear and stood next to the court stenographer. One of the defense lawyers approached him, but he waved him off. “People v. Deborah Johnson, et al.,” the clerk announced. Seven defendants and seven defense lawyers stood up and we walked forward to stand in front of the bench. The clerk called each defendant by name and each answered “here.” Motherway addressed the court: “Because our evidence, gathered by our police, may prevent us from meeting standards satisfying judicial standards of proof, we are compelled to dismiss the indictment.”
“Motion granted,” Epton responded, in a perfunctory tone. Clearly, he had been forewarned.
We looked at each other and at our clients, too stunned to smile. A few seconds later Jim Montgomery broke the silence: “On behalf of my client Deborah Johnson, I hereby answer ready for trial and demand trial.” This trial demand would prevent the state’s attorney from ever reinstating the case, at least after the 160-day speedy trial period had run. Each of the defense lawyers made a similar trial demand for his or her own client. Epton’s clerk then declared, “Court is in recess.”
We turned and walked through the court to the hallway, followed by a slew of spectators yelling “Indict Hanrahan.” We and our clients huddled in one corner of the tiled vestibule. “After all his huffing and puffing about the Panthers’ attacks on the police, Hanrahan has dropped the charges,” Skip said triumphantly, a smile emerging.
“Maybe he didn’t want to have to expose the informant,” Dennis said. “Or maybe the federal grand jury pressured him into dismissing the cases.”
“It’s not what Motherway said,” Warren Wolfson chimed in. “The state frequently gathers evidence improperly. There’s something else.”
“Don’t look a gift horse in the mouth,” chimed in Eugene Pincham, the most senior and prominent lawyer among us.
By this time the press was begging us to go downstairs for a comment in front of the TV cameras. We descended to the first floor. The defense lawyers said the charges were dismissed because the Panthers were innocent and the evidence proved it. Skip added, “The same evidence shows Hanrahan and the raiders are the ones who should be indicted for murder.”
It was true: the physical evidence showed the survivors’ innocence, but it would be another five years before we found why the indictments were dropped so abruptly. The same day our clients charges were dismissed, they were handed subpoenas to appear in front of the federal grand jury the following Tuesday. Failure to appear would be contempt of court and they could be jailed until they complied. But the Panthers were hesitant to give the federal grand jury credibility by testifying before it.
Milton Branch, a black assistant U.S. attorney from Denver, who was on loan to the federal grand jury, urged us to have our clients participate. But we distrusted the federal government. The head of Chicago’s FBI field office, Marlin Johnson, had personally led the FBI raid on the Panther office the previous June. He gave the orders as the FBI agents tore up the office. FBI chief J. Edgar Hoover had publicly declared the Panthers to be “the greatest threat to the internal security of the country,” and John Mitchell, the attorney general, put the Panthers on his hit list and determined they posed a sufficient enough threat to justify wiretapping them without warrants.
We got together with the survivors to weigh the options. I still had some hope the grand jury might indict Hanrahan and the raiders. I knew if the Panthers refused to testify, the government would blame us for failing to indict Hanrahan. As we reviewed and discussed the history, it seemed that no matter what we did, indictments by this grand jury were unlikely.
At the meeting, Skip repeated what Jay Miller, head of the ACLU in Chicago had told him about Jerris Leonard, the deputy attorney general in charge of the federal grand jury: “Jerris Leonard told me to my face that Bobby Seale was added as a defendant in the Conspiracy case, because ‘The Panthers are a bunch of hoodlums,’ and ‘We’ve got to get them.’ Miller would not have made this up.” We told the survivors what we knew about some of the FBI actions against the Panthers, which included its raids on Panther offices across the country.
Dennis brought up the federal grand jury in San Francisco that was investigating the Panthers. It was still sitting. “The black U.S. attorney in San Francisco, Cecil Poole, charged that their objectives were ‘to get the Panthers and harassment.’”
We were in a no-win situation. If the survivors testified and no indictments were returned, which was likely, then the grand jury would have appeared to have weighed all the evidence and found no wrongdoing. If they refused to testify, then the grand jury would blame them for their failure to return indictments, even though the survivors’ testimony at the people’s inquest in March was available to the grand jury.
On Tuesday, May 12, the day the subpoenas were returnable, Rush held a press conference announcing the survivors’ decision, with Skip and Doc by his side. He told the press “It has been our experience that grand juries, including the one that indicted the seven survivors and refused to indict the police who took part in the raid, are illegal shams used to excuse illegal actions of the police. We want to testify, but we feel the grand jury is rigged.” He also pointed out that there were only two blacks on the twenty-three-member federal grand jury.
Three days later, a TV reporter called Skip at PLO to say the federal grand jury had just issued a 132-page report and no indictments. We huddled around Skip after he yelled the news into our open cubicles. “He wants to know if we have ever heard of a report with no criminal charges,” Skip inquired. We shook our heads, disgusted. Skip told the reporter, “No, they’re supposed to return indictments or do nothing.”
When Skip hung up, Dennis said, “I’d bet the purpose of this report was to justify their failure to indict.”
Someone went to the Dirksen Federal Building and returned with four copies of the official-looking, blue, bound report and a copy of the Sun-Times. The headlines were “U.S. Jurors Assail Hanrahan’s Raiders,” with the subheadings: “Rip Panthers, Crime Lab, IID; Only One Shot Fired at Police.” Flint, Dennis, Skip, and I each took copies of our report to our cubicles to read before we reconvened in Skip’s office.
The report began with an introduction citing the “nearly 100” witnesses called and “over 130 exhibits” examined, whereby its authors claimed a thorough and exhaustive investigation. Robert Zimmers, the FBI’s firearms expert, testified that the two shotgun shells, which the Chicago Police Crime Lab had positively identified as coming from Brenda’s shotgun, were fired from Officer Ciszewski’s shotgun. The Chicago Crime Lab must have fabricated their test results to fit the officers’ stories.
Zimmers also concluded from the configurations of the bullet holes, as well as the bullet fragments and shell casings recovered, that there was only one Panther shot fired and it came from the gun held by Mark Clark. The police fired at least ninety times.
A third autopsy, performed by a new pathologist working for the federal grand jury, confirmed that the fatal shots were fired into the top of Fred’s head downward from right to left with roughly parallel trajectories. Other than these bullet holes, the only physical marks on Fred were a bullet found imbedded in the exterior of his shoulder and a graze wound in his leg. The exact caliber of the bullets that went through Fred’s head could not be determined from the holes but were consistent with the diameters of the .38-caliber bullets fired by Carmody and also with the .30 carbine bullets fired by Gloves Davis. Nevertheless, the federal prosecutors never sought to determine who fired the fatal shots, where they were fired from, or whether they were fired deliberately to murder Fred.
The chemist advising the grand jury disputed our chemist, Dr. Berman’s, findings that Fred’s blood contained Seconal. He testified that the blood samples he examined showed no traces of Seconal and that the drug would not have dissipated between Berman’s testing and his own, done a month later, after Fred’s body was exhumed in Louisiana. But he could not offer an explanation why the Seconal showed up both times in her tests.
In spite of the physical evidence, the grand jury report blamed the deaths and injuries on Panther provocations and hostility toward the police, as much as on the actions of the police themselves. A large part of the report was an indictment of the Panthers, portraying them as a violent revolutionary organization that sought confrontation with the police. Ultimately, Jerris Leonard and the other authors of the grand jury report claimed they could not charge Hanrahan and the raiders “without the testimony and cooperation” of the survivors, even though they had access to the transcripts of the survivors’ people’s inquest testimony. “Given the political nature of the Panthers,” the authors said, “the grand jury is forced to conclude that they are more interested in the issue of police persecution, than they are in obtaining justice. It is a sad fact of our society,” they continued, “that such groups can transform such issues into donations, sympathy and membership, without ever submitting to impartial fact-finding by anyone. Perhaps the short answer is that revolutionary groups simply do not want the legal system to work.”
A footnote at the end of the grand jury report states: “Finally, the grand jury wishes to acknowledge the invaluable investigative contributions of the Federal Bureau of Investigation. Without the cooperation, professionalism and proficiency of this agency, the grand jury could not have completed its assignment.” The irony of this statement became much clearer years later.
“Well, the FBI’s firearms examination supports our clients’ accounts,” Skip said, after we came back together.
“If the raiders fired ninety to ninety-nine shots to the Panthers’ one, then what happened at 2337 was a massacre, not a shoot-out.” Flint added.
“But the grand jury, or I should say the federal prosecutors and FBI case agents directing the grand jury, refused to draw the obvious conclusions from what the physical evidence demonstrated,” Dennis responded.
“They never answered or even addressed the most important question of how Fred died. Was he deliberately assassinated?” I joined in.
“The report indicates there was an FBI informant who provided the same info as Groth’s informant. It would be good to find out who that is. Maybe there’s a connection between the disclosure of that informant and the dismissal of the Panther cases,” Flint said.
The worst thing was that the report’s heaviest criticisms of Hanrahan and the raiders were for their lack of care in planning the raid and their efforts to prejudice prospective jurors afterward rather than for their killing two people. The grand jury leveled stronger criticism at the Internal Investigations Division than at Hanrahan, calling it “so seriously deficient that it suggests purposeful malfeasance.”
“Well at least the grand jury recommended that police functions be done by the police, not the state’s attorney,” Flint said. “Taking guns away from Hanrahan is positive.”
“You know what?” Dennis said. “This report and its conclusions were written before the Panthers refused to testify three days ago. It’s too lengthy to have been written after. They had made up their minds not to indict anyone whether the Panthers testified or not, and then blamed it on the Panthers’ noncooperation. This is bullshit.”
The federal grand jury report satisfied neither side. While the headlines gave us some solace, the report ultimately equated the conduct of the police during the raid with the Panthers’ “antipolice” rhetoric. Hanrahan and the raiders had still gotten away with murder. Large segments of the black community reiterated their demands that the raiders be brought to justice. The Afro-American Patrolmen’s League continued to push for prosecution; the NAACP was pursuing its own investigation. Black community groups and liberal whites joined in demanding the appointment of an independent prosecutor.
Black politicians loyal to the Democratic Party withdrew their support for Hanrahan and joined the call for justice. Alderman Ralph Metcalfe, previously a staunch supporter of the mayor and the Democratic Party, led the movement of black politicians away from the Daley Machine. That fall Metcalfe’s independence got him elected United States congressman.
What could we do next? We were criminal defense lawyers who defended the movement. But now no criminal charges were pending against the Panthers, the raiders faced no charges, and there would be no trial to expose the police as the attackers.